dissenting.
I dissent.
The Majority refuses to apply the rule of law of Commonwealth v. Scott, 546 Pa. 241, 684 A.2d 539 (1996) to the case sub judice. The Majority states that “the policy concerns and rationale underlying Scott would not be served” by extending the Scott decision to a case where the motorist “intentionally sabotages the [breathalyzer] test.” Id., at 449, 691 A.2d at *450454. In reaching this conclusion, the Majority permits the desire to punish what it perceives as a deceptive motorist to overshadow the purpose of the rule of law in Scott. Therefore, I am compelled to dissent.
In Scott, this court reviewed the confusion that was generated by the decision in Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989)1 and held that:
[ W]henever a motorist has been requested to submit to chemical sobriety testing, the motorist must be provided O’Connell warnings regardless of whether Miranda warnings have been given, and, regardless of whether the motorist exhibits confusion concerning his rights when asked to submit to chemical sobriety testing.
Scott, at 254, 684 A.2d at 545.
Thus, with the decision in Scott, this court hoped to eliminate the subjective problems of determining when a motorist is confused which had plagued law enforcement and the courts since the O’Connell warnings were mandated in informed consent cases. However, the Majority today chooses to ignore the objective clear standard established in Scott and reintroduce a subjective element to this area of law. Looking at the particular circumstances of this case, the Majority’s decision is unwarranted.
Appellee herein was arrested and charged with driving under the influence on June 14, 1991, by the Haverford Township Police. Upon his arrest, appellee was advised of his Miranda rights and transported to the Haverford Township police station. At the station, Officer Carroll requested appellee perform a breathalyzer test. Officer Carroll informed appellee that in accordance with the Implied Consent Law, if appellee refused to submit to the test, his operating privileges *451would be suspended for one year. The record shows that Officer Carroll failed to inform appellee that his Miranda rights were not applicable to the request to perform the breathalyzer test and that appellee assented to the test. However, on three separate test attempts, appellee failed to produce sufficient breath for analysis. Officer Carroll then provided appellee with an opportunity to take a blood test but appellee refused. Subsequently, Officer Carroll recorded the failed attempts as a refusal to submit to chemical testing. As a refusal was recorded, the Department of Transportation, Bureau of Driver’s Licensing (DOT) notified appellee that his operating privileges would be suspended. Appellee appealed from the notice of suspension to the Court of Common Pleas for a de novo hearing. At the hearing, the trial court made findings of fact and concluded that appellee was advised of his Miranda rights at the time of his arrest. (R.R. 52a).2 Additionally, the court found that appellee was advised that pursuant to the Implied Consent Law, a refusal to submit to chemical sobriety testing would result in the suspension of his operating privileges for one year. (R.R. 52a). Further, the court concluded that Appellee did, by purposely failing to supply sufficient breath samples, refuse to submit to chemical testing, (R.R. 53a) and that appellee’s testimony, regarding his confusion once he was given Miranda warnings and then asked to submit to the breathalyzer test, was credible. (R.R. 55a). Notwithstanding the fact that appellee testified that his refusal was an exercise of his “right to remain silent.” (R.R. 55a), the trial court found that appellee had failed to express to Officer Carroll his state of confusion regarding his Miranda rights. (R.R. 56a). The trial court then concluded that as appellee failed to reveal his confusion to the officer, or to explain that this confusion was the basis for his failing to perform the chemical test, the officer had no duty to provide appellee with O’Connell Warnings. (R.R. 56a). Accordingly, the trial court denied appellee’s appeal and reinstated the suspension of operating privileges.
*452On appeal, the Commonwealth Court reversed the decision of the trial court finding that the lower court had committed an error of law. The Commonwealth Court found that the duty to provide a motorist with O’Connell Warnings is not activated upon an overt display of confusion, but rather, is activated upon the request to submit to chemical sobriety testing following the explanation of Miranda rights.
In contrast to the Majority, I would affirm the decision of the learned Commonwealth Court as it is consistent with this court’s recent decision in Scott. In the case sub judice, appellee had been advised of his Miranda rights, was asked to submit to a breathalyzer, was not advised of his O’Connell warnings and had purposely failed to provide sufficient breath samples for testing as an exercise of his right to remain silent. Based upon the principles this court has developed from O’Connell through Scott, appellee’s refusal to submit to chemical sobriety testing was not a knowing and conscious decision as a matter of law.
The Majority creates an exception for the instant case based upon the fact that appellee originally agreed to take the breathalyzer and never expressed to the arresting officer his belief that in refusing to supply sufficient breath samples, he was exercising his right to remain silent. I cannot agree with the Majority that the circumstances of this case present a situation warranting an exception to the legal principles so recently established in Scott. The arresting officer had an affirmative duty to provide O’Connell warnings when he requested appellee submit to the breathalyzer test. The officer’s failure to provide O’Connell warnings cannot be overcome by the conduct of appellee in assenting to the test and then failing to provide sufficient breath samples. The Majority opinion argues that although the officer failed to provide Appellee with O’Connell warnings, appellee’s conduct in purposely attempting to skew the test results by failing to provide sufficient breath samples should be deemed a knowing and conscious refusal. The obvious absence of O’Connell warnings leads me to a contrary conclusion. Although it appears more likely than not that appellee was in fact attempting to “beat *453the machine,” without having first been warned of the consequences of his actions through the simple explanation of his O’Connell warnings, I cannot, given the circumstances of this case, conclude that appellee’s actions manifested a knowing and conscious refusal. The simple fact is that the arresting officer failed to provide O’Connell warnings as mandated by Scott. Without the required warnings, appellee’s subsequent conduct, whether intentional or inadvertant, is irrelevant as a matter of law.
Given the circumstances of this case, the position of the Majority undercuts the very purpose of the O’Connell warnings and the mandate set forth in our recent Scott decision. Accordingly, as I would affirm the decision of the Commonwealth Court. I respectfully dissent.
. In O’Connell, this court held that when a motorist is requested to submit to chemical testing under the provisions of the Pennsylvania Implied Consent Law, 75 Pa.C.S. § 1547, the law enforcement officer making the request has a duty to explain to the motorist that the rights guaranteed to the motorist, as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are inapplicable to a request for chemical testing under the Implied Consent Law. This holding has subsequently been referred to by the phase “O'Connell warnings.”
. The initials R.R. refer to the reproduced record containing the transcript from the hearing of February 7, 1994 before the trial court.