HomeMy WebLinkAbout01-2543 APPELLATE PROCEDURE 1931 C
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
COMMONWEALTH COURT OF PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a tree and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, ifany, and the docket entries in the following matter:
CLEONE p. KARNS
¥.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
NO. 01-2543 CIVIL TERM
2931 CD 2001
The document~ c~om~!n..g !ho. ro~..rd have been numbered from No. ! to 9!
attached hereto and
identified with '~ onmo. ^ ts a list of the documents correspondingl~numbemd' and
reasonable definiteness, inclpding with respect to each document, the
number ofpagns comprising the document.
The date on which the record has been transmitted to the Appellate Court is 1-28-02.
Cnrtis R. Long, Prothonotary
Jane H. Sparling, Dpty.
An additional co of this certificate is enclosed. Please si n and date co thereb
acknowled in recei t of this record.
Date
Signature ,e, Title
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of_ CUMBERLAND
2931 CD 2001 in the Commonwealth of Pennsylvania
to No. 01-2543 CTV]'5 Term. 19 __ is contained the following:
COPY OF COMPLETE
DOCKET ENTRY
CLEONE p. KARNS
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
SEE ATTACHED CERTIFIED DOCKET ENTRIES
Commonwealth of Pennsylvania }
County of Cumberland ss:
I. Curtis R. Lon~l · Prothonotary
of the Court of Common Pleas in and for said
County. do hereby certify that the foregoing is a
full. true and correct copy oftbe whole record of the
~e· thercitcstated wherein
one m. ~Carns
"- Plaintiff, and __
Comm. of PA.., Dept. of
~rnasportat ~on
Defendant __ ~ as th~ same remains of record
before the said Court at No 01-2543
Civil ' -- of
In TESTIMONy WHEREOF, I have hereunto set my hand and affixed the seal of said Court
this _ 28th Term, A.D. 19 .
day of January A.D.. 1~002 ,
Prothonotary
I.__ Georqe E. Hoffer
President Judge of the Ninth
Judicial District. composed of the County of Cumberland. do certify that
Curtis R. Lonq
· by whom the annexed record, certificate and
a//.~iation were made and given, and who, in his own proper handwriting, thereunto subscribed his
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of CUNBERLAND
the Commonwealth of Pennsylvania. dul--c ' · -- m
Y °mmssst°nea and qualified to nil of whose acts as such full fait h
and credit are and ought to be given as well in Courts ofjudieature as elsewhere, and that the said record.
certificate and attestation are in due form of law and made by
Commonwealth of Pennsylvania } ~
County of Cumberland ss:
I, Curtis R. Long
, Prothonotary bf the Court of Common Pleas in
and for the said County, do certify that the Honorable .George E. Hoffer, p.j.
by whom the foregoing attestation was made· and who has thereunto subscribed his name. was. at the time
of making thereof, and still is President Judge of the Court of Common Pleas. Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County. duly Commissioned and qualified: to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
2_Sth day of January A.D. 1~002.
~x~bl0 Cumberland County Prothonotary,s Office
Civil Case Inquiry pa9e
2001-02543 KARNS CLEON p (rs) PENNSYLVANIA COMMONWEALTH OF
Reference No..:
Case TYPe ..... : APPEAL - LICENSE
~u~gme~t ...... 0* SUSP Filed.
