*2 CAVANAUGH, Before HESTER, ROWLEY and JJ. HESTER, Judge: appeal
This from the judgment of sentence involves a single issue: whether trial court in erred refusing to suppress the results of a breathalyzer test. For the rea- follow, sons which we conclude that the trial court did not err, and affirm.
The record reveals appellant, that Jeffrey Wege, was driving arrested for under the influence of alcohol on Octo- 26, ber 1986.1 He entered a plea on guilty December 1986, which he successfully on withdrew March Thereafter, on May the trial court denied appel- lant’s pretrial motion to suppress, and appellant entered a plea of nolo contendere on July 1987. The court sen- tenced appellant to a term of incarceration of thirty days months, twenty-three plus the payment fines and costs. This appeal followed.
The facts of the case are as follows. On October 1986, Officer Ricky Williams of the Littletown Borough Police, observed appellant driving, a.m., at 1:25 at approxi- mately per five miles hour. When appellant crossed over the center line times, several Officer Williams put on his flasher and stopped appellant’s Appellant vehicle. attempt- ed to perform tests, several field sobriety but failed. The officer noticed that appellant’s bloodshot, eyes were his speech slurred, was and he had an odor of alcohol on his breath. Appellant was arrested taken to and the Gettys- burg Police Station administered Miranda where Appellant’s probation arrest occurred while on ARD for drunk However, driving. appellant probation never informed his officer of arrest, reason, this second and he was released from ARD. For that the Commonwealth did not seek revocation of ARD. Notes of Testi- 12/30/86, mony, at 6-7. warnings requested appellant to submit to a breathalyz- er test. twice but on the third request, to the test. The appellant’s submitted test indicated that .26 percent. blood alcohol level was
Appellant argued pretrial motion to suppress, and now, argues that inasmuch as 75 provides Pa.C.S. § that chemical shall not upon be conducted submit to such the police improperly requested appellant to submit to the after his initial refusal. He thus asserts that the trial court should have suppressed the results of the breathalyzer exam. We do agree. not 1547(b)(1)provides:
Section
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating under influence of alco- *3 substance) hol or controlled is requested to submit to so, chemical and refuses to do the shall not be conducted but upon police officer, notice the by the department suspend shall the operating of privilege the person period for a of 12 months. allege does not that he was coerced taking into
the test. He simply contends that once a test is the are prohibited, the by language of 75 Pa.C.S. 1547(b)(1), making from a subsequent request. §
We have stated that the of the purpose provision above prior enactments is “to acquisition facilitate the chemical analyses and to permit their utilization in legal proceedings.” Commonwealth v. 258 Tylwalk, Pa.Super. (1978). 393 A.2d 475 We do not believe appellant’s interpretation of 1547 is in keeping with such a purpose. nothing
There is in the statute that precludes an officer’s discretion in allowing an accused change his mind. Cor- poral Wright Dennis of the Police Gettysburg Department, who administered the breathalyzer, testified that it is the policy police department give each charged with under the influence three opportunities to take
184
breathalyzer
a
exam.2 Such benevolence is certainly not
Indeed, once an
required.
accused refuses to submit to
chemical
a
subsequent assent to the test need not
accepted.
Miller,
be
In
E.g.,
re
79 Pa.Cmwlth.
470
(1984). Indeed,
A.2d 213
the Miller court quoted with
approval
following
the
language
the opinion of the trial
court therein.
officers are not required to spend
“[P]olice
effort either cajoling the defendant or ... waiting to see if
the defendant will ultimately change
his mind.” Id. at
Although we have found no cases addressing precise case, issue in this there are many examples where police afforded an accused drunk driver more than one opportuni- ty to assent to chemical testing. See, e.g., Phillips v. Commonwealth, 84 Pa.Cmwth. (1984) A.2d 958 (police offered accused three opportunities to take a breath- alyzer test and one chance to test); submit to a blood In re Weitzel, 41 Pa.Cmwlth. (1979) A.2d 646 (police made requests four of accused to take exam).
We conclude that the police prohibited were not from extending appellant a second and third opportunity sub- mit to a breathalyzer by test the language of 75 Pa.C.S. 1547(b)(1). Accordingly, the judgment of sentence is af- firmed.
CAVANAUGH, J., files a dissenting opinion. CAVANAUGH, Judge, dissenting: *4 I respectfully dissent.
75 Pa.C.S.A. requires that the police officer inform a person under arrest for driving under the influ- ence that operator’s privileges suspended upon will be refusal to submit to testing he is subjected before to the (Pa.C.S.A. chemical testing. 1547(b)(2)). The defendant testimony 2. The notes of May suppression from the hearing have not opinion been compli- transcribed. The trial court issued in ance August with Pa.R.A.P. Corporal 1925 on sets forth Wright’s testimony. an is thus faced with informed choice. The law further if the under requires that arrest is requested to submit to chemical and refuses to do so—“the testing shall not be conducted.” I would read this statute’s to restrict the plain words efforts to have one already under arrest submit to chemical limited to a single I request repeated and refusal. believe that requests after would, circumstances, under the be far more likely interpreted as coercion rather than benevolence. (Two Cases) NESBITT,
In re ESTATE OF Abram Deceased. Appeal NESBITT, III, of Abram Natural Son of Abram (Two Cases) Nesbitt, 2nd.
Superior Court
Argued Jan. 1987. Sept.
Filed
Reargument Denied