concurring.
I concur only in the result reached by the majority. Accordingly, I write further to emphasize, and would correct, what I consider judicial excessiveness, if not judicial legislation.
I would overrule Smith v. Department of Transportation, Bureau of Driver Licensing, 655 A.2d 232 (Pa.Commonwealth Ct., 1995). The majority merely distinguishes the case sub judice with Smith.
To require any written consent by the licensee, with language of legal consequence, requires a different evaluation by the licensee than the oral permission to consent to the chemical testing.
The statutory language is clear and unambiguous.
Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests....
75 Pa.C.S. 1547(a).
I would hold that consent is statutorily implied. Refusal is the failure to comply with the request to test. To present any writing as a further requirement of the consent is contrary to the clear unambiguous “consent” in the statute. The request for the licensee to sign any writing exceeds the statutory presumption. It is a step unauthorized. Accordingly, the statutory presumption is then void. The court decisions that have held the same valid are excessive and in effect amount to judicial legislation.
*1106Similar and parallel to the situation herein is the Air Transportation Security Act of 1949,49 U.S.C. §§ 1356,1511 and the regulations promulgated thereto, 14 C.F.R. parts 108 and 121. See Commonwealth v. Vecchione, 327 Pa.Superior Ct. 548, 559-60, 476 A.2d 403, 410 (1984). The Air Transportation Security Act mandates that all passengers and carry-on articles be inspected prior to being allowed on board an aircraft. Id. When a passenger refuses his consent to inspection, the airlines must refuse passage to the passenger. Id. Thus, the regulatory scheme conditions the right to passage on an airplane upon “consent” of the passenger to the search of his person and the possessions to be carried aboard the plane. Id.
For the foregoing reasons and while in concurring in the result, I would overrule Smith and any ease that would require any writing whatsoever which would be exceeding the already established presumption of consent given by statute.
McGINLEY, J., joins in this concurring opinion.