dissenting.
Respectfully, I dissent.
While I cannot fault the majority’s logic that conferring with counsel cures a police officer’s failure to give the warning mandated by Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), the simple fact is that our Supreme Court has held to the contrary.
In Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992), the Supreme Court, in actuality adopted without reference the per se confusion rule this Court had already established in Department of Transportation, Bureau of Driver Licensing v. Fiester, 136 Pa.Cmwlth.Ct. 342, 583 A.2d 31 (1990), petition for allowance of appeal denied, 528 Pa. 632, 598 A.2d 285 (1991), when it held:
[W]hen Miranda warnings are followed by a police request for chemical testing, the police have an affirmative duty to not only inform the arrestee that refusal to submit to chemical testing will result in suspension of his driving privilegés, but also that the arrestee does not have a right to speak with an attorney or anyone else in connection with his decision as to whether he will submit to chemical testing.
608 A.2d at 1046. I can find no limiting language in that quotation. Danforth also made clear that where Miranda warnings are given, there is no additional requirement that the licensee actually exhibit confusion over the applicability of his Miranda rights to his decision whether to submit to chemical testing in order to assert a successful defense that he could not render a knowing and conscious refusal to submit to such testing. Accordingly, since Danforth establishes that confusion is not a prerequisite to a successful defense in situations where the Miranda warning precedes the request for chemical testing, the fact that a licensee may have conferred with counsel on whether to submit to testing is legally irrelevant, as is any advice counsel may have rendered him. In short, there is absolutely nothing in Danforth which indicates that the per se confusion rule is subject to exception when the licensee does, in fact, confer with counsel. And, *507while I would certainly concede that such an exception is sensible, it is not for this Court to create exceptions to rulings of our Supreme Court.