Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal at No. 1863 CA 1987.
Michael Krout, York, for appellant.
Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
Wieand, Popovich and Hester, JJ. Wieand, J., files a concurring and dissenting statement.
[ 384 Pa. Super. Page 232]
This is an appeal from the judgment of sentence entered by the York County Court of Common Pleas following the appellant's conviction on the charge of Driving Under the Influence of Alcohol. 75 Pa.C.S.A. § 3731(a)(4) ("amount of alcohol by weight in the blood of the person is 0.10% or greater."). On appeal, the appellant, citing Com., Dept. of Transp. v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), alleges that the lower court erred by not suppressing the results of his blood test which was performed after he had already submitted to a pre-arrest breath test. He also contends that the lower court erroneously instructed the jury concerning the validity of the blood alcohol test. Finding no merit in either contention, we affirm.
Following a one car accident, the appellant, who was operating the vehicle, was interviewed by the investigating officer. Smelling alcohol on the appellant's breath, the officer advised the appellant that he suspected the appellant might be under the influence of alcohol and asked the appellant to undergo a field sobriety test. The test included a heel-to-toe walk test and a touch-your-nose test. The appellant did not perform the test satisfactorily, and the officer asked the appellant to take a pre-arrest breath test. The appellant agreed. The on-the-scene test resulted in a .19% blood alcohol content. The officer thereafter arrested the appellant for driving under the influence of alcohol. The appellant was placed under arrest and taken to Hanover General Hospital where he consented to a blood alcohol test. The blood test resulted in a .18% blood alcohol content. This blood test result was admitted into evidence at the appellant's trial while no mention of the pre-arrest breath test was made.
[ 384 Pa. Super. Page 233]
The appellant relies on McFarren, supra, in an attempt to have the result of his blood test suppressed. In McFarren, supra, our Supreme Court stated:
In order to justify a second intrusion [i.e. blood alcohol test], the police offer must establish circumstances which support the reasonableness of a second search. To hold otherwise would subject an individual to "unreasonable searches and seizures" in violation of Art. 1, § 8 of our Constitution . . . . However, requiring a blood test after completing a breathalyzer solely to enhance the evidence and guarantee a conviction is not "reasonable" under Art. 1, § 8 of our Constitution.
McFarren, 525 A.2d at 1188.
However, we find that McFarren, supra, is inapposite presently. The appellant was not subjected to two separate blood alcohol tests pursuant to 75 Pa.C.S.A. § 1547(a). Rather, the appellant first submitted to a pre-arrest breath test as expressly authorized in 75 Pa.C.S.A. § 1547(k) which states:
A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a devise approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether of not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any ...