Wall v. CommonwealthWall v. Commonwealth
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Lead Opinion
Opinion by
Judge Palladino,Regina M. Wall (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County which affirmed an order of the Pennsylvania Department of Transportation, Bureau of Traffic Safety (DOT) suspending her motor vehicle operating privileges for one year for failing to submit to a requested chemical test of her blood for alcohol content. We affirm.
Appellant was involved in a motor vehicle accident on September 22, 1985 in Upper Moreland Township. When the police officer arrived at the scene, Appellant was outside her car. Officer McCue testified that he *399detected the odor of alcohol on Appellants breath. N.T. at 6. Appellant testified that Officer McCue told her he smelled alcohol on her breath and asked her if she had been drinking, which she admitted. N.T. at 13. The officer administered a field sobriety breath test, using an instrument known , as an “alco-sensor.” Then Officer McCue arrested Appellant for violating section 3731 of the Vehicle Code,
DOT notified Appellant on October 14, 1985 that effective November 18, 1985 her license would be suspended for one year for violating section 1547 of the Vehicle Code,
On appeal to this court,1 Appellant contends: (1) that the field sobriety breath test was the equivalent of the first breathalyzer test post arrest for DUI; (2) that the request for a second breathalyzer test at the police station was unreasonable; and (3) that she was not given adequate ánd sufficient warning that her refusal of the second breath test at the police státion would result in a suspension of her motor vehicle operating privileges as required by
*400Effect of Field Sobriety Test
Appellant argues that she was under arrest prior to the field sobriety breath test being administered and therefore that breath test must be considered as one of the chemical tests for alcohol she is deemed to have consented to pursuant to
A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test in a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary *401breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e).
Reasonableness of Second Request
Appellant argues that Officer McCues request that she submit to a second breathalyzer test was unreasonable because it was unnecessary given the results of the field sobriety test and the first breathalyzer test. Officer McCue testified that he requested the second test pursuant to DOT regulation. N.T. at 6.
*402This court recently addressed the reasonableness of this regulation in Bush v. Commonwealth, 112 Pa. Commonwealth Ct. 510, 514, 535 A.2d 754, 756 (1988) and concluded:
[W]e hold that a request by a policeman pursuant to67 Pa. Code §77.24(b)(1) for a second breath test is per se reasonable and a licensees failure to consent to its administration amounts to a refusal to consent to a chemical test as required by75 Pa. C. S. §1547(a) and must suffer the consequences of a license suspension pursuant to75 Pa. C. S. §1547(b)(l) .
Therefore, Officer McCues request that Appellant submit to a second breathalyzer test was not unreasonable.
Adequacy of Warning
Appellant testified that the only time Officer McCue warned her that she could lose her motor vehicle operating license if she refused to submit to a breath test was at the scene of the accident prior to the field sobriety test. Officer McCue testified that he did not issue any warning prior to requesting that she submit to the field sobriety test and that he did warn her that her failure to submit to the second breathalyzer test at the station would result in her license being suspended.
The trial court, after noting the discrepancy in testimony, found that Appellant had been “adequately appraised [sic] of the consequences of her failure to comply with the requirement to take the breathalyzer test.” Commonwealth v. Wall (No. 219 June term 1986, filed December 2, 1986), slip op. at 4. Issues of credibility and resolutions of testimonial conflicts are for the trial court to decide. Campbell v. Department of Transportation, Bureau of Traffic Safety, 16 Pa. Commonwealth Ct. 9, 329 A.2d 867 (1974). Officer McCues testimony *403is sufficient to support the trial courts finding that Appellant had been adequately warned that her license would be suspended if she did not submit to a second breathalyzer test.
Accordingly, the order of the trial court is affirmed.
Order
And now, March 14, 1988, the order of the Court of Common Pleas of Philadelphia County in the above-captioned case is affirmed.
Notes
Our scope of review is limited to a determination of whether the findings of fact’ are supported by competent evidence, errors of law have been committed or whether the common pleas courts decision demonstrates a manifest abuse of discretion. Waldspurger v. Commonwealth, 103 Pa. Commonwealth Ct. 148, 520 A.2d 83 (1987).
This regulation was promulgated pursuant to
We note that Appellant does not contend that Officer McCue did not have “reasonable suspicion to believe [she was] driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol. . which
Dissenting Opinion
Dissenting Opinion by
Senior Judge Kalish:I respectfully dissent.
The Commonwealth contends that the first field test was simply a prearrest test given solely to determine whether appellant should be placed under arrest, in accordance with
In Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), our Supreme Court has said that the purpose and remedial objective of
In Bush v. Commonwealth, 112 Pa. Commonwealth Ct. 510, 535 A.2d 754 (1988), we held that this procedure requiring two consecutive tests establishes a scheme intended to ensure valid test results and that even though two consecutive tests, are required, the request for the second test is per se reasonable.
However, in the instant case, unlike Bush, where only one test involving the suspension was requested, the appellant submitted not only to that prearrest breath test, but was then requested to take the other test as well.
While