HomeMy WebLinkAbout00-03192
BRIDGET LEANN IDDINGS,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING,
Appellee
.
.
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
~
.
.
NO. JfJ1rV - -3 (tiel
:
.
.
.
.
.
.
Appeal of Operators License
Suspension - Chemical Test
Refusal
.
.
AND NOW this
ORDER OF COURT
Q. b day of
,VV\.tU1
2000, upon
consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION,
it is hereby ordered that a hearing shall be held regarding this
matter at on the
a 'jt#t day of
a.m. /prlIl. in Courtroom No.
2000 at q 15
~
of the Cumberland County
Courthouse, Carlisle, pennsylvania.
A supersedeas is granted pursuant to Vehicle Code Section
1550(b)(1) until such time that this honorable court resolves this
appeal.
BY - COUR1(
('
/
[lop]; 0) iI1 .
~-.5-0(j
1i~
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Third Floor,
Riverfront Office Center, Harrisburg, PA 17104
-Matthew J. Eshelman, Esq., 2108 Market st., Camp Hill, Pa 17011
"
~
j.
-~
,- ."" "' ~ ~ '~ .
"1/'
. " . - , '~
. . FILED-OFFICE
Of. 1 Hi: PPOTf.JONOTARY
00 JUN -5 PM I: 09
CUM8EFiLANO COUNTY
PENNSYLVANIA
,'-'""'1H'!i!Ro:ll!'P.-'I!IlI!l'iI~~'-!lfl!J"""" _ IlI!!llf ilii"'""",. "., 'W. ,~,,,",,,,,,,,,,~t,,,"HTiJ'1" "f-,;""<-"-"';;.;;;R1~,,~ffi. q~. ,,:'lIl""'~_-,_----L. ,', _
__~___"' ""'!'''~''"''' -- ,-- '''-,'=' ,,'-'m,"'!!:!I~ "~."".."'_ _' ,ll I _"""'.~ "3'~' ",",'P><_~ .
BRIDGET LEANN IDDINGS, :
Appellant .
.
.
.
.
.
.
.
v. :
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, .
.
BUREAU OF DRIVER LICENSING, .
.
Appellee .
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. i7'0. 319.J- ewu -r~
Appeal of Operators License
Suspension - Chemical Test
Refusal
APPEAL OF LICENSE SUSPENSION
AND NOW comes the Appellant, Bridget LeAnn Iddings, by and
through his attorney, Matthew J. Eshelman, Esquire, and
respectfully avers the following:
1. Appellant resides at 37 Country View Estates, Newville,
Cumberland County, Pennsylvania 17241.
2. The Appellant received a notice dated April 27, 2000 that, as
a result of her alleged violation of Pennsylvania Vehicle
Code Section 1547, Chemical Test Refusal, her driving privilege
was being suspended for a period of one year, effective suspension
date June 1, 2000, at 12:01 a.m. A true and correct copy of the
Notice is attached as Exhibit "A".
3. The Appellant submits that the police officer lacked' a
reasonable basis to request Appellant to submit to a chemical
test.
4. The Appellant submits that she did not intelligently and
voluntarily refuse to submit to a chemical test.
,~
5. The Appellant submits her actions did not constitute a
refusal.
WHEREFORE, your Appellant respectfully requests your
Honorable Court to schedule an evidentiary hearing on the matter.
Date' o/~ )w
Matthew J.
Law Office
2108 Marke
Camp Hill,
1D# 72655
shelman, Esqu're
of Patrick F. Lauer, Jr.
Street, Aztec Building
Pennsylvania 17011-4706
Tel. (717) 763-1800
"~Kil,',i"
BRIDGET LEANN IDDINGS,
Appellant
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND CO~TY, PENNSYLVANIA
.
.
:
.
.
: NO.
v.
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
.
.
.
.
