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DONALD F. BARTELME v. COMMONWEALTH PENNSYLVANIA (12/02/88)

decided: December 2, 1988.

DONALD F. BARTELME, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from Allegheny County Common Pleas Court, Honorable Robert A. Doyle, Judge.

COUNSEL

Thomas G. Eddy, Eddy & Osterman, Pittsburgh, for appellant.

Harold H. Cramer, Christopher J. Clements, Asst. Counsel, John L. Heaton, Chief Counsel, David R. White, Asst. Counsel, Harrisburg, for appellee.

Barry and Smith, JJ., and Narick, Senior Judge. MacPhail, J., did not participate in the decision in this case.

Author: Narick

[ 128 Pa. Commw. Page 249]

Donald F. Bartelme (Appellant) has appealed from an order of the Court of Common Pleas of Allegheny County dismissing his driver's license suspension appeal.

The trial court made the following findings of fact which Appellant has not challenged: Appellant was stopped by an O'Hara Township police officer at approximately 3:15 a.m. on December 20, 1986 while proceeding south on a northbound ramp of Route 28. The officer testified that Appellant's speech was slurred and that he noticed a strong odor of alcohol on his breath. Believing that Appellant was operating his vehicle while under the influence of alcohol, the officer advised Appellant that he was placing him under arrest. Having done so, the officer transported Appellant to St. Margaret's Hospital for a blood test to determine the alcoholic content of his blood. He advised Appellant that he was not required to submit to the test, but that if he refused, his driver's license would be suspended for one year. Appellant refused, and the Department of Transportation (Appellee) suspended his license for one year pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. ยง 1547.

[ 128 Pa. Commw. Page 250]

On appeal to this Court, Appellant raises but one issue:*fn1 that the O'Hara Township police policy of requiring all persons suspected of driving under the influence to submit to a blood test is an unconstitutional application of Section 1547 of the Vehicle Code.

Section 1547 pertinently provides:

(a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance . . . .

The essence of Appellant's argument is that, because a blood test is the most intrusive type of search allowed by Section 1547, O'Hara Township's "blanket policy" of requiring a blood test in all cases, without regard to the circumstances of each case, is unconstitutional. Appellant concedes that the statutory section is not unconstitutional on its face and that there is nothing inherently wrong with allowing the police to exercise their discretion in determining which test to administer. Appellant argues that O'Hara Township's policy of ...


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