Opinion
May 25, 1973.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P. L. 58 — Refusal of breath test — Driving while under the influence of intoxicating liquor — Acquittal of criminal charge — Burden of proof.
1. Provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, authorize the suspension of a motor vehicle operator's license of a licensee charged with driving while under the influence of intoxicating liquor who refuses a lawfully requested breath test, and the fact that the licensee was subsequently acquitted of the charge has no effect upon and is irrelevant to such suspension. [89]
2. In a motor vehicle operator's license suspension case where the suspension request is based upon a refusal to submit to a breath test, the Commonwealth need prove only that the licensee was arrested for driving while under the influence of intoxicating liquor, that the test was requested and that the test was refused, and the Commonwealth need not produce any evidence of actual intoxication. [89]
Submitted on briefs May 10, 1973, to Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 1095 C.D. 1972, from the Order of the Court of Common Pleas of Westmoreland County, in case of Commonwealth of Pennsylvania v. Thomas Jeffrey Clawson, No. 232 April Term, 1972.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Westmoreland County. Appeal sustained. RIAL, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Suspension order reinstated.
Jerrold D. Harris, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Charles E. Marker, with him Marker and McBride, for appellee.
Thomas Jeffrey Clawson was placed under arrest and charged with the operation of a motor vehicle while under the influence of intoxicating liquor. He refused the arresting officer's request that he submit to a chemical test and his license was suspended by the Secretary of the Department of Transportation by authority of Section 624.1(a) of The Vehicle Code, Act of April 29, 1959, P. L. 58, 75 Pa.C.S.A. § 624.1 (a). Mr. Clawson was acquitted of the criminal charge of driving while under the influence of intoxicating liquor. The court below, without the benefit of our holding to the contrary in Commonwealth v. Abraham, 7 Pa. Commw. 535, 300 A.2d 831 (1973), sustained the appeal based upon the acquittal. We must, therefore, reverse.
Counsel for Mr. Clawson makes the further argument that his client's appeal was properly sustained below because the Commonwealth produced no evidence concerning his client's condition of intoxication at the time of the incident which led to the request that he submit to the breathalyzer test. There is no such duty upon the Commonwealth. It need only show the arrest upon the charge of driving while intoxicated, the request to take the test and the refusal.
ORDER
And now, to wit, this 25th day of May, 1973, the order of the Court of Common Pleas of Westmoreland County is reversed, and the order of the Secretary of Transportation is reinstated. The reinstated suspension shall issue within thirty (30) days.