_Uage A~signed- GUIDO ~,.,~-~ - Time..~3~~ 5/01/:~L,
uleposed Desc.; =~.~u ~ Execution Date
Jury Trial .... -
............ Case Comments ............. DisDosed Date. 0/00/0n~
Higher Crt 1.: 2931 CD
Higher Crt 2.:
******************************************************************************
General Index
KARNS CLEONE p Attorney Info
300 THIRD STREET APPELLANT MANCKE JOHN B
ENOLAVILLE PA 17025
R V ~ ~N~ORTATION KABUSK GEORGE
~gNT OFFICE CENTE
r~'~I~URG PA 17104 25~6
***************************
* Date Entrie~ *************************
z - ? 5/01/~001~P~L-F~O~ ~u~P~N~iGN-O~ DRIVERS LICENSE
FIRST ENTRY
6/18/01 8:30 AM CR 5 - BY EDWARD E GUIDO J - COPIES MAILED 5~8/01
SCHEDULED FOR 6 18 01 AT 8- ---'
IN CR 5 OF THE .30 AM IS CONTI L HEARING
COURT ~ERU~D COU~ NUED TO 7 25 01
EDWARD E GUIDO J mn,~. -~.FgURTHOUSE CAR ~ ~ A~ 3:00
1~ 7/30/2001 C~=~ m3~lb~D 5/31/01 LI~ =a _ Sy THE
EAsRD UPON ?NE F~m~INGS 01 IN RE LICENSE S6~
~'D HEARZNG TNE ~F ~ACT MADE AFTE PENSION APPEL -
_WH._ICH TO FILE TESTINONy TH~_PARTIEs R REVIEw OF THE_.~IDENCE
~E COURT BRIEFS I~_SUPPu~T OF THARE GIVEN 10 ~YS ~THIN
....... EDWARD E SUIvoO J COPIE~ .,~_R~ECI.VE ~OSI?IO
11 - 18 7/30/2001 ~Da~,o~.~2L ................ - .-~*~=u 7/30/0~ NS-BY
.... ou~xmr OF PROC ........................
CARLISLE PA ON W ~ ~uO J - C DINGS HELD
...... EDNESDAY JULy UMBERLAND CO
..... r .............. 25, 2001 IN COURTDn~, ~,^CO~D-RTHOUSE _
19 - _24. ..... 12/13/2001 v~u~ OF COURT - DATE~ ........................ - .... -, ~,v. ~
~-""' BEFORE GUIDO, j _ OPINi12/13 01 - IN RE LICENsE-s
FORTH IN THE ACCO ON AN~ ORDER OF CO USPENSION APPEAL
OF HER OPE MPANYING OPINION p URT - FOR THE REASO
RATING PRIV LFFS APPEAL NS SET
~PARTMENT IR R~o~.~LEG~ IS SUSTAINED a~ .,.~Rg~-THE SUSPENSION
MAILED 12/13Z01~'~°~ - ~ THE COURT ED~'~Ai~ ~nSU~I~N OF THE
25 ~ 28 ..... COPIES
12/19/2001 NOTICE OF APPEAL TO COMMONWEALTH C6~ OM
12/21/2001 ORDEH ~;-~: .............. ~r ...... - ....
CONSiC~ ~vu~ - DATED 12 20/01 ..........
STATEM~T - COUNSEL I ................
APPELLAT OF MATTERS COMP S DIRECTED TO
MAILED E PROCEDURE 1925 B - B I~INTED O~_~N WITH RUL FILE A
35 - 89 1/15/2002 T ......................... PPEAL BY COMMONW .........
RANSCRIPT FILED - BY T~ ..... - ...................... EALTH OF PA
~ 1/23/2002 ~-~-~ ....... i_iTT_~uu~T EDWARD E GUIDO J .............
=~"~z~ ~ ORDE .........................
~E~gN ACCOMpANYiNG ¥~ ~_~_MATTER ~RE FU ATED / 2 ~ - THE
~u~a~u O~ u~uER OE D LLY SET FORTH I
~! MEMO ....... LAS .... '~ - ....
*********************_* .XSC~A~o .~_~_~3RY ...........
* *''*************~* ~*%*~{~;F~*******************
Escrow Information
PYSS10 Cumberland County Prothonotary,s Office
Civil Case Inquiry Page
2001-02543 ~ARNs CLEON p (ye) PENNSYLVANIA COMMONWEALTH OF
Reference No..:
Case T~De ..... : Filed.
~U~gmeh~ ...... APPEAL - LICENSE SUSP ''- 5/01/2.].~
.00 Time..
Uage Assigned: GUIDO EDWARD E Executign Date
Disposed Desc.:
· - Case Comments ............. ~o~a~]
............ nigher Crt I · 293~ CD
~ees & Debits Be Bal P mrs/Ad' Hl~r Crt 2]~ 20
APPEAL LIC SUSP
TAX ON APPEAL 35.00 35.00 .00
SETTLEMENT .50 .50 .00
JCP FEE 5.00 5.00 00
APPEAL 5.00 5.00 '
30.00 .00
30.00 .00
75.50 75.50 ........ ~---
*************************************************************
*******************************************************************************
· ****************End of Case Information
m TT JwE COPY FI OM FIC-CC) D
y '
IN THE coMMONWEALTH cOURT OF PENNSYLVANIA
Cleone P. Karns .