ATTORNEY VERIFICATION
I, Matthew J. Eshelman, Esquire, undersigned counsel for
Appellant, Bridget LeAnn Iddings, hereby verifies and states that:
1. I am the attorney for Appellant, Bridget LeAnn Iddings;
2. I am authorized to make this verification on my client's
behalf;
3. The facts set forth in the foregoing Appeal are known to me
and not necessarily to my client;
4 . The facts set forth in the foregoing Appeal are true and
correct to the best of my knowledge, information and belief;
and
5. I am aware that false statements herein are made subject to
the penalties of 18 Pa. C.S. 4904, relating to unsworn
falsification to authorities.
~~J
Date: uV
Matthew J. hel , Esquire
Law Off 'ces f Patrick F. Lauer, Jr.
2108 Market treet, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 72655 Tel. (717) 763-1800
.,
l,jU~:>i
BRIDGET LEANN IDDINGS,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
v.
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon opposing counsel by depositing a copy of the
same in the United States Mail, Camp Hill, Pennsylvania, through
first class mail, certified, return receipt requested, postage
paid and addressed as follows:
Pennsylvania Department
Office of Chief Counsel
Third Floor, Riverfront
Harrisburg, PA 17104
of Transportation
Office Center
Dat., 1z~
"J!'
elman, Esquire
f Patrick F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID* 72655 Tel. (717) 763-1800
~./
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
APRIL 27, 2000
,I;
BRIDGET LEANN IDDINGS
37 COUNTRY VIEW ESTS
NEWVILLE PA
17241
001116112334421 001
04/20/2000
24998406
09/14/1979
Dear Motorist:
As a result of your violation of Section 1547 of the
Vehicle Code, CHEMICAL TEST REFUSAL on 04/08/2000, your
driving privilege is being SUSPENDED for a period of 1
YEAR(S).
In order to comply with this sanction you are required to
return any curren,tdriver's license, learner's perm'it and/or
temPorary driver's license (camera card) in your possession
no later than the effective date listed. If yOU cannot
comply with the requirements .tated ~bove, you are required
to submit a DL16LC Form or a sworn affidavit stating that
yOU are aware of the sanction against your driving
privilege. Failure to comply with this notice shall result
in this Bureau referring .this matter to the PennsYlvania
State Police for prosecution under SECTION 1571(a)(4) of the
Vehicle Code.
Although the law mandates that your driving privilege is
under suspension even if YOU do not surrender your license,
Cl'edit will not begin until all current driver's license
product(s), the DL16LC Form, or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR
ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT
RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT
IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD
SERVING THIS SANCTION.
The effective date of suspension is 06/01/2000, 12:01 a.m~'
********************************************************************
I WARNING: If y,ou' ar,e convicted for driving while your license is I
Isus'pended, the penalties will be: not less than '90 days imprison-I
Iment and ~ 1,000 fine and an additional 1 year suspension. I
********************************************************************
,"....;,J._" , "~.
~
~"
iIii.,
001116112334421
Please see the enclosed application for restoration fee
information.
APPEAL
You have the right to appeal this action to the Court o,f
Common Pleas (Civil Division) within 30 days of the mail
date of this letter, APRIL 27, 2000. I~ YOu ~ile an appeal
in the County Court, the Court will give you a time-stamped
certi~ied COpy o~ the appeal. Send this time-stamped
certified copy of the appeal by certified mail to:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104-2516
Sincerely,
~~,W%
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7:00
IN STATE
OUT-OF-STATE
TDD IN STATE
TDD OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
d
. .
,-,-l I _. '_.';
,
JUL 24 20~
BRIDGET LEANN IDDINGS,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2000-3192
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRiVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this a ~ day of
.~
, 2000, the
Department having requested that the above-mentioned matter be continued because Officer
Jeffrey D. Kurtz, who is the arresting officer and a necessary witness in this matter, is unavailable
to testify on July 27,2000, and without objection of the continuance by the petitioner, the appeal
~5U
filed in the above referenced matter is CONTINUED and RESCHEDULED for the
day of, ~ ' 2000, at /30 p.m., in Courtroom Number 2 in the Cumberland
County Courthouse, Carlisle, P A
DISTRIBUTION:
George Kabusk, Esquire, Riverfront Office Center, 1101 South Front Street, Harrisburg, P A
17104-2516
Matthew J. Eshelman, Esquire, 2108 Market Street, Camp Hill, P A 17011
~
~O
~~ "f~
BY THE COURT
J.
