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JOHN CARMEN MARMO v. COMMONWEALTH PENNSYLVANIA (11/18/88)

decided: November 18, 1988.

JOHN CARMEN MARMO, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Berks County in the case of Commonwealth of Pennsylvania v. John Carmen Marmo, No. 346 April, 1984 A.D.

COUNSEL

Peter David Maynard, for appellant.

Harold H. Cramer, Assistant Counsel, with him, John L. Heaton, Chief Counsel, for appellee.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Judges Craig, Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Doyle.

Author: Doyle

[ 121 Pa. Commw. Page 192]

By order of this Court dated September 6, 1988, we granted the application of the Department of Transportation (Department), to reconsider our opinion and order filed previously which had reversed the suspension of driving privileges of John Carmen Marmo (Licensee) for one year for refusing to take a breathalyzer test pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547.

The Department's application for reconsideration was essentially grounded on two assertions; that in our opinion and order filed June 23, 1988, we misapprehended facts of record material to the outcome of the case, viz.:

(a) in our opinion (slip op. at 3) we specifically found that "the Commonwealth [Department] has inexplicably conceded that the refusal at the hospital was not a refusal under the Code," to which the Department

[ 121 Pa. Commw. Page 193]

    contends "the Department has not conceded that Marmo's actions at the hospital were not a refusal," and

(b) "as the Commonwealth Court's opinion points out, the Commonwealth was required to file its brief in this case under order of the Commonwealth Court before the trial court had an opportunity to file its opinion in this matter."

Some brief explanation of the underlying substantive facts, and subsequent tortured procedural history, is important for an understanding of the issues.

Licensee was arrested at the scene of an automobile accident for DUI on December 23, 1983 and, after he consented to take a breathalyzer test, he was taken to the local police station for the test pursuant to Section 1547 of the Code. At the police station, Licensee first requested that he be allowed to go to the bathroom, which the arresting officer without hesitation permitted him to do. He then requested that he be taken to the hospital, and again the police officer accommodated Licensee. The following testimony of the arresting officer, represents the total extent of evidence ...


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