Edmundson v. Commonwealth , 38 Pa. Commw. 231 ( 1978 )

Opinion by

Judge Craig,

The Commonwealth’s Secretary of Transportation suspended appellant’s motor vehicle operator’s license for six months, pursuant to then applicable Section 624.1(a) of the Vehicle Code,¹ for refusal to take the breathalyzer test.

The Court of Common Pleas of Allegheny County, at No. S.A. 1083 of 1976, dismissed an appeal of that suspension, and the present appeal followed. We affirm.

The lower court correctly found that appellant’s conduct at the police station following his arrest on charges of operating a motor vehicle while intoxicated amounted to a refusal to submit to the test. Appellant’s actions demonstrated something much less then unequivocal assent. See: Department of Transportation, Bureau of Highway Safety v. O’Rourhe, 25 Pa. Commonwealth Ct. 580, 361 A.2d 497 (1976).

The sole issue raised here is whether the Commonwealth had the burden of proving that the test was administered by qualified personnel on approved equipment.

Qualified administration of the test is clearly not at issue in a refusal case. Commonwealth v. Heresko, 28 Pa. Commonwealth Ct. 508, 368 A.2d 1357 (1977); Boyle v. Department of Transportation, Bureau of Traffic Safety, 19 Pa. Commonwealth Ct. 22, 339 A.2d 834 (1975).

Order

And Now, this 23rd day of October, 1978, the order of the Court of Common Pleas of Allegheny County is hereby affirmed.

1 Act of April 29, 1959, P.L. 58, as amended, added by Section 1 of the Act of July 28, 1961, P.L. 918, as amended, formerly 75 P.S. §624.1 (a), repealed by the Act of June 17, 1976, P.L. 162. A similar provision is now found in the Vehicle Code, 75 Pa.C.S. §1547.