..-~~" l~~l._i
.
...'
,
.-
BRIDGET LEANN IDDINGS,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2000-3192
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRiVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
MOTION FOR CONTINUANCE
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully
represents as follows:
1. The Department mailed to Bridget Leann Iddings, O.L.N. 24998406, a notice dated
April 27, 2000, informing her that as a result of her violation of Section 1547 of the Vehicle
Code, relating to Chemical Test Refusal, on April 8, 2000, her driving privilege was being
suspended for a period of one year.
2. Bridget L. Iddings filed an appeal of the above-mentioned suspension in the Court of
Common Pleas of Cumberland County.
3. A hearing in the matter is scheduled for July 27,2000, at 9:45 p.m. in, Courtroom No.
2, Cumberland County Courthouse, Carlisle, P A.
4. The refusal was reported to the Department of Transportation by Patrolman Jeffrey D.
Kurtz of the Carlisle Police Department. See exhibit number 1.
,
k""1
---
-
'lIli.llii
,
..
.
5. Officer Kurtz was the arresting officer in the incident and is a witness for the
Department of Transportation in this matter.
6. The undersigned was informed that Officer Kurtz will be unavailable to testify on July
27,2000, because he is scheduled for training on July 27,2000.
7. The undersigned counsel respectfully requests a continuance and that the case be
scheduled at a later date.
8. The motorist's operating privilege has been restored pending appeal pursuant to
Section 1550 of the Vehicle Code.
9. The undersigned counsel contacted the office of Matthew J. Eshelman, Esquire,
attorney for the petitioner, and was inform by his office that he has no objection to the granting of
a continuance in this matter.
WHEREFORE, the Department respectfully requests that its Motion For Continuance be
granted and that the aforesaid hearing be continued.
Respectfully submitted,
~ rtd.~C
George . Kabusk, squire
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: July 21,2000
,
....U:I. 1. 1.
61.1.2 33,421
.
, ,
Ot.-26 (7-G41
4n
~
CHEMICAL TESTING WARNINGS AND REPORT OF
REFUSI>.L ,0 SUBM" ,0 CHEMICAL ,ESTING AS
AUTHORI2;ED BY r:I~otil'l~ti OF THE VEHICLE CODE
......E
.....T
])~I[){"'E.I
ADORESS
CITY
SEX DATE OF BIRTH
MONTH OAY YEAR
r C)'l /51' /7'J'.
STATE ZIP CODE
Ml~
LEJ+AJ...,
lAST
IbG')l N G S,
])7
,/#p./ /~~
~i</(//~
.4 /7/'f'/
SOCIAL SECURITY NUMBER
STATE
2 ~.f' ~
SECTION 1547 - CHEMICAl- TESTING WARNINGS .
1. f'(Qase be advised that you are now under Brrest for driving under the inflUlilnC8 or alcohol or a c:ontrollad substance pursuant to $aGUon 3731 of
tho Vehicle Coda. .
2. I am requesting that you submit to a chamical test 01 g~e.A,'t (breath, blood or urine. Officar chooses the chemical test.)
3. It is my duty, as a police officer. to inlonn you that if you rofuso to submit to tho chemical test your opemting privilege will bG suspendod for a
period of one year.
.... a) ThG constitutional rights you havo as a criminal defendant. commonly known as the Miranda Rights, ioc:luding the right to speak with a lawyer and
11M right to ntmain silent., apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied
Consant Law. which b a civil. not a criminal proeaeding.
b) You have no right to speak to a lawyer. or anyone else. bcatore taking the chemical test requestad by tho police offiesr nor do you have. right to
remain.silent when askod by the police officer to submit to the d1emieal test.. Unless you agree to submit to the test requested by the po1ica offacer
your conduct will be deemed to be re'usaI and ygur opGrating privilogo will be susp.gnded foe ona year.
e::) Your rulusat to submit to ehemk:st tasting under the ImpUed Consent 1.aw may be introduced into Qvid8~ea in a cQmmal prosecution for driving
while undar the inflU90CQ of alcoh~ or a controUed $Ubstanca,
I eef1ify that . haVG read the above warning to the 0
nity to submit to chemical tasting.
