dissenting.
I respectfully dissent.
As the majority correctly points out, the Pennsylvania Department of Transportation (DOT) argues that there is no limitation on who can validly request that a motorist submit to chemical testing. In response, the majority states that it believes “that such a broad interpretation of Section 1547 of the Vehicle Code fails to protect adequately the rights of motorists who will lose their operating privileges for twelve months 'based on their refusal to submit to testing.” With this statement, I wholeheartedly agree.
However, the majority then proceeds to hold that where a police officer has informed the licensee of the Implied Consent Law, a person authorized to take a sample of the licensee’s breath, blood or urine may request that the licensee submit to chemical testing if the request is made in the presence of a police officer. I believe that such a holding is also too broad of an interpretation of Section 1547 to adequately protect the rights of motorists who will lose their operating privileges for a refusal to submit to chemical, testing.
I believe that once a police officer has stopped a motorist and has reasonable grounds to believe that the motorist is driving under the influence, the chain of authority has begun and cannot be relinquished under any circumstances. Only an officer of the law has the authority to detain a motorist for suspicion of driving under the influence of alcohol or a controlled substance. Only an officer of the law has the authority to arrest a motorist for such offense and only an officer of the law has the authority to conduct field testing to determine the level of impairment. A motorist is deemed to have given consent for chemical testing only if a police officer has reasonable grounds to believe that motorist was driving, operating, or in physical control of the movement of a motor vehicle. 75 Pa.C.S. § 1547. It is the statutory duty of the police officer to inform the licensee that his or her operating privileges will be suspended upon refusal to submit to chemical testing. 75 Pa.C.S. § 1547(b)(2). By virtue of the statutory language, that duty may not be delegated to anyone else under any circumstances. It follows then that only a police officer is charged with the duty of asking a licensee whether or not he or she will submit to chemical testing.
I believe that permitting the delegation of the duty of asking a licensee to submit to chemical testing to a person other than a police officer under any circumstances does not result in promoting the purpose of the statute, but results in an erosion of the rights of motorists who are at risk of losing their operating privileges.
I believe that the Supreme Court’s plurality decision Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), is most instructive and should be controlling in the disposition of the case sub judice. The Supreme Court stated in McFarren:
*333[I]t is clear from reading § 1547 of the Motor Vehicle Code that the purpose and remedial objective of § 1547 is to provide the police with evidence to prosecute an intoxicated driver, thereby keeping him off Commonwealth roadways.... Under the prior statute, the legislature empowered the police to administer only a blood or breath test. Now the legislature has expanded police authority not only by permitting a urine test, but also by providing the police with the authority to require additional testing....
Although it is clear that the legislature intended to extend police authority in testing for drunk drivers under § 1547(a), ... There can be no doubt that the obtaining of a blood, urine or breath sample is a search and seizure.... Under § 1547(a), the basis for the initial stop and search is the police officer’s reasonable belief that the person from whom the request for a chemical test is being made is driving a motor vehicle while under the influence of alcohol, and thus the search is either incident to a lawful arrest or necessitated by exigent circumstances.
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. ...”
I believe it is very clear to the interpretation that the purpose of Section 1547(a) being a search and seizure is much more restrictive than the majority allows. Strict cqmpliance must be followed. Only the police officer is the one empowered at all times for the provisions thereof by the Supreme Court language.
Accordingly, I would reverse.
McGINLEY and PELLEGRINI, JJ., join in this dissent.