COM., DEPT. OF TRANSP. v. Fiester

I respectfully dissent. With the addition of the per se confusion rule to the amorphous concept of “knowing and *351conscious refusals,” I believe the majority is attempting to create legislation by judicial fiat which is contrary to the clear language and intent of 75 Pa.C.S. § 1547 and contrary to the supreme court’s decisions in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989) and Commonwealth v. McFadden, 522 Pa. 100, 559 A.2d 924 (1989).

Critical to our inquiry regarding the duties of Commonwealth agents to licensed motor-vehicle operators…