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Home My WebLink About01-05452 SONIA R. BIXLER Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ~ ~~~ ~~~, G~ t ORDER AND NOW, this r~~day of , 2001, upon consideration of the within Petition, it is hereby ordered and decreed that a hearing be held on the 17 day of 1,1,~2ti 2001, at ~ o'clock in Courtroom a- , Cumberland County Courthouse, Carlisle, Pennsylvania. Notice of said hearing shall be sent by certified mail to the Department of Transportation by Petitioner's attorney at least sixty days prior to the date of the By the J. ae''~ A~ ~~ ~I~`.x~a 3$diEE3Cx 45 uF. r.d.: ~ Nk ~Lwar ._f ..._. -.-. _-_-.11wn. a.4 at?Y..d+S+Yti'LYI~ Ig`srT%~4v4YS.'~k9k4£rnL'alAL8H5ffiaxY6BdkR.eFtE9YXk(b'*~'P~Fe6~l$$4IBEIY ~' - ka-I rt ~u ~ ~'C' ~f r cy~~ fs? ~~ ~ ` ! j~ ~~: SONIA R. BIXLER Petitioner ~. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. U ~ - ~5~i c~a2 ~~Q LICENSE SUSPENSION APPEAL AND NOW, this /~~h day of September, 2001, comes Sonia R. Bixler, through her attorneys, Mancke, Wagner, Hershey & Tully, who respectfully represent: 1. Your Petitioner is an adult individual residing at 35 West Factory Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Your Petitioner received notice of a license suspension for an alleged refusal to submit to chemical testing arising out of an incident that occurred on or about July 14, 2001 in Cumberland County, Pennsylvania which is attached hereto and made a part hereof as Exhibit A. 3. Your Petitioner believes, and therefore avers, that said license suspension is illegal, unjust and improper for reasons which include, but are not limited to: a. there was no valid refusal; b. Your Petitioner was inadequately advised of consequences for any alleged failure to submit to chemical testing; c. any warnings concerning the alleged refusal and consequences related thereto were not given in a timely fashion; d. any required warnings and advice pursuant to §1547 were not given by a police officer in a timely and proper fashion; e. Petitioner was prevented from fulfilling the requirements by inadequate, improper and untimely actions and statements by the booking officers; f. the refusal was as a result of actions by those other than the Petitioner; g. the instructions andlor warnings were not made in a timely fashion and not made pursuant to §1547 of the Motor Vehicle Code; and h. there was no knowing and conscious refusal to take the chemical test. WHEREFORE, Your Petitioner prays Your Honorable Court to enter an Order scheduling a hearing to determine the validity of the licenses suspension outlined in Exhibit A. John . Mancke, Esq., ID No. 07212 Manc e, Wagner, Hershey & Tully 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner Dated: September 17, 2001 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: AUGUST 24, 2001 SONIA RENEE BIXLER WID * D12296102133932 DD1 35 W FACTORY STREET PROCESSING DATE OB/17/20D1 DRIVER LICENSE * 24950651 MECHANICSBURG PA 17D55 DATE OF BIRTH 07/25/1979 Dear MS. BIXLER: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547 of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 07/14/2001: • Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 09/28/2001 at 12:01 a.m. I WARNING: If You are convicted of driving while your I I license is suspended/revoked the penalties will be a 1 I MINIMUM of 90 days imprisonment AND a 1,000 fine AND I I Your driving Privilege will be suspended/revoked for I I a MINIMUM 1 year period I ~**~***************************~~*************~*****~t*****~t COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 09/28/2001. Yau ..