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HomeMy WebLinkAbout07-1487SONDRA MAE SCHREINER, IN THE COURT OF COMMON PLEAS PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA VS. RE: STATUTORY APPEAL PETITION - CHEMICAL TEST REFUSAL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DOCKET NO: CV 2007 BUREAU OF DRIVER'S LICENSING, RESPONDENT 07 NP7 OPERATING PRIVILEGE SUSPENSION APPEAL TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, comes the above-named Petitioner, Sondra Mae Schreiner, by and through her Attorney, Shawn M. Cunt', Esquire, and hereby appeals from a Notice of Suspension issued by the Pennsylvania Department of Transportation, Bureau of Driver's Licensing, and avers the following in support thereof: 1. This Court has jurisdiction over this case by virtue of 42 Pa.C.S.A. §933(a) and 75 Pa.C.S.A. §1550(a). 2. The Petitioner is Sondra Mae Schreiner, Pennsylvania Operator Number 24769440, whose place of residence is 12 Mall Road, Etters, PA 17319, with a date of birth of June 22, 1978. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office Center, 1101 South Front Street, Harrisburg, Pennsylvania. 4. The Appeal is taken from an Official Notice bearing a mailing date February 20, 2007. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was suspending his privilege of operating a motor vehicle for the period if one (1) year, effective March 27, 2007, at 12:01 a.m., pursuant to Section 1547(b)(1) of the Pennsylvania Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing on October 26, 2006. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit "A". 5. The one (1) year suspension of Petitioner's operating privilege is improper and illegal because: a. When the Petitioner was presented with the option to comply with the request to provide a breath sample by Patrolman Matthew Claeys of the Lower Allen Township Police Department, she did so. She performed the Breathalyzer test as requested, thereby, providing one good sample. However, a second "good" sample was not obtained. Nonetheless, as evidenced by the Police Criminal Complaint, said Officer chose to charge Petitioner with Section 3802(c) based on the single blood alcohol content level reading of .186. A true and correct copy of the Police Criminal Complaint is appended to this Petition as Exhibit "B." b. The procedural prerequisites that law enforcement must follow in order to obtain a valid sample were not met in this case. 6. The Petitioner requests relief pursuant to 75 Pa. C.S.A. § 1550 (b)(1) - Supersedeas. As this matter is timely filed and service has been effected upon the Department's legal office, and none of the enumerated exceptions under 75 Pa. C.S.A. §1550 (b)(1) (ii) or (iii) exist, the Petitioner specifically requests that this Honorable Court in its Order grant Supersedeas to stay the Department's planned suspension. WHEREFORE, Petitioner, Sondra Mae Schreiner, respectfully requests this Honorable Court hold a de novo hearing on her Appeal from the suspension of her operating privilege and will invalidate the illegal taking of her privilege and the improper action of the Department of Transportation, Bureau of Driver's Licensing, to suspend her operating privilege. Respectfully submitted, Shawn M. Curry, Esquire Attorney for Defendant 4807 Jonestown Road, Suite 148 Harrisburg, Pennsylvania 17109 Telephone: (717) 657-3900 Fax No.: (717) 657-2060 EXHIBIT A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: FEBRUARY 20, 2007 SONDRA MAE SCHREINER WID # 070446664382277 001 12 MALL ROAD PROCESSING DATE 02/13/2007 ETTERS PA 17319 DRIVER LICENSE # 24769440 DATE OF BIRTH 06/22/1978 Dear MS. SCHREINER: This is an Official Notice of the Suspension of Privilege as authorized by Section 1547B1Iurof the Pennsylvania Vehicle Code. As a result of the Your Section 1547 of the Vehicle Code, CHEMICAL TESTvREFUSAL,? on 10/26/2006: Your driving privilege is SUSPENDED for a YEAR(S) effective 03/27/2007 at 12:01 a.m. period of 1 COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's cards) in your possession on or before 03/2licenses (caera 7/2007. Yoummay surrender these items before, 03/27/2007, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of $10.00. You must present two (2) forms of oper identification (e.g., birth certificate, valid prU.S. passport, marriage certificate, etc:.) in order to obtain Your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. letter why you are unable tou ret rnspecify in your license. Remember: You may not retain Your driver's license for identification Your driver s items to: Purposes. Please send these 070446664382277 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To Pay Your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, FEBRUARY 20, 2007, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for Your appeal to be valid, you must 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 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 03/27/2007. 