Com., Dept. of Transp., Bureau of Traffic Safety v. Tillitt

• Decision Date: 14 February 1980
• Citation: 411 A.2d 276,49 Pa.Cmwlth. 343
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, Appellant, v. Scott W. TILLITT, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 276

411 A.2d 276

49 Pa.Cmwlth. 343

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION BUREAU OF TRAFFIC SAFETY, Appellant, v. Scott W. TILLITT, Appellee.

Commonwealth Court of Pennsylvania.

Argued Dec. 3, 1979.

Decided Feb. 14, 1980.

[49 Pa.Cmwlth. 344] Harold H. Cramer, Asst. Atty. Gen., Harrisburg, for appellant.

Robert R. Graff, Mohan & Graff, Pittsburgh, for appellee.

Before CRUMLISH, Jr., BLATT and CRAIG, JJ.

OPINION

BLATT, Judge.

The Bureau of Traffic Safety of the Department of Transportation seeks review of an order of the Court of Common Pleas of Allegheny County which sustained the license suspension appeal of Scott W. Tillitt (appellee).

The appellee was arrested by the Bethel Park police for driving while under the influence of intoxicating liquor. He was brought to the police station and was requested to submit to a chemical breath analysis. What then transpired is disputed, but the court below found in favor of the appellee, and so we must accept his version as true. His testimony was as follows:

"A. Right. They were filling out the report and then asked if I wanted to take the Breathelizer (sic). I said, 'No.' Otherwise, I was nervous, confused. I had never been arrested before. So I said, 'No' originally right away. I didn't even think about it. Then I thought about it for a couple minutes. I asked the consequences for it. 'Well,' he says, 'if you don't take it you are probably going to lose your license for six months.' At that time I think I better take it, then I said, 'No,' then I said 'Yes,' then I said, 'No, forget it.'

"Q. What was the end? Did you say yes or no?

"A. I did say 'yes' at the end. At that time I asked if I could use the phone.

"Q. Did any of the officers say anything to you at that time after you said your yes and no diatribe?

"A. Yes. At that time they said, 'We're not here to play games.' So at that I called my dad and told him I was arrested."

His father advised him to request the test again and said that he would leave at once for the station, where he arrived, according to the father's testimony, within four minutes. At the station the father requested the officers to allow his son then to take the test, but they refused.

A driver's refusal to take a breathalyzer test mandates suspension of his operator's license under Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547, and "we have consistently defined a refusal as anything Substantially short of an unqualified unequivocal assent to an officer's request to the arrested motorist." Department of Transportation, Bureau of Traffic Safety v. Pedick, 44 Pa.Cmwlth. 44, 47, 403 A.2d 181, 182 (1979) (emphasis added). Here, the common pleas court concluded that the appellee's delay in consenting to the test was not substantial, holding that "(t)he retraction of the refusal, and request that the test be administered all within moments, was a sufficient asset under the circumstances of this case."

Under Section 1547(b)(2) of the Vehicle Code, the police officer must inform the driver that his operating privilege will be suspended for refusal to submit to the test. We have previously observed that this section requires "prior warning of the consequence of refusing the test." Peppelman v. Department of Transportation, Bureau of Traffic Safety, 44 Pa.Cmwlth. 262, 265, 403 A.2d 1041, 1043 (1979). According to the appellee's testimony, accepted by the court below, he was not informed as to the consequences until...