Opinion
April 30, 1973.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P. L. 58 — Refusal of chemical breath test — Driving under the influence of intoxicating liquor — Acquittal or dismissal of criminal charge.
1. Provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, authorize suspension of a motor vehicle operator's license by civil proceeding when a motor vehicle operator refuses to submit to a lawfully requested chemical breath test when placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor, although the licensee was not subsequently convicted of the criminal charge. [504-5]
Submitted on briefs, April 10, 1973, to Judges WILKINSON, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1002 C.D. 1972, from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. Kenneth R. Everett, No. 1052, April Term, 1970.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Westmoreland County. Appeal allowed. RIAL, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Suspension reinstated.
Stuart A. Liner, 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.
On April 11, 1970, Pennsylvania State Police Trooper Michael J. Cunningham arrested Kenneth R. Everett (appellee) for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended (Code), 75 Pa.C.S.A. § 1037. Following his arrest, appellee was asked by Trooper Cunningham to submit to a breathalyzer test, as provided in Section 624.1(a) of the Code, 75 Pa.C.S.A. § 624.1(a). Appellee refused to submit to this test and specifically so admitted his refusal when he testified before the lower court.
Appellee has raised no question here as to the legal propriety of his arrest.
Section 624.1(a) of The Vehicle Code, 75 Pa.C.S.A. § 624.1(a) provides in relevant part: "Any person who operates a motor vehicle or tractor in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood. . . . If any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. . . ."
Upon receiving a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellee's operator's license for three months, effective June 19, 1970. The Court of Common Pleas of Westmoreland County, after granting a supersedeas on June 18, 1970, held a hearing on September 21, 1972 and sustained appellee's appeal and reversed the Secretary's suspension. The Commonwealth has appealed that ruling to this Court.
The sole basis stated by the lower court for sustaining the appeal and reversing the suspension was that "[t]he magistrate having dismissed the charge of driving while under the influence of intoxicating beverages, the Court is therefore of the opinion that a suspension of the petitioner for refusal to submit to a breathalizer test is an abuse of discretion on behalf of the Secretary. . . ."
We realize that the lower court did not have the benefit of our recent decision in Commonwealth v. Abraham, 7 Pa. Commw. 535, 300 A.2d 831 (1973). In Abraham we held that despite the fact that the criminal charge (operating a motor vehicle while under the influence of intoxicating liquor) was dismissed, there remained the separate refusal to take the breathlyzer test, the suspension for which was a civil proceeding and within the power of the Secretary to impose in accord with Section 624.1(a) of the Code, 75 Pa.C.S.A. § 624.1(a).
This section does not require a conviction for the alleged violation of operating a motor vehicle while under the influence of intoxicating liquor, but the Legislature chose "placed under arrest," rather than subsequent conviction as the necessary prerequisite to justify a suspension for a refusal to submit to a chemical test of the breath. We held in Commonwealth v. Smith, Jr., 6 Pa. Commw. 78, 293 A.2d 158 (1972), that strict compliance with Section 624.1(a) is required. We have carefully noted the valid purpose for Section 624.1(a) in Department of Transportation v. Cannon, 4 Pa. Commw. 119, 286 A.2d 24 (1972), and Commonwealth v. Gallagher, 3 Pa. Commw. 371, 283 A.2d 508 (1971).
Since we conclude that here the facts are identical in all significant respects to Commonwealth v. Abraham, supra, we must hold that Abraham controls. Therefore, the order of the Court of Common Pleas of Westmoreland County is reversed and the order of the Secretary of Transportation is reinstated.