Appeal from the Suppression Order entered November 17, 1988, Court of Common Pleas, Montgomery County, Criminal Division at No. 2489-88.
Gerard T. Rosso, Asst. Dist. Atty., Norristown, for Com., appellant.
John P. Gregg, Norristown, for appellee.
Beck, Johnson and Hoffman, JJ. Hoffman, J., files a dissenting statement.
[ 388 Pa. Super. Page 263]
The Commonwealth appeals from a suppression court order ruling that evidence of Brian Ruttle's refusal to submit to a chemical test be excluded from his criminal trial for Driving Under the Influence of Alcohol or Controlled Substance. Finding that evidence of the defendant's refusal to submit to chemical testing is admissible in a criminal proceeding even though the defendant was not properly advised that his license would be suspended or revoked if he failed to consent to the test, we reverse the suppression order and remand.
[ 388 Pa. Super. Page 264]
From the evidence produced at the suppression hearing, the trial court determined that on March 20, 1988, Ruttle was found by the police at the site of a car accident. He was standing near his car and had a large head wound, slurred speech, a staggered walk and the odor of alcohol on his breath. The police took Ruttle to a hospital where his wound was treated and he was asked to submit to a blood test. Ruttle was told by the police that if he did not submit to the test there was a "possibility" that he could lose his license or that his license would be suspended for a year. Ruttle refused the test.
Ruttle was arrested and charged with violation of the following offenses: 1) Driving Under Influence of Alcohol or Controlled Substance; 2) Driving While Operating Privilege is Suspended or Revoked; 3) Reckless Driving; 4) Driving Vehicle at Safe Speed; 5) Violation Concerning Licenses; and 6) Chemical Testing to Determine Blood Alcohol Content. After a preliminary hearing, only the charges of Driving Under the Influence of Alcohol or Controlled Substance, and Driving While Operating Privilege is Suspended or Revoked were bound over for trial. Ruttle filed a pretrial omnibus motion for the suppression of evidence of his refusal to take a chemical test. After a hearing on November 17, 1988, the suppression court granted Ruttle's motion on the ground that he was not sufficiently warned that his refusal would result in the suspension of his license.
The Commonwealth appeals the order of the suppression court, contending that evidence that the defendant refused to submit to a chemical test is properly admissible in a criminal proceeding pursuant to 75 Pa.C.S. § 1547(e). The Commonwealth argues that 75 Pa.C.S. § 1547(e), does not condition such admissibility upon the defendant's being advised that his refusal will result in suspension of his license. Conversely, Ruttle reasons, as did the suppression court, that Commonwealth v. Hunsinger, 379 Pa. Super. 196, 549 A.2d 973 (1988) controls the outcome of this case because it is authority for the proposition that a refusal
[ 388 Pa. Super. Page 265]
may not be defined differently under 75 Pa.C.S. § 1547(b) than it is defined under 75 Pa.C.S. § 1547(e). He argues that because 75 Pa.C.S. § 1547(b) requires that a defendant be warned that his license will be suspended prior to his refusal, and because case law establishes that the absence of a proper warning will invalidate any subsequent refusal for the purposes of civil license suspension proceedings, then pursuant to Commonwealth v. Hunsinger, the refusal must also be invalid for the purpose of introducing evidence thereof into a criminal proceeding pursuant to 75 Pa.C.S. § 1547(e). The relevant statute, 75 Pa.C.S. § 1547, provides in pertinent part:
(a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the ...