Appeal from Common Pleas Court, Bucks County, Honorable George T. Kelton, Judge.
John J. Kerrigan, Jr., Stuckert and Yates, Newtown, for appellant.
Thomas Hines, Philadelphia, Harold H. Cramer, Asst. Chief Counsel, Christopher J. Clements, Asst. Counsel, John L. Heaton, Chief Counsel, Harrisburg, for appellee.
Craig and Barry, JJ., and Blatt, Senior Judge. Barry, J., dissents.
[ 127 Pa. Commw. Page 480]
This Vehicle Code appeal by P.A. Colgan, a driver licensee, is from an order of Judge George T. Kelton of the Court of Common Pleas of Bucks County sustaining a one-year suspension of the driver's license by the Pennsylvania Department of Transportation (DOT) under 75 Pa.C.S. § 1547(b) for refusing to submit to chemical testing for alcohol. We affirm.
The precise issue is whether a driver's insistence upon a testing procedure which results in an undersized blood sample, in the face of the definition of an adequate sample being communicated to him, constitutes a refusal of chemical test warranting a suspension under the Vehicle Code provisions.
The undisputed facts are that a police officer of Falls Township, with grounds to believe that the driver was under the influence of alcohol, arrested him and asked him to submit to a breathalyzer test, with the requisite warnings as to the consequences of refusal. Acceding to the driver's preference for a blood test rather than a breath test, the police officer conducted the driver to a hospital for a blood test. When the doctor began to prepare the driver's forearm for the withdrawal of a blood sample, the driver declined to permit a sample to be taken from that portion of his anatomy.
Concerning two further facts, the record shows conflicting testimony. The officer testified that the driver insisted that blood be taken only from his little toe on the left foot. The driver contends that he sought to restrict withdrawal only to his foot in general. The trial judge, empowered to act as factfinder, specifically found that the driver "demanded that the blood be drawn from his left little toe area. (Officer Jones, N.T. 9, 15 and licensee N.T. 19)."
The trial judge's concluding finding was that:
[ 127 Pa. Commw. Page 481]
The spattering of blood obtained turned out to be an insufficient sample for the two tubes which defendant was told were required. (Emphasis added).
With respect to the emphasized portion of the foregoing finding, the police officer testified that he had advised the driver "that we had to take two tubes of blood which the blood alcohol kit calls for." The driver denied being so informed. Again, the ...