^.ay surrender these items before, 09/28/2001, 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 cast of 9.00. You must Present two C2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward until we receive your license(s). steps to acknowledge this suspension serving any suspension Complete the following a EXHIBIT c~ F ~6. 4 N J Q 012296102133932 1. 2 3 Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennD07. 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. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transp~rtatian Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 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. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571Ca)(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 an 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. 012296102133932 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, AUGUST 24, 2001, 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 Chiet 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 09/28/2001. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-80D-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dot.state.pa.us I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dat~ -~ ~ ~ ~'T, ~ ~ ~. ~z ~~ ~- ~ ~ ~ ~ ~~ ~~ ~ ~~ z _. _ ~- ~, DL-zsp-szl 'CHEMICAL TESTING WARNINGS AND REPORT OF O~OO H2S ~•, REFUSAL TO SUBMIT TO CHEMICAL TESTING AS ., . _ ~' AUTHORI*EDBY • ~ OF THE VEHICLECODE~ `"~ ~`~~"`~ ~ ~~~~=" -- - SEX - DA TE OF BIRTH FIRST SOtJIA MIDDLE fjEN~E LAST - - ~/KLE2 _ I 40NTH O~ D Y aS YEAR ~9 ADDRESS CITY ST ATE ZIP CODE 35 W~-Sl' FAG~OR-Y 'ST[i:-ECT MCGWANtc.S(3UR.G ~} (r~ I-]USS DRIVER NUMBER STATE CHEM TEST REDUE3T DATE - SOCIAL SEC UpITY N UMBER ~~ ~~O ~~_~ P~ MONTH o~ DAY ! y YEAR o f 1 7 ~ ~ ~f 3 9 7 a • ~. l.Y Please be advised Mat you are now under arrest for driving under the inlluenee of alcohol or a wnuoiled substance pursuant to section 3731 0l the Vehicle Code. Q 1 am requesting that you submit to a chemical test of ~ R AT N (breaM, blood or urine. OlRaer chooses Me chemical lest.) ('3, It Is my duty, as a polide ollicer, to Inform you Mat if you relu¢a~to submit to the chemical test your operating privilege will be suspended for a `rperiod of one year. ` 4Y7~ The constitutional rights you have es a criminal defendant, commonly known as the Miranda Rights, including the right to speakwiM a lawyer end L~..~c/~ the right to remain silent, apply Doty to criminat prosecugons and do not apply to the chemical tesdng procedure under Pennsylvpnia's Impgsd Consent Law, which Is a civil, not a ulminal procaerrng. You have no rght to speak fo a lawyer, or anyone else, before taking the chemical lest requested by the police officer nor do you have a rght to remain silantwhen asked by the police oltieer to submit to Me chemical test. Unless you agree to submit to the test requested by Me police officer our conduct wiR be deemed to be refusal end your operating privilege wiR be suspended for one year. c) our refusal to submit to chemical testing under the Implied Consent Law may be Introduced Into evidence in a criminal proeeeutlon for driving while under (he inguenee of alcohol or a eantrefied substance. I cerdly that I have read Ma above warning to the motorist regarding Me suspension of their operel(ng privilege and gave Ma motorist an opportu- nity to submit to chemical testing. ~P2 I/ Signaure of Officer: r ~-vti- Dete: fY o I I have been advised of the above. - ~ ~ ~ tl~ ; ~ ~ ,1 - -~~ Signature of Motorist: Date: Motorist refused to sign, alter