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Pekar v. Commonwealth12/17/2003
Elizabeth D. Pekar (Licensee) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) dismissing Licensee's statutory appeal from a one-year suspension of her operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to the provisions of Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547. , We affirm.
On March 10, 2003, DOT mailed Licensee an official notice of suspension which stated that her operating privilege was being suspended for one year effective April 14, 2003, as a result of her chemical test refusal on January 21, 2003. Licensee appealed the suspension to the trial court which conducted a de novo hearing on June 5, 2003. See N.T. 6/5/03 at 2-14. Based on the evidence presented therein, the trial court found the following facts.
On January 21, 2003, Officer Robert Ferrence of the Collier Township Police Department arrested Licensee for driving under the influence (DUI). After arresting Licensee, Officer Ferrence placed her in handcuffs, placed her in his car, and advised her that he was going to transport her to St. Clair Memorial Hospital to obtain a blood sample from her. After arriving at the hospital, and while waiting to register Licensee, Officer Ferrence read Licensee the implied consent warnings as outlined on DOT's Form DL-26. After he requested that Licensee submit to a blood test, Officer Ferrence asked Licensee to sign the form. After Licensee refused to submit to a blood test and sign the form, Officer Ferrence explained that she would lose her operating privilege for one year for failing to submit to the test. Nevertheless, Licensee refused to be tested. 6 At no time did Licensee inform Officer Ferrence that she failed to understand his instructions.
At the conclusion of the hearing, the trial court issued an order dismissing Licensee's appeal. Licensee then filed the instant appeal. The sole claim raised by Licensee in this appeal is that the trial court erred in dismissing her appeal as Officer Ferrence's request for a blood test was an "unreasonable" search in violation of Article 1, Section of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Specifically, Licensee asserts that Officer Ferrence could have asked her to submit to a breath test in order to ascertain her blood alcohol content. Licensee contends that as there was an alternative and less intrusive test available, Officer Ferrence's request that she submit to the more intrusive blood test violates the foregoing provisions of the Pennsylvania and United States Constitutions.
As noted above, Section 1547(a) of the Vehicle Code provides, in pertinent part, that " ny person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood..." 75 Pa.C.S. § 1547(a). It is well settled that the police officer, and not the licensee, has the option to choose which type of test will be conducted to determine the licensee's blood alcohol content. McGee v. Department of Transportation, 803 A.2d 255 (Pa. Cmwlth. 2002); Lemon v. Department of Transportation, 763 A.2d 534 (Pa. Cmwlth. 2000); Sladic v. Department of Transportation, 643 A.2d 1155 (Pa. Cmwlth. 1994).
Moreover, in Kostyk v. Department of Transportation, 570 A.2d 644, 647-648 (Pa. Cmwlth. 1990), this Court specifically considered Licensee's constitutional claims stating, in pertinent part:
ppellant suggests that the police officer employ a less intrusive means of testing the
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