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

• Court: Commonwealth Court of Pennsylvania
• Writing for the Court: Stuart A. Liner, Dept. of Transp., Harrisburg, Anthony J. Maiorana, Asst. Atty. Gen., Robert W. Cunliffe, Deputy Atty. Gen.; MENCER
• Citation: 7 Pa.Cmwlth. 535,300 A.2d 831
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, Appellant, v. Anthony Michael ABRAHAM, Appellee.
• Decision Date: 26 February 1973

Page 831

300 A.2d 831 7 Pa.Cmwlth. 535 COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION,
BUREAU OF TRAFFIC SAFETY, Appellant,
v.
Anthony Michael ABRAHAM, Appellee. Commonwealth Court of Pennsylvania. Argued Dec. 7, 1972.
Decided Feb. 26, 1973.

Stuart A. Liner, Dept. of Transp., Harrisburg, Anthony J. Maiorana, Asst. Atty. Gen., [7 Pa.Cmwlth. 536] Robert W. Cunliffe, Deputy Atty. Gen., J. Shane Creamer, Atty. Gen., Dept. of Transp., Harrisburg, for appellant.

No appearance for appellee.

[7 Pa.Cmwlth. 535] Before CRUMLISH, Jr., WILKINSON, and MENCER, JJ.

[7 Pa.Cmwlth. 536] MENCER, Judge.

On May 4, 1970, on Route 56 in Cambria County, Anthony Michael Abraham (appellee) was apprehended for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1037, and, after being so charged, refused to submit to a breathalyzer test as provided in the so-called 'Implied Consent Law,' Section

Page 832

624.1(a), of the Code, 75 P.S. § 624.1(a). Having received a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellee's operator's license for six months, effective June 12, 1970. The Court of Common Pleas of Cambria County, after granting a supersedeas on June 11, 1970 (appellee's license was restored June 19, 1970), sustained appellee's appeal and reversed the Secretary's suspension. The Commonwealth has appealed to this court.

On September 21, 1970, the lower court, in a separate appeal, found appellee not guilty of operating under the influence of intoxicating liquor. The court therefore reasoned, in the suspension appeal, that where the court finds as a fact that the operator was not driving while under the influence of intoxicating liquor then the operator cannot be 'found guilty' of refusing to undergo a breathalyzer test.

This is clearly incorrect reasoning. Despite the fact that the charge against appellee was dismissed, there remains the separate refusal to take the test. For the simple reason that the suspension was a civil proceeding, and the acquittal was a result of a criminal proceeding, the Secretary acted properly. Accord, Appeal [7 Pa.Cmwlth. 537] of Walker, 20 Ches.Co.Rep. 154 (1972). As stated in Annot., 96 A.L.R.2d 612, 614 (1964),

'However, where those circumstances which were the basis of the revocation or suspension were also the basis of charges in a previous criminal case, it might seem to the laymen driver that the state has been allowed to try him twice for the same offense, and his notions of fair play might be injured all the more where the previous criminal prosecution resulted in a determination that he was 'not guilty.' Notwithstanding the notions of fair play entertained by laymen, however, what little authority there is on the subject holds that the later proceeding to revoke or suspend his license, since not intended as a punishment of the driver but designed solely for the protection of the public in the use of the highways, does not in the legal sense subject him to double jeopardy or punishment, nor is a judgment of...