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DALE K. MCCULLOUGH v. COMMONWEALTH PENNSYLVANIA (12/30/88)

decided: December 30, 1988.

DALE K. MCCULLOUGH, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Dale K. McCullough, No. 86-SU-02363-08.

COUNSEL

John J. Moran, II, for appellant.

Philip L. Zulli, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and 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 416]

Dale K. McCullough (Appellant) appeals from a decision of the Court of Common Pleas of York County which sustained the one-year suspension of Appellant's

[ 122 Pa. Commw. Page 417]

    operator's license by the Department of Transportation (DOT) pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. ยง 1547.*fn1 The trial court's decision is affirmed.

On May 1, 1986, Appellant was charged with driving under the influence of alcohol. The arresting officer conducted field sobriety tests and then transported Appellant to York Hospital where he requested Appellant to submit to a blood test. Appellant maintains that he refused the blood test because of his fear of needles and of contracting Acquired Immune Deficiency (AIDS) but that he would have taken a urine or breath test had either test been offered to him. Consequently, Appellant

[ 122 Pa. Commw. Page 418]

    received official notice on May 20, 1986 that his driving privilege was being suspended for one year.

Appellant appealed the action by DOT to the trial court on June 13, 1986. The sole issue before the trial court was whether Appellant's refusal to submit to a blood test based upon a fear of needles and of contracting AIDS constituted a refusal to comply with Section 1547 of the Code. The trial court concluded that even though it were to accept everything that Appellant stated as true, DOT's suspension was proper on the basis of Department of Transportation, Bureau of Driver Licensing v. Curran, 107 Pa. Commonwealth Ct. 1, 526 A.2d 1265 (1987).*fn2

The sole issue raised by Appellant before this Court is whether his refusal to take a blood test based upon a fear of needles and of contracting AIDS constituted a violation of Section 1547 in light of his willingness to submit to a urinalysis or breath test.*fn3 Appellant contends that the hospital was equipped to administer a urine or breath test and that no inconvenience would be caused to the arresting officer. In essence, Appellant claims that Section 1547 allows him to choose between chemical ...


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