Commonwealth v. Walthour
| Citation | 7 Phila. 467 |
| Decision Date | 20 May 1982 |
| Docket Number | 4603 |
| Parties | Commonwealth of Pennsylvania v. Jeremiah Walthour |
| Court | Commonwealth Court of Pennsylvania |
(1) The Vehicle Code provides that as a condition of the privilege of driving an automobile upon the public highways of this state the driver is deemed to have given his consent to a chemical test for the purpose of determining the alcohol content of his blood
(2) Under Section 1547(b) of the Vehicle Code, a driver arrested for driving under the influence of intoxicating liquor may not avoid the consequences of his refusal to submit to a breathalyzer test by claiming that he was incapable of making a knowing and conscious refusal by reason of his intoxication
(3) The fact that the driver's judgment and understanding in refusing the breathalyzer test may have been impaired by his voluntary intoxication will not negate the automatic six month suspension resulting from that refusal.
Samuel Peppers, Esquire, for Plaintiff
Maurice Levin, Deputy Attorney General, for the Commonwealth
Under Section 1547(b) of the Vehicle Code, one arrested for driving under the influence of intoxicating liquor is subject to a six-month suspension of his operator's license for refusal to submit to a breathalyzer test. The single issue presented in this case is whether an individual may avoid the revocation of his license by proving that his refusal was not knowing and conscious by reason of his intoxication.
The matter before this Court is the appeal of Jeremiah Walthour (hereinafter Walthour) from an order of the Secretary of the Pennsylvania Department of Transportation suspending Walthour's operator's license for a period of six (6) months pursuant to 75 Pa. C.S. § 1547(b).
Walthour had been arrested for driving while under the influence of alcoholic beverages and was taken to the Police Administration Building. There, Police Officer Lewis asked him to submit to a breathalyzer test for the purpose of determining the alcoholic content of his blood. Prior to this request, Officer Lewis read to Walthour the warnings required under 75 Pa. C.S. § 1547. Included among these was the advice that Walthour had the right to refuse to submit to said test, but that such a refusal would result in the suspension of his operator's license for six months. Thereafter, Walthour refused to take the test, and his license was suspended for six months.
On appeal, Walthour's only contention is that a defendant's refusal to submit to the breathalyzer test must be knowing and conscious. He further contends that when he was advised of his rights and of the consequences of a refusal to submit to the breathalyzer, he was so intoxicated that his refusal was not knowing or conscious.
The testimony of the arresting officer describing Walthour's condition at the time of his arrest supports this assertion, while Officer Lewis, who advised Walthour of his rights, had neither recollection nor notation relating to Walthour's condition. Under such circumstances, this Court is satisfied that Walthour did establish by a preponderance of the evidence that his refusal to take the test was not knowing or conscious by reason of his intoxication.
It is true that the Commonwealth Court of Pennsylvania has on numerous occasions suggested that in these circumstances the Commonwealth must establish that the driver (1) was placed under arrest for driving while under the influence of alcohol, (2) was requested to submit to the breathalyzer test, (3) was warned that his license would be revoked if he refused to take the test, and (4) refused to do so. The Commonwealth Court has further suggested, however, that notwithstanding proof of each of the above elements, the driver may avoid the suspension of his license by proving by competent evidence that he was incapable of making a knowing and conscious refusal to take the test, even if such a lack of capability is the product of voluntary intoxication. [1]
This Court, of course, is bound by and may not deviate from holdings of our appellate courts. A review of all of the cases cited will reflect, however, that the oft-repeated reference to the need for a " voluntary and conscious" refusal does not represent an actual holding by the Commonwealth Court of Pennsylvania. Indeed, that Court has never been required to rely on that proposition, because, in every case where the issue was presented, the trial court had found, as fact, that the driver was capable of making a knowing and conscious refusal to submit to a breathalyzer test. In no appellate case in this Commonwealth has intoxication which made the driver incapable of acting consciously and knowingly in refusing the breathalyzer served as a bar to the imposition of a suspension.
That the Commonwealth Court has never directly ruled on this issue was apparently recognized in Pratt v. Commonwealth, 62 Pa.Cmwlth. 55, 434 A.2d 918 (1981), where the Court noted at footnote 1, " Since we affirm the lower court's finding that Appellant was capable of making a knowing and conscious refusal to submit to the breathalyzer test, we need not address the Department's contention that a driver may not use extreme intoxication as a valid defense to his refusal to submit to the test . . ."
