Light v. Commonwealth, Department of Transportation, Bureau of Driver Licensing , 1997 Pa. Commw. LEXIS 185 ( 1997 )

RODGERS, Senior Judge,

dissenting.

I respectfully dissent. In Department of Transportation v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987), the court said:

In order to justify a second intrusion, the police officer must establish circumstances which support the reasonableness of a second search... .A second test may be proper if the first test was inconclusive due to faulty equipment or faulty performance by the individual... .Accordingly, we hold that § 1547(a) authorizes a police officer to request a chemical test for alcohol provided that probable cause exists for the initial stop. If more than one test is requested, the police officer must offer sufficient evidence to establish the “reasonableness” of such a request.

In this case, the defendant, Light, stipulated the police officer had probable cause for the initial stop. Officer Kennedy, the arresting officer, testified he was informed by a fellow officer, Corporal Kelly, the breathalyzer operator, that the equipment was faulty. This evidence was not disputed. Indeed, at the hearing, the defendant confirmed that the breathalyzer and the breath test “didn’t work.” (R. 11,12.)

When informed by Corporal Kelly that the equipment was faulty, Officer Kennedy had to decide on the basis of the circumstances then existing whether he should order the defendant to submit to a blood test. Those circumstances were (l) probable cause for the initial stop, (2) the credibility of Corporal Kelly, and (3) the absence of any evidence that the failure of the breath test was due to any reason except faulty equipment. The trial judge decided under the circumstances that the arresting officer acted reasonably. The trial judge also found that Corporal Kelly’s statement to Officer Kennedy that the breathalyzer was not working was admissible to prove Officer Kennedy’s state of mind at the time he was required to decide whether to request the blood test, and, hence, was not hearsay when offered for that purpose.

I would affirm the decision of the trial judge.