Smolick v. Commonwealth

Opinion by Judge Williams, Jr., Thomas P. Smolick (appellant) appeals from an Order of the Court of Common Pleas of Lehigh County which affirmed the suspension of appellant’s oper *181 ator’s license ordered by tbe Director of tbe Burean of Traffic Safety, Department of Transportation pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C. S. §1547. Appellant was arrested by an Allentown police officer on November 25, 1979 for driving under tbe influence of alcohol in violation of Section 3731 of tbe Code, 75 Pa. C. S. §3731. He was asked to submit to a breathalyzer test. He consented initially but then refused to do so except upon tbe condition that tbe police department indicate in a written statement that appellant bad done bis drinking at home. When tbe officers refused to put tbe requested statement in writing, appellant refused to take tbe test. Appellant’s principal argument on appeal is that tbe words of tbe officers here involved merely conveyed tbe message that bis license might be in jeopardy. As such, be argues, tbe words of tbe officers are violative of tbe specific provisions of Section 1547 of tbe Code, 75 Pa. C. S. §1547(b)(2) which provide: “It shall be tbe duty of the police officer to inform tbe person that tbe person’s operating privilege will be suspended or revoked upon refusal to submit to a chemical test.” At this point we state from tbe arresting officer’s testimony: I advised him that be bad tbe right to refuse to take tbe test, but that if be refused tbe State could — would and could — could and would remove bis license for six months on a refusal.... I took him to Sergeant Kerrigan who is qualified to give tbe breathalyzer test, and that’s when be refused to take tbe test. Officer Kerrigan testified that be advised appellant that be “stood to lose bis license” for refusing to *182 take the test, and that he repeated this to appellant three or four times, but each time appellant refused. ■ Appellant relies on this Court’s decision in Peppelman v. Commonwealth, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979) for his contention that he was not sufficiently warned that a refusal to take the breathalyzer test would result in the suspension of his license. In Peppelman, the motorist was informed that he could lose his license for refusal to take the test. We held there that the use of the word “could” instead of “will” in informing the motorist of the consequences of refusal was not adequate. After reviewing the record in the instant case, however, we must agree with the lower court that we have here more than the ambiguous language in Peppelman. We believe our decision in Everhart v. Commonwealth of Pennsylvania, 54 Pa. Commonwealth Ct. 22, 420 A.2d 13 (1980) controls the instant case. In that case, we defined the prerequisite to suspension or revocation of driving privileges for refusal to consent to a breathalyzer test: “a precisely enunciated warning that a driver’s license will be revoked.” From the record before us, the arresting officer informed appellant in the interviewing room of the police station that he had a right to refuse to take the breathalyzer test, and if he refused to take it, the state “could and would” take his license for six months. He is later told by the officer in charge of operating the breathalyzer that “you stand to lose your license.” As noted by the court below, the language used by the officers here, while less than ideal, clearly informed the appellant that refusal to take the breathalyzer test would result in a suspension of his license. The words “could and would” referred to in the testimony of the arresting officer, when recalling what was told to the appellant, are simply the past tense of *183 the words “can and will,” respectively. We believe these words meet the standards set in Everhart. Accordingly, we will affirm the order of the court below. Oedee And Now, the 25th day of June, 1981, the Order of the Court of Common Pleas of Lehigh County, dated February 8,1980 at No. 79-C-4051, is hereby affirmed.