070446664382277 Sincerely, Janet L. Dolan, Director Bureau of Driver Licensing INFORNATION 8:00 a.m. to 6:00 M. IN STATE 1-800-932-4600 TDD IN STATE OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 1-800-228-0676 WEB SITE ADDRESS www.dmv.state -- us 717-412-5380 EXHIBIT B COMMONWEALTH OF PENNSYLVANIA COUNTY OF: Cumberland Magisterial District Number: 09-1-01 District Justice Name: Hon. Charles A. Clement, Jr. Address: 400 Bridge St. Suite #3 New Cumberland, PA 17070 Telephone: (717) 774-5989 Docket No.: CR-00004-01-06 Date Filed: 10-27-06 OTN: L 318437-0 e en ants ac t ntctt ? Defendant's Sex Defendant's D.O.B. ® Whitc ? Asian Black ? ® Femalr ? Hispanic ? Narive American Defendant's A_K A ? ? "tale 06/22/78 Plate Number ETR-4227 T2006-10-01247 POLICE CRIMINAL COMPLAINT Y vCCOMMONWEALTH OF PENNSYLVANIA DEFENDANT vs. NAME and ADDRESS Sondra Mae Schreiner 12 Mali Rd Etters, Pa 17319 210-58-9619 State Registration Sticker(M PA State PA 24769440 District Attorney's Office beca se: (The district attorney may require that the ccompla ntt,, arrest -a)rranlalffdavrtdorr bo hube approved by the anorne Pa.R.Cr.P IOZ) y for the Commonwealth prior to filing. (Name of Attorney for Commonwealth - Please Print or Type) I 1 ignaturc of Anorncy for ommonae ) Ptl. Matthew Claeys ( ate ( ame of A fiant - ease not or ype) ] 8-30 of Lower Allen Township Police Department (Officer Badge Number / I.D.) 1 en t y epar men or gency epresen a an o 1 lea PA 0210600 LAT2006-10-01247 ? IV1SIOn (Police AI ncy -OR -I Number) do hereby state: (check the appropriate box) (OriginalingAgencyCaseNumber(OCA)) ® I accuse the above named defendant who lives at the address set forth above ? I accuse the defendant whose name is unknown to me but who is described as ? I accuse the defendant whose name and popular designation or nickname is unknown to me and whom I have therefore designated as John Doe with violating the penal laws of the Commonwealth of Pennsylvania at Society Hill Dr at Slate Hill Rd (PlaclPolitical Subdivision) In Lower Allen Twp., Cumberland County on or about 10/26/06 C 0410 Participants were: (if there were participants, place their names here, repeating the name of above defendant) Sondra Mae Schreiner 2. The acts committed by the accused were: (Set forth a summary of the facts sufficient to advise the defendant of the nature of the offense charged- A citation to the statute allegedly violated, without more, is not sufficient. In a summary case, you must cite the specific section and subsection of the statute or ordinance allegedly violated.) 75 - 3802 Driving under influence of alcohol or controlled substance - 3802 al An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely drivin, operating or being in actual physical control of the movement of the vehicle. g AOPC 412-(6/96) Ilmemot Version) 1-3 Oil- (Cominuati,n of No-?! Defendant's Name: Sondra Mae Schreiner POLICE Docket Number: CR-401-06 CRIMINAL COMPLAINT 75 - 3802 Driving under influence of alcohol or controlled substance - 3802 c Highest rate of alcohol.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is .16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. To wit, BAC of .186%. all of which were against the peace and dignity of the Commonwealth of Pennsylvania and contrary to the Act of Assembly, or in violation of , 3802 ( ccuon z. 3802 (Section) t f Section) Al of the Title 75 1 ( u seuton (PA Statute) counts C of the Title 75 1 ($uhscction} (PA Statute) (counts) of the ;Subsection) (PA S[erotcj (counts) 4. of [he IPA Sarum) (counts) I ask that a warrant of arrest or a summons)be issued and that the defendant be required to answer the charges I have made. (In order for a warrant of arrest to issue, the attached affidavit of probable cause must be completed and sworn to before the issuing authority.) 4. