Books v. Commonwealth

Concurring Opinion

by Judge Blatt:

While I agree with the majority’s conclusion in this case, I believe that, under the circumstances, our opinion should address the issue of whether or not the appellant refused to take the blood test.

Police officers, of course, are not required to spend time either cajoling an arrestee or waiting for him to change his mind regarding his refusal to take a chemical test, pursuant to Section 1547(a) of the Vehicle Code, 75 Pa. C. S. § 1547(a). Department of Transportation, Bureau of Traffic Safety v. Ferrara, 89 Pa. Commonwealth Ct. 549 , 493 A.2d 154 (1985). And, a refusal to take a breathalyzer test is not vitiated by a subsequent consent and request by an arrestee to take the test. Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commonwealth Ct. 333 , 442 A.2d 407 (1982).

Where, however, as in the case sub judice, a police officer gratuitously offers an individual a subsequent opportunity to take one of the chemical tests enumerated in Section 1547(a) after a prior refusal, the prior refusal is waived. See Department of Transportation, Bureau *31 of Traffic Safety v. Krishak, 91 Pa. Commonwealth Ct. 307 , 496 A.2d 1356 (1985); see also Ferrara. I believe, therefore, that we should examine the circumstances surrounding the subsequent offer to determine whether or not there was a second refusal.

In Ferrara , we stated that “[although the police officer involved was under no duty to allow Appellee to consult with anyone, by telling her that she could call someone, he put himself under a duty to either allow her to do so or inform her that he had changed his mind.” Id. at 555-56 , 493 A.2d at 157 (emphasis in original). The same rationale is applicable here. Furthermore, where a police officer has made more than one request of an arrestee to take a chemical test, we have previously considered the circumstances surrounding the last request. See Bonise v. Department of Transportation, 102 Pa. Commonwealth Ct. 6 , 517 A.2d 219 (1986); see also Department of Transportation, Bureau of Driver Licensing v. Siegert, 98 Pa. Commonwealth Ct. 337 , 511 A.2d 268 (1986). Under the majority’s approach, here, however, it would be possible for an arrestee, who initially refused a chemical test, to lose his or her license, even though a subsequent test taken pursuant to a second offer by the police had revealed an absence of alcohol.

I believe, therefore, that our opinion should consider whether or not the appellant received a warning that a failure to submit to the blood test would result in a suspension of his license and whether or not his refusal was reasonable because of his fear of needles and AIDS.

I would note, of course, that the arresting police officer testified here that he did in feet warn the appellant of the consequences of his refusal to take the blood test but that the trial court did not reach that issue. The trial court, however, did properly conclude that the warning given prior to the breathalyzer test, pursuant *32 to Section 1547(a), encompassed “one or more chemical tests of breath, blood or urine” (emphasis added) so that no separate warning was required prior to the police officers gratuitous offer of a blood test. Furthermore, the appellant testified that, in refusing the blood test, he expressed neither his fear of needles nor of AIDS to the police. And, in Department of Transportation, Bureau of Traffic Safety v. Bartle, 93 Pa. Commonwealth Ct. 132 , 500 A.2d 525 (1985), we held that a refusal of a blood test due to a fear of needles nonetheless constituted a refusal. I believe, therefore, that the initial warning was sufficient to encompass both the breathalyzer and the blood test request, that the appellant refused both requests, and that, therefore, the order of the trial court suspending his license has properly been affirmed.