91 Pa. Commw. 646 | Pa. Commw. Ct. | 1985
Opinion by
The Bureau of Traffic .Safety of .the Department of Transportation (Bureau) appeals here an order of the Court of Common Pleas of Delaware County which reversed the license suspension of Janice O. Landau (appellee).
The appellee was arrested‘by the Nether Providence police for driving while under the influence of alcohol after she was involved in a one-car motor vehicle accident. While seated in the back seat of the arresting officer’s vehicle she was requested to submit to a chemical breath analysis, and she refused to do so. The officer explained to her that, by refusing the test, she would be subject to a six-month suspension of her driver’s license. He again asked her if she would submit to the test, and she refused a second time.
■ Pursuant to Section 1547 of the Vehicle Code, 75 Pa. C. S. §1547, a driver’s refusal to submit to a chemical breath test mandates suspension of her operator’s license.
The Bureau suspended the appellee’s license as a consequence of her refusal, and she took a de novo appeal to the court of common pleas. That court held that the officer’s testimony that he warned the appellee that her license “would be subject” to a suspension did not reflect a positive statement such as would constitute the proper warning required by our Court’s decision in Peppelman v. Department of Transportation, Bureau of Traffic Safety, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979). We held there that, inasmuch as Section 1547(b)(2) provides that it “shall be” an officer’s duty to inform a person that his operating privilege “will be” suspended, an officer who told a motorist that he “could” lose his license for refusing a chemical test had failed to comply with his clear and unambiguous duty to provide prior warning of the consequences of refusing the test. Id. at 264, 403 A.2d at 1042. The trial court here concluded that the appellee had not received a proper warning regarding her refusal to take the chemical test and, therefore, that the Commonwealth had failed to show that her refusal was a willful, intelligent and knowing act. Accordingly, it sustained her appeal.
The Bureau here argues that use of the phrase “subject to suspension” did not serve to qualify the warning provided, suggesting that such phrase represents a semantic distinction without a difference from the requisite warning that the operator’s license will be suspended.
In Peppelman we indicated that the warning or notice requirement is to be strictly construed. We
Accordingly, we will affirm the order of the Court of Common Pleas of Delaware County.
Order
And Now, this 16th day of September, 1985, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is affirmed.
At the time relevant to this action, 75 Pa. C. S. §1547' mandated a six-month suspension for refusing a chemical test. The current provisions prescribe a twelve-month suspension for a first refusal.