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COMMONWEALTH PENNSYLVANIA v. PATRICK M. O'CONNELL (03/06/89)

decided: March 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE,
v.
PATRICK M. O'CONNELL, APPELLANT



Appeal from the Order of the Commonwealth Court Entered on August 4, 1986, at No. 448 C.D. 1984, Reversing the Order of the Court of Common Pleas of Montgomery County, Civil Action - Law, Filed on January 19, 1984, at No. 83-11202. 99 Pa. Commonwealth Ct. 410, Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result.

Author: Papadakos

[ 521 Pa. Page 245]

OPINION OF THE COURT

This is the appeal of Patrick M. O'Connell, Appellant, from the Opinion and Order of the Commonwealth Court reversing an order of the Court of Common Pleas of Montgomery County which, in turn, reversed a one year suspension of Appellant's driving privileges imposed by the Pennsylvania Department of Transportation, Bureau of Traffic Safety (Department). The Department imposed the one year suspension on Appellant's motor vehicle operator's license for his refusal to take a breathalyzer test as required in Section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(b).*fn1

[ 521 Pa. Page 246]

It is undisputed that Appellant was operating an automobile which struck two parked cars in Abington Township, Montgomery County, on the evening of June 19, 1983. The Abington Township police officer who investigated the accident noticed a strong odor of alcohol on Appellant's breath and conducted a field sobriety test. When Appellant could not pass the test, the officer arrested Appellant for driving under the influence of alcohol. Appellant was immediately advised of his Miranda rights and taken to the Township Police Station where he was again given his Miranda rights in written form. The document was read to Appellant and he was asked to respond to each question in writing. Paragraph 6 of the form asked, "Do you want to talk to a lawyer at this time or have a lawyer with you while we ask you questions?" Appellant initially answered this question "No", but subsequently changed his answer to "Yes".

When Appellant had completed the form (with his changed answer to question 6), he was asked to take a breathalyzer test. At this point, the facts are somewhat disputed. Appellant testified before the trial court that he refused to take the test and that he told the officer that he was refusing because he had not been permitted to contact his attorney. The officer testified that Appellant refused three times and that he gave no reason for his refusal. The officer also testified that after the third refusal Appellant was permitted to call his lawyer and that following this conversation, Appellant was willing to submit to the breathalyzer test, but that the officer refused to administer the test because he had been unable to observe Appellant personally for the past 35-45 minutes.

[ 521 Pa. Page 247]

Appellant's refusal was reported to the Department and it imposed the mandatory one year suspension of Appellant's license pursuant to 75 Pa.C.S. § 1547(b). A timely appeal to the Court of Common Pleas followed. A hearing was held before the Honorable Albert R. Subers on January 9, 1984, where Appellant and the arresting officer testified as to what occurred on the night of June 19, 1983.

The trial court accepted Appellant's testimony as credible and concluded that his refusal was based on his mistaken belief that he had a right to speak with his attorney in regards to taking the breathalyzer test and that since no such right is recognized at law, Appellant's refusal could be excused as unknowing. The Department appealed the trial court's order vacating the one year license suspension to the Commonwealth Court and argued before that court that insufficient evidence existed to support the trial court's factual findings and that the police are not required to inform an arrestee that his right to speak to an attorney (assured by Miranda) does not extend to requests to submit to breathalyzer tests.

The Commonwealth Court reviewed the trial court's findings and found them to be unsupported by the record and therefore reversed the order of the trial court. The Commonwealth Court also reviewed its case law in breathalyzer testing situations and clarified its prior holdings, ruling that police officers have a duty to inform an arrestee that he has no right to speak with an attorney in regards to taking the breathalyzer test, only where the arrestee asks to consult with someone before making the decision to take the test. Commonwealth, Department of Transportation, Bureau of Traffic Safety v. O'Connell, 99 Pa. Commonwealth Ct. 410, 513 A.2d 1083 (1986).

We granted Appellant's petition for allowance of appeal to determine whether the proper scope of review was applied to this matter and to give guidance in the troublesome situation presented in cases such as this one, where a person is arrested for a crime, read Miranda rights, and is then told to submit to a breathalyzer test, but is not told

[ 521 Pa. Page 248]

    that his right to see an attorney does not extend ...


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