Dissenting Opinion by
Spaeth, J.:Appellant was tried by a judge sitting without a jury on November 29, 1973, and was found guilty of operating a motor vehicle while under the influence of intoxicating liquor.1 The only issue raised on this appeal is whether the results of a breathalyzer test were properly admitted into evidence.
On November 23, 1972, at about 5:00 p.m., a War-minster Township police officer was dispatched by police radio to the scene of a three car accident. When he arrived he asked the persons standing around the cars whether anyone was injured. Several bystanders responded in the negative. He then asked who had been driving the Chevrolet, and appellant identified himself as the driver of that car. Appellant did not seem injured to the police officer, but the officer noted that he appeared “wobbly,” his speech was slow, and his breath smelled of alcohol. From these observations the officer concluded that appellant was under the influence of alcohol in violation of The Vehicle Code, supra. The officer then arrested appellant, placed him in the back of the patrol car, gave him the warnings required by Miranda v. Arizona, 348 U.S. 436 (1966), and asked him whether he would consent to a breathalyzer test. Appellant said he would take the test. After the officer had completed his accident report, he took appellant to the State Police Barracks. *304There appellant was again given the Miranda warnings, and once again he agreed to take the breathalyzer test. The test was then administered, approximately forty-five minutes after the officer’s first contact with appellant. The results indicated that the amount of alcohol by weight in appellant’s blood was .19.2 Appellant filed a motion to suppress these results, but after a hearing the motion was denied.
Schmerber v. California, 384 U.S. 757 (1966), and Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970), make it clear that the administration of a blood test constitutes a search and seizure within the meaning of the Fourth Amendment. Likewise, the administration of a breathalyzer test must be considered a search and seizure. Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 377 n. 4, 324 A.2d 452, 460 n. 4 (1974). Thus, before the results of a breathalyzer test may be admitted into evidence the requirements of the Fourth Amendment must be satisfied. “As a general rule the Fourth Amendment requires as a prerequisite to [a search and seizure] the issuance of a search warrant by a magistrate who has made an independent judgment as to probable cause.” Commonwealth v. Maione, 227 Pa. Superior Ct. 239, 243, 324 A.2d 556, 558 (1974). When, as here, there is no search warrant, the warrant requirement may be dispensed with if the search was conducted incident to a lawful arrest, pursuant to valid consent, or in circumstances falling within one of the recognized exceptions to the warrant requirement. Commonwealth v. Quarles, supra at 377, 324 A.2d at 460; United States v. Mapp, 476 F.2d 67, 76 (2d Cir. 1973).
*305The Commonwealth concedes that in the present case the admission of the test results cannot be justified as a search incident to a lawful arrest. In Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 52-53, 297 A.2d 142, 143 (1972), this court said that “[a] police officer may only make a warrantless arrest for a misdemeanor 'where he has probable cause to believe that a misdemeanor is being committed in his presence.’ ” Here, since appellant committed no offense in the officer’s presence, his arrest was unlawful. The results of the breathalyzer test therefore could not be admitted as incident to a lawful arrest. Commonwealth v. Kirkutis, 234 Pa. Superior Ct. 18, 334 A.2d 682 (1975); Commonwealth v. Jacoby, 226 Pa. Superior Ct. 19, 311 A.2d 666 (1973); Commonwealth v. Brown, 225 Pa. Superior Ct. 289, 302 A.2d 475 (1973); Commonwealth v. Reeves, supra. The Commonwealth argues, however, that the test results were properly admitted because appellant consented to the test. Appellant, in contradiction, argues that this case is controlled by the decision in Commonwealth v. Quarles, supra, and that that decision requires suppression of the test results.
In Commonwealth v. Quarles, supra, the issue was whether the results of a breathalyzer test could be admitted into evidence as a search and seizure pursuant to defendant’s implied consent under the provision of the “implied consent law,” that “[a]ny person who operates a motor vehicle. .. shall be deemed to have given his consent to a chemical test of his breath....” The Vehicle Code, supra at §624.1 (a), 75 P.S. §624.1 (a). There a policeman was dispatched to the scene of an automobile accident. When the officer arrived, the defendant identified himself as one of the drivers. After observing the defendant, the officer arrested him for drunken driving, read him his Miranda warnings, and, after the defendant agreed to submit to a breathalyzer test, took him to the police barracks where the test was administered. The hearing court granted the defendant’s motion to suppress *306the test results, and this court affirmed.3 In construing the implied consent statute, we held that the results of a blood or breathalyzer test are admissible if administered without transporting the person and if the requesting officer has reasonable grounds to believe that the person had been driving while intoxicated. When, however, the person is transported to the place where the test is to be conducted, a lawful arrest is necessary before the results will be allowed into evidence. In Quarles, the defendant had been illegally arrested and transported twenty-two miles to the police barracks for the breath test. As a result, the test results were suppressed. Here, as was true of the defendant in Quarles, appellant was illegally arrested and transported to the police barracks. Appellant is therefore correct insofar as he says that Quarles prevents his test results from being admitted into evidence on the basis of implied consent. The Commonwealth, however, is arguing more than implied consent; it contends that appellant actually consented to the seizure and the test.