In summary, then, the statement relating to a " knowing and conscious refusal" has never been other than dictum in any opinion of the Commonwealth Court. Thus, in the absence of a definitive holding, this Court must decide this case with due regard for, but not subject to, prior statements of the Commonwealth Court.
After much consideration, it is the view of this Court that the fact that the driver's judgment and understanding in refusing the breathalyzer test may have been impaired by his voluntary intoxication, will not negate the automatic six-month suspension resulting from that refusal. [2]
Initially, it should be noted that § 1546(2) of the Vehicle Code provides that:
It shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended or revoked upon refusal to submit to a chemical test.
The statute nowhere states that an operator who is too intoxicated to understand the advice given him and the effect of his response, shall be excused from the resultant penalty. Moreover, our statute provides, in effect, that as a condition of the privilege of driving an automobile upon the public highways of this state, the driver is deemed to have given his consent to a chemical test for the purpose of determining the alcohol content of his blood. The statute itself states, inter alia: (a) General Rule -- " Any person who operates a motor vehicle in this Commonwealth shall be deemed to have given consent to a chemical test of breath . . ." The characterization of our statute as one based on an implied consent is consistent with our courts' construction of 75 Pa. C.S.A. 1547. Everhart v. Commonwealth, 54 Pa.Cmwlth. 22, 420 A.2d 12 (1980).
Courts in other jurisdictions have also considered this issue, and, repeatedly, have rejected the argument here made by Walthour. See New Jersey v. Quaid, 172 N.J. Superior Ct. 533, 412 A.2d 1087 (App. 1980); Dist. of Col. v. Onley, U.S. App., 399 A.2d 84 (1979); Holland v. Department of Motor Vehicles, 92 Cal.App.3d 25, 154 Cal.Rptr. 492 (1979); State of Minnesota v. Hauge, Minn., 286 N.W.2d 727 (1979); Carey v. Melton, 64 A.D.2d 983, 408 N.Y.S.2d 817 (1978); Dolan v. Rust, 576 P.2d 560 (Colo. 1978); Kaufmann v. State Department of Public Safety, 286 So.2d 723 (La. 1973); State of Washington Department of Motor Vehicles v. McElwain, 80 Wash.2d 624 (1972), 496 P.2d 963; Hoban v. Roe, 25 Ohio 2d 111, 267 N.E.2d 311 (1971); Cf. Gleason v. Melton, 79 A.D.2d 853, 434 N.Y.S.2d 494 (1980); Milner v. Department of Public Safety, 265 S.E.2d 310 (Georgia 1980); Wohlgemuth v. Pearson, 285 N.W.2d 102 (Nebraska 1979), Johnson v. Motor Vehicle Division, Dept. of Revenue, 556 P.2d 488 (Colorado 1976) (all of which repeat the dictum appearing in the Commonwealth Court, but similarly find a knowing and conscious refusal.)
It is true that in several of the cases from other jurisdictions the statute specifically provided that the driver's condition may not negate the implied consent if there was evidence of a conscious refusal. Nonetheless, these courts have recognized that even in the absence of a specific statutory provision, to allow the drunk driver to hide behind his own intoxication would be intolerable. Thus, in Kaufmann v. State Department of Public Safety, supra, the Court, while recognizing that the driver was conscious and, that intoxication could not negate consent under the statute, added:
In addition, we should not construe a statute so as to defeat its purpose or to lead to absurd results. The object of the statute is the testing of intoxicated drivers on the highways. Understandably, it should be expected that those apprehended would be drivers in some state of intoxication and with varying degrees of mental impairment as a result thereof. Our adoption of plaintiff's argument would have the practical effect of construing the statute so as to place the burden on the arresting officer to determine the state of mind of the one to whom he sought to administer the test and, therefore, of delaying the test until the subject was sober enough to understand that it was being offered to him. Adopting plaintiff's argument would have the further effect of excusing the most dangerous class of drivers on the highway, i.e., those who are not too drunk to drive but too drunk to know what is going on around them.
Similarly, in State of Minnesota Department of Highways v. Normandin, the Court stated:
The legislature never intended the 'implied consent' statute to excuse...
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