Commonwealth v. Murdock

Jul 17, 1986
Appeal, No. 3685 C.D. 1984
Reporters:
, ,
Before:
MacPhail

Opinion by

Judge MacPhail,

The Department of Transportation, Bureau of Traffic Safety (DOT) appeals an order of the Court of Common Pleas of Butler County which sustained the appeal of Glenn ‍‌​‌​​​‌​​‌‌‌​‌​​​‌​‌‌‌‌‌​​​​‌​​‌​​​‌​‌​​‌​​​‌‌​‌‌‌‌​​‌​​​‌​​‌​​​​​​‌‌‌‌‌‌‌‌​‌‌​​‌​‌‌​‌‌‌‌​‌‌​‌​​‍E. Murdock (Appellee) from the suspension of his motor vehicle license. We reverse.

Appellees license was suspended for his refusal to submit to a blood test pursuant to Section 1547(b) of the Vehicle Code, as amended, 75 Pa. C. S. §1547(b). At the hearing before the trial court, Appellee argued that even though he had refused to take the ‍‌​‌​​​‌​​‌‌‌​‌​​​‌​‌‌‌‌‌​​​​‌​​‌​​​‌​‌​​‌​​​‌‌​‌‌‌‌​​‌​​​‌​​‌​​​​​​‌‌‌‌‌‌‌‌​‌‌​​‌​‌‌​‌‌‌‌​‌‌​‌​​‍test, he had substantially complied with the intent of the statute in that he subsequently submitted to a blood test from hospital personnel. The trial court reversed the suspension on the basis that inasmuch as Appellee was in the hospital when the officer was. questioning him, the officer should merely have asked the hospital personnel to take ‍‌​‌​​​‌​​‌‌‌​‌​​​‌​‌‌‌‌‌​​​​‌​​‌​​​‌​‌​​‌​​​‌‌​‌‌‌‌​​‌​​​‌​​‌​​​​​​‌‌‌‌‌‌‌‌​‌‌​​‌​‌‌​‌‌‌‌​‌‌​‌​​‍blood from Appellee rather than requesting Appellee to submit to such a test.

As the issue of whether or not the officer should have requested hospital personnel to conduct such a test was not before the trial court, it erred in raising the issue sua sponte. Department of Transportation, Bureau of Traffic Safety v. Searer, 50 Pa. Commonwealth Ct. 468, 413 ‍‌​‌​​​‌​​‌‌‌​‌​​​‌​‌‌‌‌‌​​​​‌​​‌​​​‌​‌​​‌​​​‌‌​‌‌‌‌​​‌​​​‌​​‌​​​​​​‌‌‌‌‌‌‌‌​‌‌​​‌​‌‌​‌‌‌‌​‌‌​‌​​‍A.2d 1157 (1980).

*57In addition, the mere fact that a licensee has submitted to blood tests from hospital personnel prior to or subsequent to his refusal to accede to the request of the arresting officer does not absolve him from the mandated suspension provisions of Section 1547. See Department of Transportation, Bureau of Traffic Safety v. Emory, 91 Pa. Commonwealth Ct. ‍‌​‌​​​‌​​‌‌‌​‌​​​‌​‌‌‌‌‌​​​​‌​​‌​​​‌​‌​​‌​​​‌‌​‌‌‌‌​​‌​​​‌​​‌​​​​​​‌‌‌‌‌‌‌‌​‌‌​​‌​‌‌​‌‌‌‌​‌‌​‌​​‍580, 498 A.2d 26 (1985).

Order

The order of the Court of Common Pleas of Butler County is reversed and the order of the Department of Transportation, Bureau of Traffic Safety, is reinstated.