concurring.
I concur in the result only. I write separately to emphasize what I believe is the majority’s misinterpretation of the Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989) decision.
The majority interprets O’Connell as holding that, when a licensee receives simultaneous recitations of Miranda rights and the implied consent warnings followed by a request to take a breathalyzer test, the licensee is per se confused and therefore, a third warning that Miranda rights do not apply to the breathalyzer test must be given.
The majority omits a critical step in the O’Connell process. The supreme court held as follows:
Accordingly, where an arrestee requests to speak to or call an attorney, or anyone else, when requested to take a breathalyzer test, we insist that in addition to telling the arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test.
Id., 521 Pa. at 253, 555 A.2d at 878 (emphasis added).
The language is clear. The licensee must demonstrate his confusion as to the applicability of the Miranda right to counsel by requesting to speak to an attorney before the O’Connell warning is necessary. The purpose of the O’Connell decision is to eliminate a licensee’s confusion as to his right to an attorney when asked to take a breathalyzer or blood alcohol test. Without any manifestation of such confusion, which must be evidenced by his request to talk to a lawyer, the 0 ’Connell warning is unnecessary and potentially confusing in itself. See Department of Transportation, Bureau of Driver Licensing v. Fiester, 136 Pa.Commonwealth Ct. 342, 583 A.2d 31 (1990, Palladino, J., dissenting ).
*338Furthermore, I disagree with the majority’s attempt on page 31 to categorize potential causes of licensee confusion. First, the majority suggests that the giving of implied consent warnings and Miranda rights in close proximity time-wise triggers O’Connell warnings on a per se confusion thesis. It is my position that unless a licensee asks to speak to a lawyer after receiving both warnings, thus exhibiting confusion as to his right to speak to counsel, no further obligation of explanation by the police exists.
The majority next concludes that 0 ’Connell warnings are required even though the police have not given Miranda warnings, merely because the licensee may have been “Mirandized” by television. It is inappropriate for any court to engage in speculation based on hypotheticals. There is no claimed television impact before this court.
Finally, it must again be noted that to suggest yet another area upon which a licensee can rely when seeking to excuse a refusal to take a breath or blood test based upon “other overt manifestation not yet encountered” goes far beyond the holding in O’Connell and McFadden.
The majority, by postulating categories, eliminates a clear condition to the need for O’Connell warnings. O’Connell requires that a warning be given that Miranda rights do not apply to the breathalyzer test only if or when Miranda rights have been read to the licensee. The supreme court stated at the outset of the O’Connell opinion:
We granted Appellant’s petition for allowance of appeal to ... give guidance in the troublesome situation presented in cases such as this one, where a person is arrested for a crime, read Miranda rights, and is then told to submit to a breathalyzer test, but is not told that his right to see an attorney does not extend to taking this test.
O’Connell, 521 Pa. at 251, 555 A.2d at 875 (emphasis added).
Further, as the majority correctly notes on page 28, the Supreme Court in O’Connell stated as follows:
*339Since the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify the extent to the right to counsel____
Unless the police recite the Miranda rights, there is no police conduct to create confusion and therefore, no O’Connell warnings are required.
SMITH and BYER, JJ., join in this opinion.