Signature of OUicer:
I have been advised of the above.
Signature 0' Motod
Mo'lOnst refused to sign, alter being a
Signature 01 01
AFAOAVIT
1. The above motorist was placed under arrest for driving undee the influence of alcohol or a controlled substance in violation of Section 3731 of the
Vehicle Code. and lhera were reasonable grounds to believe that the above motorist had been driving, operating or in actual physical control of
the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both.
~~ or
That the above named motorist was involved in an accident "in which the operator or passenger of any vehicle involved or a pedestrian required
treatment at a medical fac:Jhy or was killad
2. 'The above motorist was requesled to submit 10 chemical tesling as authorized by SQction 1547 of the Vebide Coda.
3. 1be above motorist was informed by a police offICer of tho d1emical test warnings cootained in paragraph 3 and 4 above.
.... Tbca above named motorist refused to submit to chemical testing.
OFFICER NOTE: The refusal to sJgn this form is not a refusal to submit to the chemical tesL You must sliU givo the motorist an opportu~
nilV' to tako tho chemical test after reviewing this form. If tho individu.d was operaUng _ com ercial motor veh -Ie having any
alcohol or & controlled substance in their system, you must also complete the rcVers~ id r ~nu.
/ <L).t--<-
SU8SCR8EDANOSWORN OUicorSignature: ,,..>>
TO ME: YEAR Co
OkidL
(T)'P4JotPlinQ
Forward to:
Department of Transportation
Bureau of Driver licensing
P.O. Box 60037
Harrisburg, PA 17106~0037
Tii;S FORM MAY BE DUPLlCATEO
Badge Number. S Jurisdiction: aL/'{'~ J!iAeOt.15/
Phon.: { 7/,1; ..?f'j-..JZ ..rz.
Mailing Address (?,A!/J 0/ ,0U."b ~P'ffa/6v;r--
~:;~ ~70;;
Note: Any pertinent facts not covered by tho affidavit should be submitted on a
separate sheet and altached hereto. That sheet should inClude the names of
additional wilnesses necessary to prove the elements to which you have attested.
ADDITIONAL SUPPUES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS.5l1A
2:: I'M- ( f$.rr q:t- '/
~ .~'"~".
~~
~_.
'"
.,.b'ldf,-"
.
..
, ,
BRIDGET LEANN IDDINGS,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2000-3192
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
VERIFICATION
I verify that the statements made in the Motion for Continuance are true and correct. I
understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904,
relating to unsworn falsification to authorities.
-~~~
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: July 212000
- ~ <- ~
~
-'lilt"
"';"'11"1
I
I
I
.~
.
BRIDGET LEANN IDDINGS,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2000-3192
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRiVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Motion for Continuance upon the
person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania
Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
Matthew J. Eshelman, Esquire
2108 Market Street
Camp Hill, PA 17011
Aye-r!4 L
George H. Kabusk
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: July 21,2000
,- ~ - ~ "
- ,-,~'
"H_' , _,=--"".~,n>
"
,
BRIDGET LEANN IDDINGS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSL YVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
00-3192 CIVIL TERM
IN RE: APPEAL FROM LICENSE SUSPENSION
BEFORE BAYLEY. J.
ORDER OF COURT
AND NOW, this
~~
day of September, 2000, the appeal of Bridget
Leann Iddings from the suspension of her operating privilege for a period of one year
for refusing a chemical test, IS DENIED.
J.
:saa
/~
C~ "'~~
Terrance M. Edwards, Esquire
For the Department of Transportation
Matthew Eshelman, Esquire
For Petitioner
I
,--
'11!1'1
1I~...~~..
~
~"~~ ~, ~I '"
I' -,~ ~
-~~"
"._~
~ .~
~'\',
0;
.~JTI\RY
....r-'"I .') () !~\'l;~' 9: 56
f'in .._,~ i~ (_,;.