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge or information and belief. This verification is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) relating to unsworn falsification to authorities. 10/26/06 8t[ /?'= Gr ( tgnature ant) AND NOW, on this date October 312006 completed and verified. An affidavit of probable cause m e , I certify that the complaint has been properly p m orde arrant to issue. 09-1-01 t (Magisterial Disvin) v SEAL t - f I ssu ing Authority) AOPC 412-(h19h) pnterner Version) 2-3 Defendant's Name: Sondra Mae Schreiner ...? POLICE Docket Number: CR-401-06 r ?. CRIMINAL COMPLAINT AFFIDAVIT of PROBABLE CAUSE On 10/26/06. I was called to the area of Society Hill Dr and Slate Hill Rd for person who was slummed over the wheel of their vehicle. Lower Allen EMS was also dispatched to this location. I arrived and found a white female. later identified as Sondra Mae Schreiner. slummed over the wheel of her vehicle. The vehicle was running and the headlights were on. I knocked on the driver's side window several times, and she did not wake up. I continued to knock on the window until EMS arrived on scene. At this point. Schreiner began to wake up. She opened her eyes slightly. 1 checked to see if the door was open and it was. 1 opened and asked if she was all right. She did not reply and began to roll her head vehicle. back down, as if to continue to sleep- 1 asked again, louder, if she was all right, and she replied that she was talking with her children. There was no other persons in the I could smell a strong odor of an alcoholic beverage coming from her breath as she spoke. Schreiner opened her eyes, and was now awake. ] noticed that her eyes were bloodshot and glassy. I asked if she had her driver's license with her, and she said that she did. I asked to see it. When I did, she reached for the center console of the vehicle, then put her vehicle in reverse. 1 instructed her to put the vehicle back into park. She then argued with me that she wasn't trying to move her vehicle. 1 instructed her again to put the vehicle into park- and she did. I again asked for her driver's license. She began to reach for her purse, then stopped. I asked where she was coming from this evening, and she said, "You should know, you pulled me over." I told I had not pulled her over and that someone had called EMS because she was sleeping. 1 asked if her driver's license was in her purse, and she said that it was. I asked her to get it, and she said that it was in there, and if] wanted it, l could get it myself. She then handed me her purse without me asking for it. I found her driver's license in her wallet, and attempted to return her purse to her. She told me that I could search it. I said that I did not want to. She became argumentative, so 1 put her purse on the ground. Schreiner was become agitated with my presence. I allowed EMS to do what they needed to examine her. During my conversation with Schreiner, I noticed that her speech was slow and slurred. I came back up to the vehicle, and asked Schreiner how much she had to drink tonight. She said that she wasn't drinking, and that I could give her a breath test if) wanted. I asked Schreiner to step from the vehicle. As she did, she nearly fell over. She fell back onto her vehicle, and grabbed it to keep from falling down to the ground- I attempted to give her a PBT. When l instructed her to blow into the machine, she pied to snatch it from my hand. I instructed her that ] was going to hold the machine. Schreiner was swaying as I was speaking with her, and felt it better that she sit back in her vehicle. I administered the PBT to Schreiner, and it did show a positive result for alcohol with a reading of .194%. Based on my training and observations, I felt that Schreiner was under the influence of alcohol to a degree that it would be unsafe for her to attempt any further field sobriety testing. I also felt that she was incapable of safe driving based on her current condition. I told her to exit the vehicle again and place her hands on the vehicle. I placed one handcuff on her tight arm, and told her that she was under arrest for DUI. As I was trying to handcuff her left arm, she attempted to pull it away from me. 1 was able to secure the handcuff without incident. As I was transporting Schreiner to Cumberland County Prison for processing, she told me that she was a good mother, and that I should be arresting her boyfriend because he is always out drinking and driving She then said that she had a designated driver, but she left. She then begged me not to do this, and told me that I was ruining her life. I read the implied consent form to Schreiner, and after some conversation, she consented to a breath test. She was able to provide one good breath sample. It registered at a . 