: No. 2931 C.D. 200l
¥. : SUBMITTED: April 26, 2002
Commonwealth of pennsylvania,
Department of Transportation, .
Bureau of Driver Licensing ·
BETTER, Judger'"" -,.,
BEFORE: HONORABL ""
HONORABL F. MeCLOSKEY, Senior Judge "
HONORABLE JOSEPH
OPINION NOT REPORTED.
MEMORANDUM OPINION BY FILED: ~,ucjust 12, 2002
JUDGE LEADBETTER
The Department of Transportation (Department) appeals from thc
order of the Court of Common Pleas of Cumberland County (trial court) that
reversed the one-year suspension of Cleone P. Karns' (Kams) driving privileges,
imposed pursuant to 75 Pa. C.S. § 1547C°)(1)~ for her refusal to complete a blood
alcohol breath test· The Department contends that the evidence is insufficient to
~ 75 Pa.C.S. § 15470>)(1) 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 ~esting and refuses to
do so, the testinE shall not be conducted but upon notice by the
police officer, the dcpa~haent shall suspend the operating pr/vilegc
of thc person for a per/od of 12 months.
support the trial court's finding that Karns was physically unable to complete the
test. We agree and reverse.
On March 21, 2001, Officer O'Dormell of the West Shore Regional
Police Department arrested Karns and charged her w/th driving under the influence
of alcohol. After Karns initially refused a breath test, O'Donnell appropriately
warned Kams of the consequences of refusing chemical testing under Section
1547(b)(1) of the Vehicle Code. Thereafter, Kams agreed to submit to a breath
test. The test was conducted at the booking center by Agent Carol Franks and was
videotaped. Based on the videotape, the trial court found that Karns made a good
faith effort to comply with the instructions of Agent Franks. Nevertheless, Kams
did not provide a sufficient breath sample.
Agent Franks testified that the machine was working properly but that
Kams was not making a proper seal around the mouthpiece and air was escaping
from the sides of her mouth. During the test, Agent Franks warned Kams that if
she did not provide a sufficient sample before the machine timed out, it would be
deemed a refusal. After Karns failed to complete the test, Officer O'Donnell was
summoned back to the booking center to determine if Kams should submit to a
blood test. When O'Dormell arrived, Kams was vomiting and compla/ning of chest
pain. She was transported to a hospital via ambulance, and Officer O'Donnell
treated her failure to complete the breath test as a refusal.
Thereafter, the Department notified Kams that her operating
priv/leges were suspended and Karns appealed to the Court of Common Pleas.
Following a de novo hearing, the trial court found that, while the Department
established prima facie that Karns fa/led to supply a sufficient breath sample,
Karns had proven that she was physically incapable ofperforrning the test and was
2
cause, otb- ,~-~a/ she £a~led to sustatn .... se suSPenSton under. _. motOr vehicle
knoWin~re~u~' _ ~ ~o sus~m ~c u~'~ ~-~ {o~ open, mS ~" ~ .. (3~
~r. a..~ O~ ~~ t~R~ ~ '--. 0t
~~t must p~oVC ~u~ ~cobOl; ~) ~ asked to ~ ~ rc~Sal ~ould result m.
,~ile under ~e m~'~'' sveCificall~ ~ .... ortation, Burea~
~" - to 6o so; an6 (4) was ~ ~emon v. Dep't of~an~ .o thc Dcpagmcnt
re~sea ,~ino prwilege-" - .~th. ~000). l~ r ._~
~sion other ~ ~ ~ 534, 53g ~Pa. Gm~ 'o cs~blish phyS~c~
~ver Licensing, %3 ~ ~,~ then shi~ ~o ~hc hcc~Cc r.. _ lic~cc's goo~
~ . · - burda, thc burur~, ~-~c Id. at 53g. Despite ~ ~
sustmns ~ts - ~i or ~owingl~ rc~ · . _ sufficient b~cau~ ~
- to take t~e te~ · c to supPlY ~
. ..~ _tt~t tO cO~pI~ w~- ..... v. Co~monweat"' r _ . ~n9
~a;m =" '~ - ~r se re,sa/. 5weensy _ .,.~ ~ ~o. 1980 C.D- ~' '
will consfi~te a ~* A 2fl ~(Pa. ~m~'"'" '-
Bureau of Driver Licensing, ~
Commonwealth Dep't of TranSp., Bureau of Driver
luly 3, 1002); Pappas v. (Pa. Cmwlth. 1996)- However, if a lic~see proves
Licensing, 669 g.2fl 504, 50g unable to prop~1~ complete the test.,
that to a eaiea conflifion he or she was
th~ the re~sal ~ill not eons6~te ~ouaaS for suspension una~ ~5 Pa. C.S.