being advised. Signature of Ollieer:_ AFFIDAVIT Date: 1. The above motorist was placed under arrest for driving under the influence of alcohol or a controlled substande in violation of Seetlon 3731 of Me Vehicle Code, end Mere were reasonable grounds to believe that the above motorist had been driving, operating or in actual phyeical control of the movement of a motor vehicle while underRthe influence of alcohol or a cantrolled~substence or both. or That the above named motorist was involved in en aaident in which the operator or passenger of any vehicle Involved or a pedeshian required Vestment at a mediwi faeiliry or was killed. `~ 2. Tha above motorist was requested to submit to chemical testing as authortzed by Secgon 1547 of the Vehicle Code. 3. Tha above motorist was informed by a pollee oiliest of Me chemical test warnings contained In paragreph 3 and 4 above. 4. The above named motorist relased to submit to chamiral tesdng. OFFICER NOTE: Ths rafwal to sign ihle form ti not i refusal to submit to the chemlea4 test, You must eHll give the motorist sn opportu- nlty to take the ehemiuri teat altar reviewing This Corm. ll the Individual was operating a commercial motor vehicle while having any alcohol or a controlled subatanca In their system, you moat also complete the reverseOSide of't/his form. Olticer Signature: '~r ~- Y~.~ I ~,.6d~ OtlicerName: T~Q lG~'R _r~ISSINV.~~ (Type a Prlnq Forward to: D.epartmenl of Transportation Bureau of Driver Licensing P.O. Box 2253 Harrisburg, PA 17105 THIS FORM MAY BE DUPLICATED Badge Number: X330 Jurisdiction: ~ ~ Phone: (?'~) Co71`-7500 r I~ . .~ . r:i Mailing Address PA- Si a i E PoLrc~ Rnno Q2~TZ i~2t~t al~Ilaa ~ Pas (-ISG Pa• r?!r2 Nate: Any pertinent facts not covered by the affidavit should be submitted on a separate sheet and attached hereto. That sheet should include the names of additional wlinesses necessary to prove the elements to which you have attested. ADORIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS-51 to ~~, - :-1. ice. •r .y ~ ^ ~ ":il'. T.. + 1 T ~~ ~ v ~ - l y { ~~rmmi- ~~ _{~.. -7 ,.; L m .. r? _ s. ! - T•. ~ l: m1 - -z ., _t'~*3 ~ Li.-_i~ ~ ~ iii ,U _ G T _ ~`° t ~ rtr j$1! _ J X13 l;j.:.~i~ ~iJ ~ ~_. ~ y ~ r ~_..y iii 'yM .~:i3 ^i~'1"' L.. - }.~ ~.' C - ... .. . m ~ m .. t .Q 9 fi T C . i ~ 1. S Z ~ _ ~ ~ . ~ .. ~ Y r O ~ ~ Ili ~ £ ~ Y I p... 5 .: iti ~ 7"i 1 ~. VT~ O . : ~~ .J I. ~i tJ , ~~ ttt ~~_ i . ~ -T ? .. L .. ~T i3 T ~ \.. ~ 1 3 f ~ ~ ~ T -~ m ~ - 2 i z , c _ ~ _; ~. w rt G ` r y _ ~ 9 ~ ~~ g m y '~ ~3 ,'rt Cpl =, ,.u ~ T 1~ 9 "i ~ + ' t = Ah Z C L^J~ ~ eW lyt~ t~} ~ ~ 3 ~ 'R' ~ 3' ~' ( z. ~r n ~ _. ' q _ _s as a 'y r~. ,~ ~r{ J1' W LJ I IJJ {r ~J ~ I Y _ ~ . ~ I .~ nnQ' W~ '~ V• ®® 'yFi ]~ 2 I F If t. ;, , . - s s. y .. 4 t METRO .THE HARRISBURG AREA POLICE INFORMATION RESOURCE SYSTEM (CDA DJH2 LALC) PAGE 2 ARREST REPORT REP#: Ol 07/14/01 ARR#: 433209 001 C DOCK#: 01070009 INC#: 20010700009PSP 07/14/01 SONIA BIXLER WAS BROUGHT THE WEST SHORE PROCESSING CENTER BY PENNSYLVANIA STATE POLICE TROOPER DISSINGER ON 07/14/01 AT 0147 HOURS. BIXLER WAS AT THE CENTER TO BE PROCESSED FOR DRIVING UNDER THE INFLUENCE. BIXLER WAS PHOTOGRAPHED AND FINGERPRINTED. ALL CHECKS WERE MADE AND A PREVIOUS DUI ARREST WAS DISCOVERED UNDER III. ALL OTHER HISTORY CHECKS WERE NEGATIVE. BIXLER WAS ALSO GIVEN THE STAND FIELD SOBRIETY TEST, AND WAS GIVEN THE HGN, WALK AND TURN, AND THE ONE-LEG STAND TESTS. BIXLER SCORED 5 CLUES OUT OF 6 POSSIBLE IN THE HGN. BIXLER SCORED 2 OUT OF 6 POSSIBLE CLUES ON THE WALK AND TURN. BIXLER SCORED 2 OUT OF 4 POSSIBLE CLUES ON THE ONE-LEG