186% BAC. Schreiner failed to follow instructions, and could not provide a second breath sample for the test to be complete. The intoxilyzer timed out because of this. 1 allowed Schreiner to attempt a second breath test. On the second test, she failed to provide and good samples- I ask that a summons be sent to Sondra Mae Schreiner in reference to these charges- 1, Ofc Matthew B. Claeys LAW, DEPOSE AND SAY THAT THE FACTS SET FOR, BEING DULY SWORN TH N HE FOREGOING AFOFIDAV TO ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF. (Signature of Affiant Sworn tome and subscribed before e th-s 31st day of October 2006 10-31-06 Date District Justice My commission expires first Monday of January, 2008 SEAL AOPC412-(6196) (lmcmet version) 3-3 SONDRA MAE SCHREINER, IN THE COURT OF COMMON PLEAS PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA VS. RE: STATUTORY APPEAL PETITION - CHEMICAL TEST REFUSAL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DOCKET NO: CV 2007 BUREAU OF DRIVER'S LICENSING, RESPONDENT AFFIDAVIT OF SERVICE I, Shawn M. Curry, Esquire, do hereby affirm that I have served upon the Department of Transportation, Bureau of Driver's Licensing, a true and correct copy of Sondra Mae Schreiner's Petition for Appeal of Operating Privilege Suspension by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, Certified Mail, Return Receipt Requested, Receipt No,. 7001 oy-0 avo ;&Y6 )(V/ , addressed as follows: Office of Chief Counsel Department of Transportation Riverfront Office Center - 3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to un-sworn falsification to authorities. Date: -/( 7 Respectfully Submitted, MC NE & IT GS, L C By: Shawn M. Curry, Esquire Attorney for Petitioner Attorney ID# 202061 4807 Jonestown Road, Suite 148 Harrisburg, Pennsylvania 17109 Telephone: (717) 657-3900 Fax: (717) 657-2060 1 ? IJ -'c! i? ? ? n?ri ? ? rn ;?'?° ? U. ?3? MAY 17 2007 M? SONDRA MAE SCHREINER, PETITIONER VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RE: STATUTORY APPEAL PETITION - CHEMICAL TEST REFUSAL DOCKET NO: CV 2007 67-lYS'j' L110`L-T" ORDER OF COURT AND NOW, this 0:14 day of March, 2007, IT IS HEREBY ORDERED AND DECREED THAT the Petitioner's Motion for a de novo hearing regarding the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania's suspension of the Petitioner's Operating Privilege IS GRANTED. Specifically, the Court further finds that Petitioner's Motion challenging the suspension was timely filed as it was filed within thirty (30) days of the mailing date of the Bureau's Notice. This matter is set for 4&"he 13 day of "41j- , 2007, at I 30 No'clock in Courtroom a FURTHER, this Court directs The Department to stay its planned suspension during the pendency of this Appeal pursuant to 75 Pa. C.S.A. §1550(b)(1). Dii ribution: J?Sh4 M. Curry, Esquire ,;PJffice of Chief Counsel a t_ C )7 l? SONDRA MAE SCHREINER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-1487 CIVIL TERM IN RE: APPEAL FROM DRIVER LICENSE SUSPENSION ORDER OF COURT AND NOW, this day of August, 2007, the appeal of Sondra Mae Schreiner from the suspension of her driving privilege for one year, IS DISJ ISSED. George Kabusk, Esquire For the Department of Transportation Shawn M. Curry, Esquire For Sondra Mae Schreiner :sal By the Court, 4 ? 1 Edgar B. Bayley, J. i t4 5 `? c rt ? . j SONDRA MAE SCHREINER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING 07-1487 CIVIL TERM IN RE: APPEAL FROM DRIVER LICENSE SUSPENSION OPINION AND ORDER OF COURT Bayley, J., August 17, 2007:-- Petitioner, Sondra Mae Schreiner, filed an appeal from the suspension of her driving privilege for one year for refusing a breath test by failing to give two valid breath samples following her arrest for driving under the influence. A hearing was conducted on August 13, 2007. We find the following facts. On October 26, 2006, at approximately 4:10 a.m., Officer Matthew Claeys of the Lower Allen Police went to Society Hill Drive in Lower Allen Township where it had been reported that a person was passed out behind the