dissenting.
Respectfully, I must dissent. The majority agrees that Moss has met her burden of showing that she was unable to make a knowing and conscious refusal because she was incapacitated by the Demerol injection, but nonetheless concludes that she has failed to show that such incapacitation was involuntary. It is with this last conclusion that I must disagree.
As stated by the majority, we have held that voluntary intoxication is not a defense to a chemical test refusal. Monsay, Peck, Lello. It is also true that we have applied this rationale not only to consumption of alcohol, but also to medication. Lello. I believe, however, that the majority paints with an overly broad brush in seeking to apply those cases to the facts before us.
In cases of alcohol intoxication, if the consumption itself was voluntary, public policy mandates that the licensee be held accountable for his voluntary acts. Given the heightened public awareness surrounding the incapacitating effects of alcohol (and narcotics), it is not unreasonable to presume that a person who voluntarily ingests these substances should be deemed aware of the possible results. In these cases, only truly involuntary consumption, such as “spiking the punch” or “slipping a mickey” should be available as a defense.
The same is not true of drugs administered for medicinal purposes. A bewildering variety of both prescription and over-the-counter drugs are used daily in our society. Most of these are required by law to contain warnings of their possible effects. If a licensee ignores or fails to heed a warning to abstain from operating a motor vehicle while under the influence of the drug, I would agree that such a failure is sufficient to render the resulting intoxication voluntary, thereby barring its use as a defense. Such were the facts in Lello, where the licensee was taking a prescription that he knew to be a tranquilizer and voluntarily doubled the dosage. On these facts, we held that:
*343[T]he person who exceeds his recommended dosage is no different than the person who has ‘one drink too many’ and then is unable to make a knowing and conscious refusal. In both cases there exists a situation where ‘the prospective loss of mental and physical capacity was a foreseeable consequence when the driver undertook consumption____’
Lello, 132 Pa.Commonwealth Ct. at 14, 571 A.2d at 563 (emphasis added) (quoting Walthour v. Department of Transportation, 74 Pa.Commonwealth Ct. 53, 55, 458 A.2d 1066, 1067 (1983)).
In the present case, however, Moss testified that she had never before been administered an injection for her migraine headache.1 Moss further testified that following the shot, she was instructed to “go home and lay down,” but was given no other instructions.2 Although the trial judge made no express credibility finding, it is obvious that he found Moss’ testimony to be credible.
Thus, absent any warning, express or otherwise, I believe that Moss cannot be presumed to have known of the possible effects of Demerol. Although her ingestion of the drug may have been voluntary in the sense that she knew she was receiving medication, her lack of knowledge or warning as to the effects of the drug rendered her intoxication involuntary. Absent any warning, I cannot conclude that the prospective loss of mental and physical capacity was a foreseeable consequence. On these facts, the majority’s reasoning imposes on every member of the driving public the affirmative duty to know or to discover the possible incapacitating effects of every drug administered to her, despite the fact that the medical professional administering the drug did not see fit to warn his patient of those effects.
Because I believe that imposing such a burden goes beyond the duties contemplated by the implied consent law, I would affirm the trial court and sustain Moss’ appeal.
. Reproduced Record (R.) at 25a.
. R. at 26a.