Lemon %3 g.2a at 538. g ;ic see who supers koma
con6ifion t~t is not obviOUS ~6 that affec~ h~ abili~ to 9erf°~ the brea~
~ ..... .~ tha~ ~s . ~-~ ~o comP1Se a ~ ._:_~ rcins~6ng~"':
~ ~c D~~tu'~'' - --s~t but ~su~-- ~-ess~ in weW o~ ~
~ her subs~u~nt ~ ,..t n~ not be ~
~u~ prcs~ ~d, m ~Y
li~se suspension-
physic · · 09) (holding that- -. ~f D~ver Licensing) 73- C:ent sample.
al ~ncapaci~y, the ne~ ,- ~eaical eWdence is n~* --~ .~9 A.2d 656, 659-60
~ ,u Unnate, is Ob~ous) ~' ' cqu~red Where lic~see,s
In ~e
not obvious. ~sent ~e, K~s, inabili~ to COmplete ~e b~ath test Was
test or du~ng ~e test did K~s ever state she w~ feeling ill. O~cer O'Co~ell
At no ~me d~ng ~e ~en~.~nute °bse~a~on Pe~od~ P~or to ~e
~d Agent F~ bo~ tes~fied ~ey we~ in an
appe~ce ~d ~y obvious · excell~t position to Obse~e K~s,
S~s of illness, but saw none. (R. at 47a, ~la). K~s
did not info~ ~yone of her nausea or chest pain ~fil a~er she had f~led to
~sfacto~ly CO,lete ~e breath test. ~e ~ial
obviously "emotionally dis~au~ht cou~ merely states ~at ~s was
~ , ~d, as it ~s out, Physically ill." O~ viewing
oF ~e videotape discloses no OVert Si~s of emotionM dis~ss. K~s he,elf
tes~fied ~at "I St~ed getting sick in my sto~ch, ~d I thought I w~ going to
~ow up," a~er ~e O~cer told h~ the ~chine had ~med out. (R. at 76a, 77a).
~ere ~e no oven si~s on the ~deotape ~at K~s w~ so physic~ly ill or
~S~ught ~ to render h~ ~able
~ to COmplete ~e test or m~e a ~OWing or
. ~ a~CO~o/ b~*~ - ~ty CO~8~U,;..- .
' ~Y P~on pl~ ,._~' ~'~' ~ 1547~)~D
(~lating to ~ving Under
subst~ce) is ~ucst~ influen'~'e a v~ola~on of s~fion 3 73~
to submit
do so, ~e t~fing ~1 not be COnduct~ but upon notice
POlice O~cer, to ch~c~ tes~ng ~d ~ses to
the d~ent ~II SUspend ,~_ by
Of~c Pe~on for a P~od of 12 monks, mc operating Pfi~/ege
4
conscious refusal. Moreover, nothing in the record suggests that any emotional or
physical distress suffered by licensee was anything other than alcohol induced.
Incapacity resulting from intoxication will not excuse or justify a failure to
complete the test. Dep 't. of Trans., Bureau of Traffic Safety v. Potter, 545 A.2d
979, 980 (Pa. Cmwlth. 1988).
Because no obvious physical condition caused Kams' failure to
complete the test or knowingly refuse to do so, Karns could not sustain her burden
of proof without expert medical testimony. Karns failed to present such evidence
and, therefore, the trial court erred in concluding that her failure to complete the
breath test was not a refusal. Accordingly, we reverse.
BONNIE BRIGANCE LEADBETTER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cleone P. Karns :
:
v. : No. 2931 C.D. 2001
CommonwealthofPennsylvania, : ]~- ~)/-
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
AND NOW, this 12th day of August, 2002, the
order of the Court of Cornmon Pleas of Cumberland County in the above captioned
matter is hereby REVERSED.