;,~u ...)---
... "".. l."~\'\'\W
CUMt3'di~j\\'iiJ JUUI'4
'PENNSYLVANIA
~,M....~,...,.,.~"~~':II~~'i"9I";.II!!"!i"",""f~~~~~'
In~
.- - '"~ ~, ,.
-~'_'.~ ,__",h-""',"",_,_',","_ """'+~~,_-..",;,,_: .'_"j
BRIDGET LEANN IDDINGS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSL YVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
00-3192 CIVIL TERM
IN RE: APPEAL FROM LICENSE SUSPENSION
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., September 29,2000:--
Petitioner, Bridget Leann Iddings, appeals from an order of the Department of
Transportation suspending her operating privilege for one year for refusing a chemical
test pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547. A hearing was
conducted on September 25, 2000. We find the following facts.
On April 8, 2000, shortly after 2:00 a.m., Corporal Kenton McCoy of the Carlisle
Borough Police was dispatched to Bedford and North Street in the Borough of Carlisle
on a report that there were "people in the middle of the roadway." When the officer
arrived at the intersection, somebody pointed for him to go further down the street,
which he did. He then came upon a bleeding man, who was sitting on the steps of a
porch. Corporal McCoy saw petitioner nearby. She was crying and he asked her what
happened. Petitioner told him that as she was driving she came upon the man lying in
-.~ '
""",.
- ,--, ~-- -" --".--.-~.,< -, --,~,," """,
00-3192 CIVIL TERM
the road. When the officer asked her some more questions, petitioner admitted that the
man, Matt White, had been a passenger in her car and had fallen out of the vehicle.
Petitioner's car was parked on North Bedford Street. As Officer McCoy talked to
petitioner, he heard that her speech was slurred and he smelled an odor of alcohol
about her person.
Officer Jeffrey Kurtz also responded to the scene. He saw Matt White being
treated for head injuries by ambulance personnel. Corporal McCoy told Officer Kurtz
what he had learned. Officer Kurtz then talked to petitioner and she told him that White
had fallen out of her car. Officer Kurtz noticed blood on petitioner's clothes that he
believed came from White. He smelled alcohol on her breath, her eyes were glassy,
her speech was slurred, she staggered slightly, and she was very emotional. Officer
Kurtz asked petitioner to perform field sobriety tests, which she refused. He arrested
her for driving under the influence and took her to a DUI booking center.
At the booking center, Officer Kurtz read petitioner the Implied Consent
Warnings from Penn DOT form DL-26. Petitioner agreed to take a breathalyzer test.
The test was explained to her by a booking officer, Brandon Mitchem. The breathalyzer
was working properly. Mitchem told petitioner that she would have to blow two valid
breath samples. Petitioner blew into the breathalyzer machine, but did not blow enough
air to register a valid sample. Finally she blew enough air to register one valid sample.
However, she continued to blow an insufficient amount of air to provide a second valid
sample before the machine went through a cycle and a test ticket printed out.
-2-
.-,~- - . ~ - . .-.-- "<__"_ , "- ','C'..-, ' "';"','
00-3192 CIVIL TERM
Petitioner was then readvised of the Implied Consent Warnings and given a second
opportunity to blow two valid tests on one test ticket. Another cycle of the breathalyzer
was started and the same thing happened. After repeatedly blowing insufficient air into
the machine, petitioner finally blew enough air to register a valid test. She then
continued to blow insufficient amounts of air into the machine and did not complete a
valid second test because the machine recycled and the test ticket printed out. The
booking officer wrote petitioner up for a test refusal. Petitioners halfhearted efforts at
blowing air into the breathalyzer is memorialized on a videotape. She repeatedly would
stop blowing air into the machine even through she was instructed by the booking
officer to keep blowing.
