Summary
concluding that the refusal to submit to a procedure that contains requirements in addition to that of the actual test is not a refusal to take such a test
Summary of this case from The Village of Lincolnshire v. FollensbeeOpinion
December 19, 1983.
Motor vehicles — Suspension of operator's license — Scope of appellate review — Findings of fact — Error of law — Abuse of discretion — Refusal of breath test — Refusal to complete questionnaire — Refusal of performance test.
1. Review by the Commonwealth Court of Pennsylvania in a motor vehicle operator's license suspension case is to determine whether the findings of the lower court were unsupported by substantial evidence, an error of law was committed or discretion manifestly abused. [174]
2. A motor vehicle operator's license may properly be suspended when it is proved that the licensee was arrested for driving under the influence of alcohol, was requested to submit to a breath test, refused such test and was warned of the consequences of the refusal. [174]
3. A motor vehicle operator's license is improperly suspended for refusing a breath test when the licensee was requested to complete a questionnaire and to submit to a performance test as well as the breath test and was not correctly advised that submission to the breath test alone would avoid the statutory penalty for refusal. [175]
Submitted on briefs October 6, 1983, before Judges CRAIG, MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 1175 C.D. 1982, from the Order of the Court of Common Pleas of Washington County in case of Commonwealth of Pennsylvania v. Geraldine S. Sickman, No. 285 January Term, 1982 A.D.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Washington County. Appeal dismissed. RODGERS, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
D. Keith Melenyzer, for appellant. Glenn R. Davis, Assistant Counsel, with him Harold H. Cramer, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Geraldine S. Sickman (Appellant) appeals from an order of the Court of Common Pleas of Washington County which dismissed Appellant's appeal from a one year suspension of her driver's license by the Department of Transportation's Bureau of Traffic Safety (Bureau) under Section 1547(b) of the Vehicle Code (Code) for Appellant's failure to submit to a breathalyzer test. We reverse.
This Court's scope of review of a common pleas court's decision in a license suspension case is limited to determining whether the findings of the court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the common pleas court's decision demonstrates a manifest abuse of discretion. Waigand v. Commonwealth, 68 Pa. Commw. 541, 449 A.2d 862 (1982); McMahon v. Commonwealth, 39 Pa. Commw. 260, 395 A.2d 318 (1978).
To sustain a license suspension under Section 1547(b) of the Code, the Commonwealth must establish that the driver involved: 1) was arrested for driving while under the influence of alcohol, 2) was requested to submit to a breathalyzer test, 3) refused to submit to such a test and 4) was specifically warned that a refusal would result in the revocation of his driver's license. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commw. 605, 450 A.2d 235 (1982), Waigand.
The evidence before the court of common pleas in this case established that Appellant was arrested for driving while under the influence of alcohol and was taken to the police station, where she was requested to submit to a procedure which consisted of: 1) answering a questionnaire, 2) completing a performance test and 3) completing a breathalyzer test. Appellant initially agreed to this procedure but changed her mind during the questionnaire portion and refused to continue further with any part of the procedure, including that part involving the breathalyzer test. Appellant was informed that the failure to complete the entire procedure would result in her license suspension.
Section 1547 of the Code requires only that a driver submit to a chemical test of his breath, blood, or urine. There is no additional requirement that the driver complete a questionnaire or a performance test, and the refusal to do so will not support a suspension under Section 1547(b) of the Code. We are guided by this Court's decision in Maffei v. Department of Transportation, 53 Pa. Commw. 182, 416 A.2d 1167 (1980), in which we held that a driver's refusal to sign a waiver of liability as a condition of submitting to a blood test was not a refusal under Section 1547(b) of the Code.
Similarly, in this case we conclude that the refusal to submit to a procedure which contains requirements in addition to that of the actual breathalyzer test is not a refusal to take such a test for purposes of this section.
The Bureau attempts to distinguish the Maffei decision by noting that, in addition to refusing to submit to the unrequired portions of the procedure, the Appellant in the present case also specifically refused to take the breathalyzer test. Appellant's refusal to take the breathalyzer test was made after being informed by police that this test was only one portion of the required procedure, and that the refusal to submit to any portion would result in the suspension of her license. At no time did the police correctly inform Appellant that submitting to the breathalyzer test alone would be sufficient under the Code to avoid the penalty of license suspension. Therefore, this refusal cannot support a suspension under Section 1547(b).
The testimony of the police indicates that they often used the term "breathalyzer test" to refer to the entire procedure, which included the questionnaire and performance test, as well as the actual breathalyzer test. In light of this apparent misuse of terms by the police, their later testimony that Appellant specifically refused to take "the breathalyzer test" is of doubtful significance.
The police are required to inform the driver that the driver's "operating privilege will be suspended upon refusing to submit to chemical testing." Section 1547(b)(2) of the Code, 75 Pa. C. S. § 1547(b)(2) (emphasis added).
For these reasons, we conclude that the court of common pleas committed an error of law in dismissing Appellant's appeal, and accordingly, reverse.
ORDER
NOW, December 19, 1983, the Order of the Court of Common Pleas of Washington County in the above referenced matter, dated April 16, 1982, is hereby reversed.