BONNIE BRIGANCE LEADBETTER, Judge
~ from the Re~ord
AUG 1 2 200?.
m~t'Order Ex~
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CLEONE P. KARNS, : No. 718 MAL 2002
:
Petitioner :
: Petition for Allowance of Appeal from the
: Order of the Commonwealth Court
V, :
;
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
:
Respondent :
:
ORDER
PER CURIAM:
AND NOW, this 6th day of February, 2003, the Petition for Allowance of Appeal is
hereby DENIED.
TRUE & CORRECT COPY
APPELLATE CLERK
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CLEONE P. KARNS, : No. 718 MAL 2002
:
Petitioner :
· ' Petition for Allowance of Appeal from the
: Order of the Commonwealth Court
V.
.-
:
COMMONWEALTH OF PENNSYLVANIA, i
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING, :
:
Respondent :
.'
..
ORDER
PER CURIAM:
AND NOW, this 6th day of February, 2003, the Petition for Allowance of Appeal is
hereby DENIED.
TRUE & CORRECT COPY
SHIRL~ ~l:[ ~ '. ........
APPEL~'~
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cleone P. Kams
.'
V.
: No. 2931 C.D. 2001
:
Commonwealth o£ Pennsylvania, :
Department o£ Transportation, :
Bureau o£ Driver Licensing, :
Appellant :
ORDER
AND NOW, this 9th day of September, 2002, upon
consideration of appellee's application for supersedeas, the application is hereby
GRANTED pending disposition of Karns' Petition for Allowance of Appeal to the
Supreme Court of Pennsylvania.
BONNIE BRIGANCE LEADBETTER, Judge
SEP - 9 2002
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cleone P. Karns :
:
v. : No. 2931 C.D. 2001
: SUBMITTED: April 26, 2002
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTF~n
MEMORANDUM OPINION BY
JUDGELEADBETTER FILED: August 12, 2002
The Department of Transportation (Department) appeals from the
order of the Court of Common Pleas of Curabefland County (trial court) that
reversed the one-year suspension of Cleone P. Karns' (Kams) driving privileges,
imposed pursuant to 75 Pa. C.S. § 1547Co)(1)~ for her refusal to complete a blood
alcohol breath test. The Department contends that the evidence is insufficient to
~ 75 Pa.C.S. § 1547(b)(I) 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.
support the trial court's finding that Karns was physically unable to complete the
test. We agree and reverse.
On March 21, 2001, Officer O'Donnell of the West Shore Regional
Police Depm t~ent arrested Karns and charged her with driving under the influence
of alcohol. After Kams initially refused a breath test, O'Donnell appropriately
warned Karns of the consequences of refusing chemical testing under Section
1547(b)(1) of the Vehicle Code. Thereafter, Kams agreed to submit to a breath
test. The test was conducted at the booking center by Agent Carol Franks and was
videotaped. Based on the videotape, the trial court found that Kams made a good
faith effort to comply with the instructions of Agent Franks. Nevertheless, Karns
did not provide a sufficient breath sample.
Agent Franks testified that the machine was working properly but that
Kams was not making a proper seal around the mouthpiece and air was escaping
from the sides of her mouth. During the test, Agent Franks warned Karns that if
she did not provide a sufficient sample before the machine timed out, it would be
deemed a refusal. After Kams failed to complete the test, Officer O'Donnell was
summoned back to the booking center to determine if Kams should submit to a
blood test. When O'Dormell arrived, Kams was vomiting and complaining of chest
pain. She was transported to a hospital via ambulance, and Officer O'Donnell
treated her failure to complete the breath test as a refusal.
Thereafter, the Depa~iment notified Kams that her operating
privileges were suspended and Kams appealed to the Court of Common Pleas.
Following a de novo hearing, the trial court found that, while the Depmlment
established prima facie that Kams failed to supply a sufficient breath sample,
Kams had proven that she was physically incapable of performing the test and was
2
incapable of making a knowing and conscious refusal. On this basis, the trial court
sustained Kams' appeal. The Department filed the present appeal, maintaining that
because Karns did not submit expert medical testimony establishing a physical
cause, other than intoxication, for her inability to complete the test or make a
knowing refusal, she failed to sustain her burden of proof?
