Opinion
Argued October 31, 1977
December 16, 1977.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P.L. 58 — Driving while under the influence of intoxicating liquor — Refusal of breath test — Legality of arrest — Sufficient evidence.
1. Under The Vehicle Code, Act 1959, April 29, P.L. 58, the motor vehicle operator's license of a driver arrested for driving while under the influence of intoxicating liquor may be suspended if the driver refuses to submit to a requested breath test, and whether the arrest was lawful or unlawful is of no relevance. [65-6]
2. A finding by a trial court supported by competent evidence that a police officer, who observed an alleged traffic violation and who noted that the driver of the vehicle smelled of alcohol and appeared to be glassy eyed, had reasonable grounds to believe that the driver had been driving while under the influence of intoxicating liquor will not be disturbed on appeal. [65-6]
Argued October 31, 1977, before Judges WILKINSON, JR. and ROGERS, sitting as a panel of two.
Appeal, No. 2081 C.D. 1976, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. John M. Slimick, No. S.A. 1381 of 1976.
Suspension of motor vehicle operator's license by Bureau of Traffic Safety. Licensee appealed to the Court of Common Pleas of Allegheny County. Appeal dismissed. ROSE, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Harold Gondelman, with him Baskin, Boreman, Wilner, Sachs, Gondelman Craig, for appellant.
Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
John M. Slimick has appealed from an order of the Court of Common Pleas of Allegheny County dismissing his appeal from an order of the Bureau of Traffic Safety of the Department of Transportation suspending his operating privileges. The suspension resulted from Slimick's refusal to take a breathalyzer test. Section 624.1 (a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 Pa.C.S.A. § 624.1 (a).
A police officer testified at the de novo hearing in the court below that an automobile operated by Slimick passed his, the police officer's official vehicle, in an intersection and that he believed that this was a violation of a provision of The Vehicle Code prohibiting passing in intersections. Section 1008(c), 75 Pa.C.S.A. § 1008(c). The police officer further testified that he stopped Slimick and then observed that Slimick smelled of alcohol and that his eyes appeared to be glassy. The police officer arrested Slimick for driving under the influence of intoxicating liquor and took him to a police station. Slimick there refused to take the breathalyzer test.
Asserting, on the basis of testimony of the police officer elicited on cross-examination, that the police officer had no probable cause for stopping Slimick for a driving offense, Slimick's astute counsel argues that his client's subsequent arrest for drunk driving was also unlawful, and that the unlawful arrest made the request to take the test improper. Slimick's counsel concedes that the law on this point is all against him but asks us, and may wish to ask higher authority, to reconsider the case law on the subject. Since the Supreme Court of Pennsylvania in Glass v. Department of Transportation, 460 Pa. 362, 333 A.2d 768 (1975), held that the propriety of the request for a chemical test is not dependent on the legality of the arrest, our review of the law would be lese majeste. For a case decided by the Court subsequent to Glass on the same issue see Department of Transportation v. Barrett, 22 Pa. Commw. 559, 349 A.2d 798 (1976).
It seems also to be argued in Slimick's behalf that the police officer had no reasonable grounds for believing that Slimick had been driving while under the influence of intoxicating liquor, which Section 624.1(a) makes a condition precedent to suspension for refusing the breathalyzer test. Department of Transportation v. Shultz, 25 Pa. Commw. 598, 360 A.2d 754 (1976). The learned Judge of the court below found that Slimick's condition as described by the officer provided reasonable grounds for the police officer's belief that Slimick had been driving while under the influence of intoxicating drink. We have reviewed the record and find that it contains facts more than adequately supporting this determination.
Affirmed.
ORDER
AND NOW, this 16th day of December, 1977, the order of the Court of Common Pleas of Allegheny County, dated November 22, 1976, dismissing the appeal of John M. Slimick from the suspension of his operating privileges, is affirmed.