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COMMONWEALTH PENNSYLVANIA v. PAUL DAVID MIHALAKI (02/06/89)

decided: February 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
PAUL DAVID MIHALAKI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Paul David Mihalaki v. Commonwealth of Pennsylvania, Department of Transportation, No. 1987-2895.

COUNSEL

Melissa K. Dively, Assistant Counsel, with her, Christopher J. Clements, Assistant Counsel, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.

Kevin J. Rozich, for appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 123 Pa. Commw. Page 354]

The Pennsylvania Department of Transportation (DOT) appeals from an order of the Court of Common Pleas of Cambria County, which sustained the appeal of Paul Mihalaki, and reversed DOT's suspension of Mihalaki's driver's license for one year for refusal to submit to chemical testing. We reverse.

Mihalaki was involved in an automobile accident on October 22, 1987. He was transported to the hospital, where Lieutenant Vitko of the Johnstown Police Department questioned Mihalaki about the accident. After smelling alcohol on Mihalaki's breath, the lieutenant arrested Mihalaki for driving while intoxicated, a violation of Section 3731 of the Vehicle Code (Code), 75 Pa. C.S. § 3731.

The following facts were then found by the trial court:

Officer Vitko then requested [Mihalaki] to submit to a blood test to determine the alcoholic content

[ 123 Pa. Commw. Page 355]

    of his system. 75 Pa. C.S.A. § 1547(a). [Mihalaki] replied he was afraid of needles and that he did not want to take a blood test until he contacted his attorney. Officer Vitko warned [Mihalaki] on three occasions that his license would be suspended for a period of twelve months should [Mihalaki] refuse to take the blood test.

[Mihalaki's] attorney could not be immediately located. When [Mihalaki] indicated he was still waiting for his attorney before he would agree to take the blood test, the officer stated he could not wait anymore and left the hospital. After finally reaching contact with his attorney, [Mihalaki] submitted to the blood alcohol test.

The trial court recognized that the only issue to be decided was whether Mihalaki's refusal to take the blood alcohol test before talking to his attorney constituted a refusal under the Code. While acknowledging the basic rule in Pennsylvania is that a request by a driver to contact his attorney in response to an officer's request to submit to chemical testing constitutes a refusal, see e.g., King v. Department of Transportation, Bureau of Traffic Safety, 81 Pa. Commonwealth Ct. 177, 472 A.2d 1196 (1984), the trial court nevertheless, concluded that recent decisions of this Court modified that rule so that even though the police officer is under no initial duty to inform the driver that he has no right to consult with an attorney before being tested, "once the driver requests to speak to a lawyer, the officer must inform him he has no such right ...


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