I. Petitioner maintains that Officer Kurtz did not have reasonable grounds to
believe that she had been driving her car while under the influence of alcohol or a
controlled substance. Section 1547 of the Vehicle Code provides in pertinent part:
(a) General rule.-Any person who drives, operates or is in
actual physical control of the movement of a motor vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath, blood or urine for the purpose of
determining the alcoholic content of blood or the presence of a controlled
substance if a police officer has reasonable grounds to believe the
person to have been driving, operating or in actual physical control of
the movement of a motor vehicle.
(1) while under the influence of alcohol or a controlled
substance or both; (Emphasis added.)
Petitioner was involved in an accident when Matt White fell out of her moving
car, there was odor of alcohol on her breath, her eyes were glassy, her speech was
-3-
= ~.
~-=-~
-. .,'~-.. - -
.- __~ 'CC';';I
00-3192 CIVIL TERM
slurred, she staggered slightly, and she refused field sobriety tests. Officer Kurtz had
reasonable grounds to believe that she had been driving her vehicle while under the
influence of alcohol.'
II. Petitioner, who did not present any medical evidence that she was physically
unable to perform the breathalyzer test, maintains that she used her best effort to blow
two valid tests so that her operating privilege cannot be suspended for violating Section
1547(b)(1) of the Vehicle Code, which provides:
If any person placed under arrest for a violation of section
3731 (relating to driving under influence of alcohol or controlled
substance) is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by the police
officer, the department shall suspend the operating privilege of the
person for a period of 12 months. (Emphasis added.)
Petitioner's position is not supportable under Pappas v. Commonwealth
Department of Transportation, 669 A.2d 504 (Pa. Commw. 1996), in which the
Commonwealth Court of Pennsylvania stated:
In order to establish a prima facie case in support of a Section
1547(b) license suspension, DOT must prove inter alia, that the licensee
refused to submit to chemical testing, DOT need not establish that the
licensee objected to taking the test. Yi v. Department of Transportation,
Bureau of Driver Licensing, 164 Pa.Cmwlth. 275, 642 A.2d 625 (1995). 'It
is well established law that where a defendant, when taking a breathalyzer
test,does not exert a total conscious effort, and thereby fails to supply a
sufficient breath sample, such is tantamount to a refusal to take the test.'
Appeal of Budd, 65 Pa.Cmwlth. 314, 442 A.2d 404, 406 (1982). Even a
licensee's good faith attempt to comply with the test constitutes a refusal
, For purposes of a license suspension proceeding for refusal to submit to
breathalyzer test, the legality of an arrest is immaterial. Commonwealth of
Pennsylvania, Department of Transportation v. Wysocki, 517 Pa. 175 (1987).
-4-
0"-
,
~~~[
00-3192 CIVIL TERM
where the licensee fails to supply a sufficient breath sample. Vi.
A refusal is supported by substantial evidence where the
breathalyzer administrator testifies that the licensee did not provide
sufficient breath. See Mueller v. Department of Transportation, Bureau of
Driver Licensing, 657 A.2d 90 (Pa.Cmwlth.), petition for allowance of
appeal denied, _Pa. _, 665 A.2d 471 (1995) (officer's testimony
that licensee did not make a 'proper effort' was sufficient to meet DOT's
burden regarding refusal); Books v. Department of Transportation, Bureau
of Driver Licensing, 109 Pa.Cmwlth. 25, 530 A.2d 972 (1987) (officer's
testimony that licensee did not provide sufficient breath and stopped
blowing as soon as he saw the machine register was sufficient to meet
DOT's burden); Budd (officer's testimony that licensee failed to tighten his
lips around the mouthpiece of the breathalyzer was sufficient to prove
refusal). If DOT establishes refusal by utilizing the testimony of the
administering officer, it need not prove that the machine was in proper
working condition at the time of the test. Books; Budd. That is, once DOT
establishes refusal, the operability or suitability of the breathalyzer is not
at issue. Books; Budd.
Alternatively, DOT may establish refusal under these
circumstances by presenting a printout form from a properly calibrated
breathalyzer indicating a 'deficient sample.' Department of
Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa.Cmwlth.