STAND. SFST TEST WERE ADMINISTERED BY AGENT HECKARD. THE BREATH TEST WAS GIVEN ON AN INOTOXILIZER 5000 BREATH TESTING INSTRAMENT. MORE THAN 20 MINUTES ELAPSED BEFORE 2 BREATH TESTS WERE ADMINISTERED BY AGENT HECKARD. INSTRUCTIONS WERE GIVEN BY AGENTS HECKARD AND MITCHEM. THE FIRST BREATH TEST WAS A DEFICIENT SAMPLE AND THE SIMULATOR TEST WAS .095. AFTER THE FIRST BREATH TEST THE IMPLIED CONSENT FORM WA5 READ TO BIXLER BY AGENT HECKARD. THE SECOND BREATH TEST WAS ALSO A DEFICIENT SAMPLE AND THE SIMULATOR TEST WAS .096. DURING THE BREATHAGENT HECKARD SMELLED AN ALCOHOLIC BEVERAGE. AGENT HECKARD ALSO COULD HEAR THE SOUND OF BIXLERS BREATH COMING OUT OF HER MOUTH AND NOT GOING INTO THE MOUTHPIECE. DURING THE ENTIRETY OF THE TWO BREATH TESTS AGENT HECKARD SMELLED A STRONG ODOR OF PURFUME AND AN ALCOHOLIC BEVERAGE. WHILE BIXLER WAS AT THE PROCESSING CENTER HER SPEECH WAS UNCLEAR AT TIMES AND WE ASKED HER TO REPEAT WHAT SHE SAID. BOTH THE SFST TESTS AND BREATH TEST WERE VIDEO TAPED AND BIXLER. WAS NOTIFIED THAT AUDIO AND VIDEO RECORDINGS WERE BEING MADE. BIXLER WAS ALSO GIVEN MIRANDA WARNINGS BY AGENT HECKARD. BIXLER WAS RELEASED TO ERIKA ATTAYA AT 0402 07f14/O1. NARRATIVE BY AGENT HECKARD SONIA R. BIXLER Petitioner v. COMMONWEALTH OF PENNSYLVANW, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 01-5452 CIVIL J ~ORDER AND NOW, this ~ day of l~ , 2001, it is hereby ordered and decreed that the hearing scheduled for December 17, 2001 at 2:30 pm is continued to February 4, 2002 at 2:15 pm in Courtroom No. 2, Cumberland County Courthouse, Carlisle, Pennsylvania. Nptice of said hearing shall be sent by certified mail to the Department of Transportation by Petitioner's attorney at least sixty days prior to the date of the hearing. ~~ ~ J2-1~-a ~ ,- . ,,: _. . ,,zNe'P,3r _.u'~:r .~r ~_. .... __..-~ ... ,.._. .r. ~~:.,"...+~.....w.. .._,~.~~. :.~~e:xus~c.~aaID..~x~~u' .+a ~~x~.saxatxu ~. _. i i~~h~t~~"''1 ~~ ';inn ~r t !, ,'.} r ~- ~~ SONIA R. BIXLER, IN THE COURT OF COMMON PLEAS OF PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT 01-5452 CIVIL TERM IN RE' APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this (~ ~ day of February, 2002, the appeal from the suspension of a driving privilege, IS DISMISSED. John B. Mancke, Esquire For Petitioner ~eorge H. Kabusk, Esquire For Respondent Edgar B. C~ ~ '~~S oz-iz-oz :saa ,: atisaYis~;iF3lt~'63P5~bF~eauYisatadkkSGiSU'~c~aae*~e..,n ~ -:t.~ . ~ z v,~ ,m_~.,.ruvsauai ~su . :..: 3se e~'3''.I^Jf~W. rcYe' ~ •• °.~`W~NYaiH~rVNl4tllN. ., ti _,r1 ++' ~~ va .. .._ , SONIA R. BIXLER, IN THE COURT OF COMMON PLEAS OF PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT 01-5452 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND.ORDER OF COURT Bayley, J., February 11, 2002:-- Petitioner, Sonia Bixler, filed this appeal from the suspension of her driving privilege for one year for failure to compete a test of her breath following her arrest for operating a motor vehicle while under the influence of alcohol. A hearing was conducted on February 4, 2002. We find the following facts. On July 14, 2001, Trooper Keir Dissinger of the Pennsylvania State Police, arrested petitioner for driving under the influence of alcohol on Interstate 81 in Cumberland County. Trooper Dissinger took petitioner to a booking center, where he read to her the following warnings: 1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to section 3731 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of BREATH. 