wheel of a vehicle. He found the vehicle in a lane of Society Hill Drive. The headlights were on; the motor was running; and the windows were up. A woman was in the driver's seat. No one else was in the vehicle. Officer Claeys knocked on the driver side window and yelled without getting a response. He did that several more times until the woman looked up. The Officer opened the driver's side door and asked her if she was okay. She said that she was just talking to her children. Her speech was slurred and her eyes were bloodshot and glassy. The Officer smelled an odor of alcohol on her 07-1487 CIVIL TERM breath. He asked her for her license. She could not find it and said that it was in her purse. She handed the Officer the purse and told him to get her license, which he did. She was Sondra Mae Schreiner. Officer Claeys asked her where she was coming from and she said he should know because he pulled her over. The Officer had her get out of the vehicle and she almost fell. He gave her a preliminary breath test which was positive for alcohol. He felt that it was unsafe to conduct field sobriety tests. Believing that Schneider was under the influence of alcohol to a degree that rendered her incapable of safe driving, Officer Claeys arrested her for driving under the influence. He then checked her mouth and took her to a booking center where he read Implied Consent warnings to her. Schreiner consented to a breath test. She had been under the continuous observation of Officer Claeys for well beyond twenty minutes. With Officer Claeys present, and with a qualified breath test operator using an Intoxilyzer 5000, Schreiner blew one valid breath sample. Despite clear instructions and repeated opportunities, she did not blow sufficient breath to register another valid sample because she kept starting and stopping rather than continuously blowing into the mouthpiece for a sufficient time for it to register a valid second test.' Section 1547(b)(1) of the Vehicle Code, provides: If any person placed under arrest for a violation of section 'At the hearing, notwithstanding that she had blown one valid breath sample, Schneider blamed her failure to blow a second valid sample on a tongue ring that she claims was in her mouth at the time. We watched the videotape of the testing and could see nothing that would support her position that any tongue ring impeded in any way her ability to blow an adequate amount of breath into the machine to register a valid test. -2- 07-1487 CIVIL TERM 3802 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 ... (Emphasis added.) The regulations of the Department of Transportation at 67 Pa. Code § 77.24(b) include: The procedures for alcohol breath testing shall include, at a minimum: (1) Two consecutive actual breath tests, without a required waiting period between the two tests. The failure to perform two tests as required by this regulation warrants the suspension of an operator's driving privilege under Section 1547(b)(1) of the Vehicle Code. Commonwealth, Department of Transportation v. Schraf, 135 Pa. Commw. 246 (1990). In Pappas v. Commonwealth Department of Transportation, 669 A.2d 504 (Pa. Commw. 1996), 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 where the licensee fails to supply a sufficient breath sample. Yi. 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, 542 Pa. 637, 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 -3- 07-1487 CIVIL TERM 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).... 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 § 77.25(c) ('The certificate of accuracy shall be the presumptive evidence of accuracy referred to in 75 Pa.C.S. § 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. (Emphasis added.) Officer Claeys had probable cause to arrest petitioner for driving under the influence. While petitioner blew one valid breath test on the Intoxilyzer 5000, she did not exert a total conscious effort to blow a second sufficient sample. Failing to provide a second sufficient breath sample constitutes a refusal to take the test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this T day of August, 2007, the appeal of Sondra Mae Schreiner from the suspension of her driving privilege for one year, IS DISMISSED. -4- 07-1487 CIVIL TERM George Kabusk, Esquire For the Department of Transportation Shawn M. Curry, Esquire For Sondra Mae Schreiner :sal -5- Edgar B yley, J.