Quarles did not directly concern an issue of actual consent.4 Nevertheless, it was noted in the opinion that-"[i]t is possible that a driver may actually consent to a seizure of his person and the administration of a test of his breath or blood. Actual consent may then provide a constitutional basis for the seizure and test. Such consent [though] must appear ... to have been voluntary. . . . Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).” Id. at 377-378, 324 A.2d at 460. Thus if appellant did *307actually consent to the seizure and test, the test results would be admissible. The question whether consent to a search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, supra; People v. Michael, 45 Cal. 2d 751, 753, 290 P.2d 852, 854 (1955). When the prosecution seeks to rely upon consent, it has the burden of proving that the consent was in fact freely given, Bumper v. North Carolina, 391 U.S. 543, 548-549; Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), and the proof must be by clear and positive testimony, Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951).
In the present case, the Commonwealth established that appellant orally consented to the breathalyzer test on two distinct occasions, and that he did so after being given the Miranda warnings. Counterbalancing these facts, however, is the fact that appellant had been unlawfully arrested. The issue, therefore, is whether appellant’s illegal arrest presented sufficient coercion to vitiate his consent. This court recently dealt with this issue in Commonwealth v. Modich, 233 Pa. Superior Ct. 92, 334 A.2d 717 (1975). There the defendant was involved in an automobile accident. Two police officers arrived after the accident and illegally arrested the defendant for driving while intoxicated and gave him his Miranda warnings. The officers then took the defendant to the police station, where he was again advised of his rights. The defendant was unwilling to take a chemical breath test without talking to his attorney. His attorney explained to him over the telephone that if he refused to take a breath test, his license would be suspended. The defendant took the test. On appeal this court held that the defendant’s consent was not voluntary and granted him a new trial.5 We reasoned as follows. Evidence *308obtained as the result of an illegal arrest must be suppressed as the fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471 (1963), unless the evidence to be introduced has been obtained “ ‘by means sufficiently distinguishable to be purged of the primary taint’ rather than ‘by exploitation of that illegality.’ Betrand Appeal, 451 Pa. 381, 389, 303 A.2d 486, 490 (1973) citing Wong Sun, supra, at 488.” Commonwealth v. Modich, supra at 97, 334 A.2d at 719. The Commonwealth Court, in construing Section 624.1 of The Vehicle Code, supra6 held that a person arrested for drunken driving may have his license suspended if he refuses to submit to a chemical breath test, no matter how unlawful the arrest. Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). Therefore, when the defendant was asked to take the breathalyzer test, he was faced with the dilemma of submitting to. the test or losing his license. This dilemma was the product of his unlawful arrest. We concluded that the defendant “should not be forced to make such a choice solely because of an unlawful arrest. . . . [The defendant’s] ‘free’ choice, on a closer examination, turn [ed] out to be Hobson’s choice, and the inadmissible fruit of the illegal arrest.” [Footnote omitted]
*309Commonwealth v. Modich, supra at 97-98, 334 A.2d at 719-720.
In the present case, as in Modich, appellant’s illegal arrest forced him to choose between submitting to the breathalyzer test or having his license suspended.7 Thus under Modich appellant’s decision to consent to the breathalyzer test cannot be considered free and voluntary, and it was constitutional error to admit the results into evidence.
The judgment of sentence should be reversed and a new trial granted.
Hoffman and Cercone, JJ., join in this opinion.
. The Vehicle Code, Act of April 29, 1959, P.L. 58, §1037, 75 P.S. §1037.
. According to subsection (c) (3) of the implied consent law, The Vehicle Code, supra at §624.1, added Act of July 28, 1961, P.L. 918, §1, as amended Act of July 31, 1968, P.L. 758, No. 237, §1, Act of December 22, 1969, P.L. 392, §1, 75 P.S. §624.1 (c) (3), where a breath test yields results of .10 or higher “it shall be presumed that the defendant was under the influence of intoxicating liquor.”
. Watkins, Hoffman, and CeRCOne, JJ., concurred in the result; WRIGHT, P.J., and Spaulding, J., did not participate in the decision.
. “There is no argument in the present case that appellant actually consented to being seized and having his breath tested. Instead, the Commonwealth argues that appellant, like every other driver licensed by the Commonwealth, impliedly consented.” Commonwealth v. Quarles, supra at 378, 324 A.2d at 460.
. Price and Van der Voort, JJ., dissented.
. This Section reads in pertinent part:
“(a) .... If any person is placed under arrest and charged with the operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor vehicle or tractor with or without a hearing. Any person whose license or permit to operate a motor vehicle or tractor is suspended under the provisions of this act shall have the same right of appeal as provided for in cases of suspension for other reasons.
(h) The refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining innocence or guilt.”
. Although appellant was not told by his lawyer that if he refused to submit to the test his license could be revoked, as the defendant in Modich was, it “has been said that ‘all persons are presumed to know the law and are therefore presumed to be so informed as to [their] rights. They should acquaint themselves, at least with those laws most likely to affect their usual activities’.” Commonwealth v. Rutan, 229 Pa. Superior Ct. 400, 402, 323 A.2d 730, 731 (1974), quoting People v. Kovacik, 205 Misc. 275, 292, 128 N.Y.S. 2d 492, 509 (1954). In Rutan, at pp. 402-403, n. 2, we took judicial notice of the fact that the rule on license revocation is summarized at page 61 of the Pennsylvania Manual for Drivers, July 73 ed., No. 95 0350-7200-0959, issued by the Secretary of Transportation, as follows:
“Implied Consent Law for operating under the influence of alcohol: Any person who operates a motor vehicle or tractor in this Commonwealth shall be deemed to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood. Your refusal to submit to said test will cause your operating privileges to be suspended for six months to a year.”
Thus, for the purposes of this case, since the Commonwealth-presented no evidence to the contrary, it must be presumed that appellant, like the defendant in Modich, knew his license could be suspended if he refused to take the breathalyzer test.