3. It is my duty, as a police officer, to inform you that if you refuse to submit to the chemical test your operating privilege will be suspended for a period of one year. 4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to 01-5452 CIVIL TERM speak with a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil, not a criminal proceeding. b) You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree to submit to the test requested by the police officer your conduct will be deemed to be refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance. Petitioner signed the form on which these warnings were written acknowledging that she had been so advised. Trooper Dissinger then turned petitioner over to a booking agent, David Heckard. After observing defendant for twenty minutes, Agent Heckard started to conduct a test of petitioner's breath on an Intoxilyzer 5000. The certified unit was calibrated and working properly. In a procedure that was videotaped, petitioner was told that she would have to give two breath samples. She was instructed to make a tight seal around the end of the mouthpiece, and blow into it until she was told to stop. Petitioner took the mouthpiece at 2:19 a.m., and started to blow. She did not blow enough air into it to register even one beep on the machine. She was repeatedly instructed on how to blow a sufficient amount of air into the machine. After blowing five separate times, and not registering any air into the machine, Officer Heckard read her the same warnings as had Trooper Dissinger. Petitioner asked Officer Heckard how many times she had to blow into the machine. He told her that he -2- . ti 01-5452 CIVIL TERM could already have deemed a refusal, but that he was going to "give her another shot." Officer Heckard had petitioner blow four more times into the mouthpiece, none of which registered any air into the machine. During this period, he again repeatedly instructed heron how to blow air into the machine sufficient to register a valid breath test. At 2:37 a.m., Officer Heckard told petitioner that he deemed her conduct a refusal to take a breath test. Section 1547(b)(1) of the Vehicle Code, 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.) 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 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 -3- . - 1 01-5452 CIVIL TERM 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 of Driver Licensing, 109 Pa.Cmwlth. 25, 530A.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).... [D]OT 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.) In the case sub judice, petitioner, after being warned of the consequences of -4- 4 ~ n ~ 01-5452 CIVIL TERM refusing to submit to a test of her breath, failed to provide sufficient breath into an Intoxilyzer 5000 to register even one test. After being warned again of the consequences of refusing to give a sufficient breath sample to conduct a valid test, petitioner again failed to blow a sufficient amount of air into the machine to register even one test. Two test tickets were printed out, each registering a deficient air sample. Trooper Heckard then deemed that there was a test refusal. Not only did petitioner fail to provide a sufficient sample of breath to register two valid tests, it is obvious from looking at the videotape, that she made no good faith effort to comply. She has presented no medical evidence that she was physically unable to perform a test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this \\~ day of February, 2002, the appeal from the suspension of a driving privilege, IS DISMISSED. Edgar B. Bayley, J. John B. Mancke, Esquire For Petitioner ~ George H. Kabusk, Esquire For Respondent :saa -5-