Opinion
June 3, 1985.
Motor vehicles — Suspension of motor vehicle operator's license — Refusal of breath test — Escape from custody.
1. A motor vehicle operator cannot escape the sanction of a license suspension for failure to submit to a properly requested breath test on the grounds that he escaped from custody before the test was administered because of police negligence. [604]
Submitted on briefs May 7, 1985, to Judges CRAIG and PALLADINO and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 12 T.D. 1984, from the Order of the Court of Common Pleas of Dauphin County in case of Commonwealth of Pennsylvania v. Alan Bruce Chronister, No. 3538 S 1983.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Dauphin County. Suspension affirmed. Appeal dismissed. MORRISON, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Herschel Lock, Lock Lock, for appellant.
Lawrence R. Wieder, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Motorist Alan Chronister has appealed from an order by Judge MORRISON of the Court of Common Pleas of Dauphin County, which affirmed the suspension of his motor vehicle driver's license under 75 Pa. C. S. § 1547(b)(1) for refusing to take a breathalyzer test for alcohol intoxication.
After the Hampden Township police had detained Mr. Chronister for driving while intoxicated and had obtained from him an expression of willingness to take the test, he escaped from the police station and returned home before the police completed arrangements to administer the test.
The classic illustration of chutzpah — as the attitude of one who murders his parents and then seeks mercy because he is an orphan — is weak by comparison with Mr. Chronister's contention in this case, that the police were "wrongdoers" because they failed to chain and shackle him to prevent his escape. Pursuant to that novel analysis, the motorist here claims that (1) he was not under arrest as the terms of 75 Pa. C. S. § 1547(b)(1) require, and (2) he bears no responsibility for being absent when it came time to take the test because the wrongdoing of the police is to blame.
Without doubt, Mr. Chronister was under arrest; the police took him into custody when they initially separated him from his own automobile and conveyed him to the police station. Gresh v. Department of Transportation, 76 Pa. Commw. 483, 464 A.2d 619 (1983) (arrest is established by factual effect of police presence and control, even without an arrest declaration or physical constraint such as handcuffing).
Moreover, in view of Mr. Chronister's compliant demeanor before his escape, the police committed no legal error when they left him unshackled. As Judge MORRISON's opinion correctly points out, Mr. Chronister cannot rely upon his own voluntarily-assumed intoxicated condition to disown personal responsibility for his unbidden departure and consequent avoidance of the required test. See Walthour v. Department of Transportation, Bureau of Traffic Safety, 74 Pa. Commw. 53, 458 A.2d 1066 (1983) (intoxication no excuse for inability to take breathalyzer test).
Judge MORRISON's sound decision is affirmed.
ORDER
NOW, June 3, 1985, the order of the Court of Common Pleas of Dauphin County, dated December 21, 1983 is affirmed.