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KEVIN W. LANE v. COMMONWEALTH PENNSYLVANIA (03/16/89)

decided: March 16, 1989.

KEVIN W. LANE, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Adams County in the case of Commonwealth of Pennsylvania, Department of Transportation v. Kevin W. Lane, No. 88-S-476.

COUNSEL

Barbara Jo Entwistle, Pyle and Entwistle, for appellant.

Donald J. Smith, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellee.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 124 Pa. Commw. Page 247]

Kevin W. Lane (Appellant) appeals from an order of the Court of Common Pleas of Adams County dismissing his appeal of a one year suspension of his operator's license, for refusing to submit to a breath test, pursuant to section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b). We affirm.

Appellant was arrested for driving under the influence of alcohol (DUI) by State Trooper Graham. At the state police barracks, Trooper Graham requested that Appellant submit to a breath test and explained to Appellant the consequences of failing to submit to the test. Appellant refused to take the test. Trooper Graham then processed Appellant and released Appellant to his mother. Appellant and his mother left the police barracks. Approximately 20 minutes later, Appellant and his mother came back into the barracks, and Appellant asked Trooper Graham to let him take a breath test. Trooper Graham responded:

[ 124 Pa. Commw. Page 248]

I told him I would be willing to let him take an Intoxilyzer test to satisfy his curiosity but that the test would not be a legal test. It would have nothing to do with his refusal and that I would not use the results against him in Court again because it was not a legal test and had nothing to do with his actual incident.

N.T. at 8. Appellant testified that prior to administering the test Trooper Graham informed him that taking the test would not vitiate his prior refusal. N.T. at 15-16. Appellant was subsequently notified that his operator's license would be suspended for one year because of his refusal.

Appellant testified that as a result of the DUI charge he was admitted into the Accelerated Rehabilitation Disposition (ARD) program and his license was suspended for four months. N.T. at 13. Appellant also testified that, at Appellant's attorney's request, Trooper Graham testified as to the results of the breath test at the preliminary hearing on Appellant's DUI charge.*fn1 N.T. at 16. The results were used to Appellant's advantage in the ARD program to determine how long his license would be suspended as a result of the DUI charge.

Appellant appealed the suspension of his license to the trial court, which denied the appeal and affirmed the suspension. On appeal to ...


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