185,624 A.2d 792 (1993); Pestock. In this situation, proper calibration
may be proven by either documentary or testimonial evidence. See
Lohner (calibration established by stipulation); Pestock (calibration
established by testimony of administering officer); see also 67 Pa.Code 9
77.25(c) (The certificate of accuracy shall be the presumptive evidence of
accuracy referred to in 75 Pa.C.S. 9 1547 (relating to chemical testing to
determine amount of alcohol or controlled substance).').
Once DOT has presented evidence that the licensee failed to
provide sufficient breath samples, refusal is presumed and the burden of
proof then shifts to the licensee to establish by competent medical
evidence that he or she was physically unable to perform the test.
Pestock.
III. Petitioner maintains that she did blow two valid breath tests so that her operating
privilege cannot be suspended for violating Section 1547(b)(1) of the Vehicle Code.
The regulations of the Department of Transportation at 67 Pa. Code 9 77.24(b) provide
-5-
.. .' ~ ,~.- "'" '_.-.,-~ "0' ',c . ''''1
00-3192 CIVIL TERM
in pertinent part:
The procedures for alcohol breath testing shall include, at a minimum: (1)
Two consecutive actual breath tests, without required waiting period
between the two tests.
In Commonwealth, Department of Transportation v. Schraf, 135 Pa.
Commw. 246 (1990), Schraf was arrested and charged with driving under the influence.
The facts were:
After being instructed on how to blow into the testing machine, Schraf
provided sufficient breath which produced a reading of .139. When Schraf
was given a second test pursuant to 67 Pa.Code ~ 77.24, she, on this
occasion, failed to provide sufficient breath; Hays testified that Schraf was
not making a tight seal around the mouthpiece. Hays also testified that
the machine completed its cycle and time ran out for providing the second
test. Hays informed Schraf that the failure to provide sufficient breath
would constitute a refusal and again showed her how to use the testing
machine. Less than twenty minutes after the first breath test, Schraf
provided a sufficient sample which registered a reading of .158. On the
next test as required by the above cited departmental regulation, Schraf
again failed to make a tight seal with her mouth on the mouthpiece and
did not provide a sufficient sample. Hays then informed Schraf that he
considered her to have refused the test.
PennDOT suspended Schrafs operating privilege for one year for failing to
submit to a breath test. The Court of Common Pleas of Butler County reversed the
suspension concluding that Schraf had complied with 67 Pa. Code ~ 77.24. The
Commonwealth Court of Pennsylvania reversed, concluding:
DOT argues that the trial court's interpretation of the regulation is
erroneous, in that it omits the word 'actual' from the regulation. DOT
argues that 'actual' in this context requires a test at which a valid reading
is obtained. It is well settled that an administrative agency's interpretation
of its own regulation is entitled to deference unless the interpretation is
clearly erroneous. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,
-6-
"
.~- .'"-
~..,. ,_ "__..- '''_. ._ "" _, c' -,
--,'"-'
. ,
00-3192 CIVIL TERM
65 S.Ct. 1215,89 L.Ed. 1700 (1945); Pelton v. Department of Public
Welfare, 514 Pa. 323, 523 A.2d 1104 (1987). In Flickinger v. Department
of Transportation, 119 Pa. Commonwealth Ct. 315, 547 A.2d 476 (1988),
we upheld a suspension for failure to provide a second breath test before
the machine went through its cycle and purged itself. In the present case,
Hays testified that when Schraf failed to provide sufficient breath on the
first unsuccessful test, the breathalyzer's time ran out. Furthermore, we
must agree with DOT that the trial court's interpretation of the regulation
has the effect of reading out the word 'actual'.
The facts in the case sub judice, cannot be distinguished from those in Schraf,
supra. We are bound by the holding in Schraf. For the foregoing reasons the
following order is entered.
ORDER OF COURT
AND NOW, this
1."
day of September, 2000, the appeal of Bridget
Leann Iddings from the suspension of her operating privilege for a period of one year
for refusing a chemical test, IS DENIED.
Edgar B. Bayley,J.
Terrance M. Edwards, Esquire
For the Department of Transportation
(
Matthew Eshelman, Esquire
For Petitioner
:saa
-7-