In order to sustain the license suspension under Section 1547, the
Department must prove that Kams (1) was arrested for operating a motor vehicle
while under the influence of alcohol; (2) was asked to submit to a chemical test; (3)
refused to do so; and (4) was specifically warned that a refusal would result in
suspension of her driving privilege. Lemon v. Dep 't of Transportation, Bureau of
Driver Licensing, 763 A.2d 534, 538 (Pa. Cmwlth. 2000). If the Department
sustains its burden, the burden then shifts to the licensee to establish physical
inability to take the test or knowingly refuse. Id. at 538. Despite a licensee's good
faith attempt to comply with the test, failure to supply a sufficient breath sample
will constitute a per se refusal. Sweeney v. Commonwealth Dep't of Transp.,
Bureau of Driver Licensing, A.2d. (Pa. Cmwlth.) (No. 1980 C.D. 1999, filed
July 3, 2002); Pappas v. Commonwealth Dep't of Transp., Bureau of Driver
Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996). However, if a licensee proves
that due to a medical condition he or she was unable to properly complete the test,
then the refusal will not constitute grounds for suspension under 75 Pa. C.S. §
1547Co)(1). Lemon 763 A.2d at 538. A licensee who suffers from a medical
condition that is not obvious and that affects her ability to perform the breath test
2 The Department also asserts that Karns' initial refusal to submit to a breath test was not
cured by her subsequent assent but unsuccessful effort to complete a breath test. This issue was
not preserved and, in any event, need not be addressed in view of our decision reinstating Karns'
license suspension.
3
must establish by competent medical evidence the presence of the medical
condition and that it rendered her physically unable to provide a sufficient sample.
Id. Cf. Carlin v. Dep 't of Trans., Bureau of Driver Licensing 739 A.2d 656, 659-60
(Pa. Cmwlth. 1999) (holding that medical evidence is not required where licensee's
physical incapacity, the need to urinate, is obvious).
In the present case, Kams' inability to complete the breath test was
not obvious. At no time during the twenty-minute observation period3 prior to the
test or during the test did Kams ever state she was feeling ill. Officer O'Connell
and Agent Frank both testified they were in an excellent position to observe Kams'
appearance and any obvious signs of illness, but saw none. (R. at 47a, 6la). Kams
did not inform anyone of her nausea or chest pain until after she had failed to
satisfactorily complete the breath test. The trial court merely states that Karns was
obviously "emotionally distraught, and, as it tums out, physically ill." Our viewing
of the videotape discloses no overt signs of emotional distress. Kams herself
testified that "I started getting sick in my stomach, and I thought I was going to
throw up," after the officer told her the machine had timed out. (R. at 76a, 77a).
There are no overt signs on the videotape .that Kams was so physically ill or
dis~raughr as to render her unable to complete the test or make a knowing or
3 The regulation at 67 Pa. Code § 77.24 states that a person must be kept under observation
by a police officer for at least twenty consecutive minutes immediately prior to administration of
the first alcohol breath test. During that time the p~rson may not drink fluids, eat, vomit or
smoke. ,gee 67 Pa. Code § 77.24(a). 75 Pa. C.S. § 1547(b)(1) pwvides:
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 end 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.
conscious refusal. Moreover, nothing in the record suggests that any emotional or
physicai d/stress suffered by licensee was anything other than alcohol induced.
Incapacity resulting from intoxication will not excuse or justify a failure to
complete the test. Dep't. of Trans., Bureau of Traffic Safety v. Potter, 545 A.2d
979, 980 (Pa. Cmwlth. 1988).
Because no obv/ous physical condition caused Karns' failure to
complete the test or knowingly refuse to do so, Karns could not sustain her burden
of proof without expert medical testimony. Karns failed to present such evidence
and, therefore, the trial court erred in concluding that her failure to complete the
breath test was not a refusal. Accordingly, we reverse.
5
IN THE coMMONWEALTH COURT OF PENNSYLVANIA
Cleone P- Kams :
: No. 2931 C.D. 2001
V. ~
Commonwealth of Pennsylvania, :
Bureau of Driver ~cem s, .
Appellant ·
2002, the
AND NOW, this ~ 2th day of nuqust,
order of the Court of Common Pleas of Cumberland County in the above captioned
matter is hereby REVERSED.
