Opinion
Argued November 16, 1979
January 14, 1980.
Motor vehicles — Operator's license suspension — Breathalyzer test — Attorney.
1. A motor vehicle operator's licensee has no right to have an attorney present before deciding whether or not he will take the breathalyzer test, nor does he have a right, either constitutional or statutory, to be able to call an attorney before deciding whether or not to take the test. [480]
Argued November 16, 1979, before Judges MENCER, DiSALLE and CRAIG, sitting as a panel of three.
Appeal, No. 2098 C.D. 1978, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Jesse W. Sentle, Jr., No. SA 395 of 1978.
Suspension of motor vehicle operator's license by Department of Transportation. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. ZELEZNIK, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Bernard J. McAuley, with him James A. Dattilo, of Wayman, Irvin McAuley, for appellant.
John J. Kennedy, Jr., with him Harold H. Cramer, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellee.
The sole issue before us is whether the Court of Common Pleas of Allegheny County erred in affirming the 6-month suspension of Jesse Sentle's (Sentle) operating privilege for refusing to submit to a breathalyzer test, pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. § 1547(b).
The facts are not in dispute. Sentle was arrested on February 28, 1978, at 6:45 p.m., for driving under the influence of alcohol. He was taken to the police station at about 7 p.m. and was requested to take a breathalyzer test. Sentle refused and instead asked to see his attorney. Between 7 p.m. and 9 p.m., the arresting officer made numerous requests of Sentle to take the breathalyzer test, all of which were refused. At approximately 9:30 p.m., Sentle's counsel arrived, whereupon Sentle immediately requested a breathalyzer test. The officer refused to administer the test.
Sentle argues that his refusal to submit to the breathalyzer test before consulting with his attorney was based upon a substantial and valid reason. This argument is completely vacuous.
We have consistently held that "the licensee has no right to have an attorney present before deciding whether or not he will take the [breathalyzer] test, nor does he have a right, either constitutional or statutory, to be able to call an attorney before deciding whether or not to take the test." Weitzel Appeal, 41 Pa. Commw. 235, 236-37, 400 A.2d 646, 647 (1979). See also Department of Transportation, Bureau of Highway Safety v. O'Rourke, 25 Pa. Commw. 580, 361 A.2d 496 (1976); Department of Transportation v. Cannon, 4 Pa. Commw. 119, 286 A.2d 24 (1972); Morris Motor Vehicle Operator License Case, 218 Pa. Super. 347, 280 A.2d 658 (1971).
Since these cases clearly control the instant case, we enter the following
ORDER
AND NOW, this 14th day of January, 1980, the order of the Court of Common Pleas of Allegheny County, dismissing the appeal of Jesse Sentle in the above captioned case, is hereby affirmed.
This decision was reached prior to the expiration of the term of office of Judge DiSALLE.