Opinion
July 17, 1986.
Motor vehicles — Suspension of motor vehicle operator's license — Refusal of blood test — Questions not properly raised.
1. A trial court errs in a motor vehicle operator's license suspension appeal in considering an issue involving the necessity for a police officer to request hospital personnel to conduct a blood test when the issue was not raised by the parties before the court. [56]
2. The fact that a motor vehicle licensee submitted to blood tests given by hospital personnel prior to or subsequent to his refusal to submit to such test properly requested by a police officer does not excuse such refusal and avoid the license suspension resulting from such refusal. [57]
Submitted on briefs June 12, 1986, before Judge MacPHAIL, and Senior Judges ROGERS and BARBIERI, sitting as a panel of three.
Appeal, No. 3685 C.D. 1984, from the Order of the Court of Common Pleas of Butler County, in case of Commonwealth of Pennsylvania, Department of Transportation v. Glenn E. Murdock, MSD No. 84-024.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Butler County. Appeal sustained. BRYDON, J. Department appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Suspension reinstated.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Douglas E. Weinrich, for appellee.
The Department of Transportation, Bureau of Traffic Safety (DOT) appeals an order of the Court of Common Pleas of Butler County which sustained the appeal of Glenn E. Murdock (Appellee) from the suspension of his motor vehicle license. We reverse.
Appellee's license was suspended for his refusal to submit to a blood test pursuant to Section 1547(b) of the Vehicle Code, as amended, 75 Pa. C. S. § 1547(b). At the hearing before the trial court, Appellee argued that even though he had refused to take the test, he had substantially complied with the intent of the statute in that he subsequently submitted to a blood test from hospital personnel. The trial court reversed the suspension on the basis that inasmuch as Appellee was in the hospital when the officer was questioning him, the officer should merely have asked the hospital personnel to take blood from Appellee rather than requesting Appellee to submit to such a test.
As the issue of whether or not the officer should have requested hospital personnel to conduct such a test was not before the trial court, it erred in raising the issue sua sponte. Department of Transportation, Bureau of Traffic Safety v. Searer, 50 Pa. Commw. 468, 413 A.2d 1157 (1980).
In addition, the mere fact that a licensee has submitted to blood tests from hospital personnel prior to or subsequent to his refusal to accede to the request of the arresting officer does not absolve him from the mandated suspension provisions of Section 1547. See Department of Transportation, Bureau of Traffic Safety v. Emory, 91 Pa. Commw. 580, 498 A.2d 26 (1985).
ORDER
The order of the Court of Common Pleas of Butler County is reversed and the order of the Department of Transportation, Bureau of Traffic Safety, is reinstated.