Kelly v. Commonwealth

Dissenting Opinion by

President Judge Crumlish, Jr.:

I respectfully dissent.

The majority would hold that the warning given Kelly complies with the mandate of the Vehicle Code that “[i]t shall be the duty of the police officer to inform the person that the persons operating privilege will be suspended upon refusal to submit to chemical testing.” 75 Pa. C. S. §1547(b)(2).

*5In Peppelman v. Department of Transportation, Bureau of Traffic Safety, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979), we held that the warning or notice requirement is to be strictly construed.. Moreover, in Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 420 A.2d 13 (1980), we held that the standard for evaluating whether a warning is sufficient is whether there has been “a precisely enunciated warning that a drivers license will be revoked.” Id. at 26, 420 A.2d at 15 (1980).

Finally, in Commonwealth of Pa., Department of Transportation v. Landau, 91 Pa. Commonwealth Ct. 646, 498 A.2d 47 (1985), we held that the language “would be subject to suspension” within a warning clearly fell short of the Peppelman and Everhart standards.

The majority overlooks Peppelman and Everhart and would now overrule Landau because it believes that those prior decisions placed an unnecessary burden upon police officers to recite the statutory language. ■

I believe, however, that in enacting Section 1547(b)(2), the legislature intended that the warning be clear, concise, and definite that a motorists license “will be suspended.” Police officers, who have experience with drunken driving cases, bear a minimal burden to comply with this standard. However, the licensees interest in knowing the consequences of his refusal is great. Motorists, who depend on their drivers license, should know in unequivocal terms that in refusing a blood or breath test, their license will be suspended without fail.

I would reverse.