Petitioner, motorist, has filed an appeal from our order of October 4, 1994, wherein we denied his appeal and ordered the respondent, PennDOT, to reinstate the suspension of the motorist’s operating privileges. Pursuant to Pa. R.A.P. 1925, we herewith file this opinion to set forth the reasons for our order. We also note that our reasons are substantially set forth in the footnote to the order from which the motorist has appealed.
There are different ways in which the need for the police officer to give the O’Connell warning (that is, to advise the motorist that the motorist does not have the right to speak to an attorney prior to deciding whether or not to submit to chemical testing) can be triggered. Giving Miranda warnings to the motorist is one; having the motorist requesting to speak to an attorney, or to speak to anyone, is another; being given the opportunity to attempt to contact an attorney is but yet another such event. Indeed, although we think that Justice Papadakos overstates the case when he says that such warnings are required in all cases, PennDOT v. Ingram, supra, 648 A.2d at 295 (Papadakos, J., concurring and dissenting), we have no doubt but that the requirement that O’Connell warnings be given will be found to be present in an increasingly wide variety of circumstances but that is at least in part because the manner in which the requirement that the warnings be given
The motorist in this case does not seriously contest the fact that the O’Connell warning was given. The motorist contends that the warning is insufficient when the confusion is caused by permitting the motorist the opportunity to attempt to contact his lawyer and he is unable to do so and the motorist remains confused in fact. We reject this argument. The motorist did not have the right to speak to an attorney before submitting to the chemical testing. The motorist was clearly advised that he did not have the right to consult with an attorney or anyone else before submitting to the testing. The fact that the police officer voluntarily granted the motorist the opportunity to attempt to speak to his lawyer, even though the officer had no obligation to permit the motorist to do so, does not enlarge the rights of the motorist. So long as the motorist was clearly advised that he did not have the right to speak to an attorney prior to submitting to the chemical testing — and he was — the fact that he was permitted the opportunity to attempt to contact his attorney does not permit him to validly refuse to submit to the chemical testing when he is in fact unable to contact his attorney. To rule otherwise would be to unnecessarily restrict the ability of the police to voluntarily permit motorists the opportunity to contact attorneys even when motorists have no right to do so. We note that in this case the police officer did not record a refusal merely because the motorist requested to contact his attorney but, rather, permitted the motorist to attempt to contact his attorney and only recorded a refusal when, after those efforts were unsuccessful, the motorist persisted in his refusal to submit to chemical testing in spite of the information
Several cases are factually very similar to the instant case. Most striking is PennDOT v. Gomo, 157 Pa. Commw. 142, 629 A.2d 217 (1993), reversed, 538 Pa. 475, 649 A.2d 431 (1994). In Gomo, the motorist was requested to submit to chemical testing. The motorist stated that he would not do so until he spoke to his attorney. A police officer advised the motorist that he was not entitled to an attorney but, nevertheless, that they would try to accommodate him and allow him to attempt to call his attorney. The motorist apparently attempted to do so but the telephones were inoperative and the motorist was not able to reach his attorney after two attempts. The motorist then repeated that he was not taking the test until he spoke to his attorney and the police officer then advised him that “he was not entitled to an attorney.” Id. at 145 n.3, 629 A.2d at 219 n.3. The Commonwealth Court held that the explanation given to the motorist was insufficient because it did not contain various additional information but was limited to the instruction that the motorist “was not entitled to an attorney.” Id. at 148, 629 A.2d at 220. The Supreme Court reversed the Commonwealth
For the foregoing reasons, we entered the order from which this appeal has been taken.
