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Pekar v. Commonwealth12/17/2003
driver's blood alcohol level when so requested by the driver. The statute as written, Appellant contends, is unconstitutional under the Fourth and Fourteenth Amendments to the United States Constitution as well as the Pennsylvania Constitution because use of the blood test is intrusive to an unnecessary and unwarranted degree where the driver has requested a breath test...
Initially, this Court notes that the United States Supreme Court has upheld as constitutional the use of compulsory blood tests to test blood alcohol content. South Dakota v. Neville, [459 U.S. 553 (1980)]; Schmerber [v. California, 384 U.S. 757 (1966)]. In South Dakota, the Supreme Court upheld a state statute similar to Section 1547 and stated that blood tests are so safe and painless that the state can legitimately compel a driver to take the test; and the right to refuse to take the test is a matter of grace bestowed by the legislature. This Court thus finds no distinctions in the Supreme Court holdings as argued by Appellant which would warrant a declaration that Section 1547 violates the United States Constitution...
Appellant next argues that Section 1547 violates the Pennsylvania Constitution by not employing the least intrusive testing available. Appellant loses sight of the fact that permission to operate a motor vehicle upon the highways of this Commonwealth is a privilege subject to such conditions as the legislature may see fit to impose. Department of Transportation v. Wysocki, [535 A.2d 77 (Pa. Cmwlth. 1987). Hence the Commonwealth may regulate the use of its highways as long as the conditions bear a rational relationship to a legitimate state objective. Sheakley v. Department of Transportation, [513 A.2d 551 (Pa. Cmwlth. 1986)], appeal denied, 515 Pa. 586, 527 A.2d 546 (1987). The objective of the implied consent law is to protect the public by providing an effective means of denying intoxicated motorists the privilege of using the highways of this Commonwealth and is a proper exercise of the Commonwealth's police power by the General Assembly. Hando v. Commonwealth, [478 A.2d 932 (Pa. Cmwlth. 1984)].
Section 1547 was challenged in Sheakley as violative of due process and equal protection rights when the police officer failed to inform Sheakley of the availability of the ARD (Accelerated Rehabilitative Disposition) program prior to requesting her to take a breathalyzer test purportedly rendering her refusal unknowing and uninformed. Although the arguments were different, the reasoning in Sheakley may be applied here. This Court premised its rejection of Sheakley's arguments on the basis that the privilege of operating a motor vehicle is not entitled to strict constitutional protection and that the legitimate state purpose to be protected was the prevention of alcohol-related traffic fatalities and injuries. Thus, Appellant has no constitutional right to refuse a test and moreover has no constitutional right to request a specific test. Commonwealth v. Hipp, [551 A.2d 1096 (Pa. Super. 1988)... It is within the legislature's power to establish conditions for the use of the highways, and as such, this Court therefore finds no constitutional infirmities within Section 1547.
Thus, the trial court did not err in dismissing Licensee's appeal from the suspension of her operating privilege pursuant to Section 1547 of the Vehicle Code, and Licensee's claim to the contrary is without merit.
Accordingly, the order of the trial court is affirmed.
ORDER
AND NOW, this 17th day of December, 2003, the order of the Court of Common Pleas of Allegheny County, dated June 5, 2003 at No. SA 289 of 2003, is affirmed.
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