dissenting.
I respectfully dissent. I dissent specifically on the conclusion reached in part III, that the officer has the sole and “unfettered discretion” to choose the type of chemical test to be given to a licensee.
The “Implied Consent Law” (75 Pa.C.S. § 1547(a) and (b)), quoted in full in footnote 1 of the majority opinion, is the sole authority for suspension of driving privileges of a licensee arrested for operating a motor vehicle under the influence of alcohol or controlled substance, who refuses to take a chemical test. This law confers no such unfettered discretion, either directly or by implication.
The mandatory penalty imposed by this Law, by definition, rests on the doctrine of “Implied Consent.” It provides that the operator of a motor vehicle is “deemed to have given consent to one or more chemical tests of breath, blood or urine....” The three available tests are listed in the disjunctive, not the conjunctive. Clearly, the legislature did not say “consent to all possible tests.” It could easily have said so if that is what it intended. Because it failed to do so, I conclude that it meant exactly what it said: “consent to one or more chemical tests....” It is clear to me that the legislature chose this specific language because it was conscious of its obligation to enact legislation which will most likely pass the test of constitutionality. “Reasonableness” is one of the requirements to pass such a test. Obviously, the legislature saw the possibility that there may be circumstances, such as medical, physiological or psychological conditions, or religious convictions, which would make it impossible for a licensee to give consent to one particular test while being perfectly willing to consent to other tests. Under such conditions, the legislature must have considered that it would be unreasonable for the police officer to insist on one particular test and, hence, it used the disjunctive phrase of “one or more tests.”
But, aside from the logic of the above, the question remains: What is the law, as interpreted by our courts? I am fully aware of the series of decisions by our Court which have said, mostly by way of dicta, that the police officer has sole and “unfettered discretion” to choose the type of chemical test to be given to a licensee. Of all the decisions on the subject that I have been able to find, the following five cases are not exactly on this issue, and the full discretion given to the police officer in each of them is dictum and, therefore, not precedential: Sladic v. Department of Transportation, Bureau of Driver Licensing, 164 Pa.Commonwealth Ct. 619, 643 A.2d 1155 (1994); Kostyk v. Department of Transportation, 131 Pa.Commonwealth Ct. 455, 570 A.2d 644 (1990); Pearson v. Commonwealth, 122 Pa.Commonwealth Ct. 91, 551 A.2d 394 (1988); Department of Transportation, Bureau of Driver Licensing v. Curran, 107 Pa.Commonwealth Ct. 1, 526 A.2d 1265 (1987); Magill v. Commonwealth, 104 Pa.Commonwealth Ct. 517, 522 A.2d 172 (1987).
In cases where the factual situation is closer to the instant case, such as: Borger v. Department of Transportation, 110 Pa.Commonwealth Ct. 512, 532 A.2d 892 (1987), Smith v. Department of Transportation, 97 Pa.Commonwealth Ct. 74, 508 A.2d 1269 (1986), rev’d, 517 Pa. 327, 536 A.2d 797 (1988); McFarren v. Department of Transportation, 96 Pa.Commonwealth Ct. 262, 507 A.2d 879 (1986), rev’d, 514 Pa. 411, 525 A.2d 1185 (1987); and all the cases cited in the majority opinion, are generally based on each other’s authority. The earliest case on which many of these cases rest is Department of Transportation, Bureau of Traffic Safety v. Bartle, 93 Pa.Commonwealth Ct. 132, 500 A.2d 525 (1985), which makes this broad statement of “unfettered discretion by the police officer,” based on absolutely nothing. Not a single authority is cited in Bartle.
On the other hand, the gist of the logic of this dissent is fully supported by the decision of the Pennsylvania Supreme Court. In Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), our Supreme Court overruled the order of our Court and sustained the Appellant’s statutory appeal. Incidentally, Smith, which is cited by several of the above-cited cases, is *52based primarily on Bartle, and secondarily upon McFarren before it was reversed.
Our Supreme Court, painstakingly examines and analyzes the language of the “Implied Consent Law” (75 Pa.C.S. § 1547(a) and (b)). On the specific issue of the policeman’s authority, the Supreme Court states that the key clause, “shall be deemed to have given consent to one or more chemical tests of breath, blood or urine,” id. at 414, 525 A.2d at 1186 (emphasis in original), is “clearly susceptible to more than one interpretation.” Id. at 415, 525 A.2d at 1187. Therefore, the Court goes on, “faced with statutory interpretation the court must ascertain and effectuate the intention of the legislature.” Id. After a detailed search to determine that legislative intention, the Supreme Court, after stating that it is clear that the legislature is making a concerted effort to keep drunk drivers off our highways and examining the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution, concludes that to interpret Section 1547(a) as the police and the Department of Transportation did, would mean that “the legislature would be delegating unbridled power to the police, resulting in a violation of Art. 1, § 8 of the Constitution of this Commonwealth. For this reason, neither the Appellee’s interpretation nor its actions can be accepted.” Id. at 417, 525 A.2d at 1188.
No matter how tough the legislature wanted to be with drunk drivers, it “did not intend either an unreasonable result or a constitutional violation. 1 Pa.C.S. § 1922.” Id. “[T]he police officer must offer sufficient evidence to establish the ‘reasonableness’ of such a request.” Id. at 418, 525 A.2d at 1188. (Emphasis in original.) The Supreme Court concluded by holding that the reason given to request for a second test “can never be deemed reasonable and is thus violative of Art. 1, § 8 of our Constitution,” id., and reversed the Commonwealth Court and sustained Appellant’s statutory appeal.
Based on the lack of authority supporting the line of cases in our Court for the proposition that the police officer has the sole and unfettered discretion to choose the type of chemical test to be given to a licensee, and, more importantly, the Pennsylvania Supreme Court decision holding the opposite, I am compelled to respectfully dissent.