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JOHN P. PEARSON v. COMMONWEALTH PENNSYLVANIA (12/14/88)

decided: December 14, 1988.

JOHN P. PEARSON, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Columbia County in the case of Commonwealth of Pennsylvania v. John P. Pearson, Jr., No. 892-1986.

COUNSEL

James F. Geddes, Jr., for appellant.

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

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 122 Pa. Commw. Page 92]

John P. Pearson, Jr. (Appellant) appeals from a decision of the Court of Common Pleas of Columbia County, which dismissed his appeal and sustained the Department of Transportation's (DOT) one-year suspension of Appellant's operator's license pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1). The trial court's decision is affirmed.

On June 29, 1986, Officer Hess was directing traffic in Nescopeck Borough, Luzerne County, when he observed Appellant operating a motorcycle without a helmet. Officer Hess attempted to stop Appellant, but he drove away with the officer in pursuit. Appellant was eventually stopped in Columbia County by Officer Lucas of the Briar Creek Township Police Department who responded to a radio call from Officer Hess. Officer Hess, who arrived and took charge after Officer Lucas apprehended Appellant, testified that he detected an

[ 122 Pa. Commw. Page 93]

    odor of alcohol on Appellant's breath and observed that Appellant's eyes were glassy and watery. Appellant became belligerent and demanded a blood test. N.T., pp. 2-6.

Appellant was transported to Berwick Hospital for a blood test pursuant to his request. While in the parking lot outside the emergency room, Appellant refused to sign the officer's implied consent form after being advised of his rights. Appellant then became equivocal as to whether he would take the blood test, initially agreeing to do so, then refusing, and agreeing once again, whereupon Appellant was escorted into the emergency room. A lab technician subsequently requested Appellant to sign a blood alcohol consent form which contained a release of liability provision (Form) prior to administration of the blood test. Appellant looked at the Form for ten seconds, then stated, "I ain't signing nothing," and refused to sign the Form or submit to the blood test. He immediately thereafter stated that he was afraid of needles and wanted to take a breathalyzer. N.T., pp. 6-8, 17-19, 25. Appellant feared contracting hepatitis or Acquired Immune Deficiency Syndrome (AIDS). Appellant was advised by Officer Hess that a refusal to take the blood test would result in a one-year suspension of his operating privileges. On appeal from his license suspension, the trial court dismissed Appellant's action noting that Section 1547 does not permit a motorist to select the type of chemical test to be administered and that a blood test may be required regardless of a motorist's fear of needles.

Issues presented for review are whether the arresting officer had probable cause to request a blood alcohol test; whether Appellant's refusal to sign a hospital waiver form and submit to a blood test was justified; and

[ 122 Pa. Commw. Page 94]

    whether the arresting officer had jurisdiction to arrest Appellant ...


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