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF
DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA
BUREAU OF DRIVER LICENSING, :
Appellee :
:
v. : NO. 01-2543 CIVIL TERM
:
CLEONE P. KARNS, :
Appellant : LICENSE SUSPENSION APPEAL
TRANSCRIPT OF PROCEEDINGS
IN RE: ARGUMENT
OP¥
Proceedings held before the
HONORABLE EDWARD E. GUIDO, J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Wednesday, July 25, 2001,
in Courtroom No. 5
APPEARANCES:
TERRANCE M. EDWARDS, Esquire
Attorney for Appellee
JOHN B. MANCKE, Esquire
Attorney for Appellant
COPY
1
i (At the conclusion of the testimony, the
2 following argument occurred:)
3
THE COURT: Do you have anything else, Mr.
4 Mancke?
5 MR. MANCKE: Nothing other than judicial
6 notice that Holy Spirit Hospital is authorized to take serum
7 and blood testing, Pennsylvania Bulletin, Volume 31, No. 2,
8 January 13th, 2001, Page 191.
9 THE COURT: I will so take judicial notice
10 of that. Let me get this straight, Mr. Mancke. You're
11 conceding for purposes of this hearing that the Commonwealth
12 can use the .10 result from Holy Spirit Hospital in its case,
13 and you're saying that, because of that, this should not be
14 considered a refusal?
15 MR. MANCKE: Your Honor, the officer
16 received the test result.
17 THE COURT: Okay. But there's an argument
18 that he received it illegally; he had no right to it.
19
MR. MANCKE: There's an absolute argument
20 that he received it illegally.
21 THE COURT: So that, therefore, if he
22 received it and he did so illegally, there cannot be
23 compliance with 1547 on her part?
24
MR. MANCKE: Except that that's a
25 constitutional problem that they had in seizing the blood
2
1 un~er Commonwealth v. Shaw, and the Commonwealth would be the
2 first one to tell me that the constitutional issues have no
3 relevancy in a license suspension case.
4
THE COURT: A determination I have to make
5 is, in this case, was this lady intentionally trying to
6 defeat the breath test to cover up the fact that she was
7 under the influence of alcohol, or was she legitimately
8 trying her best and not being able to do it through a
9 combination of ignorance and medical condition? That's a
10 decision I have to make.
11
MR. MANCKE: Absolutely.
12
THE COURT: If you're Standing there telling
13 me, well, she gave blood, she wanted to give blood -- which I
14 didn't hear -- but if you're standing there telling me she
15 gave the officer the blood, they can use the blood in the
16 criminal prosecution, so be it, that.s fine, it's not fair to
17 double-punish this lady, I might be thinking to myself, maybe
18 she was really trying to give breath there and not really
19 trying to beat this. They got the blood, and everything is
20 fine. But that's not what I hear you telling me. What I
21 hear you telling me is, I got blood, but they can't use it,
22 but they should be able --
23
MR. F~NCKE: I didn't say they couldn.t use
24 it. I've already indicated that the matter is not going to
25 be contested on the criminal side. They can get the blood
3
1 if' in this case, procedurally, they didn't get the test
2 result properly when they got it. That doesn't mean they
3 can't go around and get it under the inevitable discovery
4 rule and do it properly, because I think they could. I think
5 they could issue a search warrant and get it. I think
6 Commonwealth v. Jolly suggests that.
7
THE COURT: I guess what I'm saying is
8 you're confusing my meager abilities here. Are you telling
9 me that this lady is not contesting the criminal part, and
10 you're not worried about any of that, and that she tried her
11 best to give -- to comply with this?
12
MR. MANCKE: She has applied for the ARD.
13 That's the avenue that we're going to go in this. In this
14 instance, I think without her being told an explanation about
15 the time-out -- and if you notice, the booking officer
16 doesn't say when this thing concludes on the videotape that
17 this is all Over. The suggestion is that there,s something
18 else that's 9oin9 to happen here. And even at -- I think it
19 was at the 35-minute mark there was a suggestion to see about
20 blood. That was the booking officer that was talking about
21 the blood thing. The officer knew that my client was going
22 to the hospital. Now, he says he didn't know that it was
23 Holy Spirit, but he knew that she was being transported. He
24 knew that the husband called and said that a blood test was
25 taken, and he got the test result. I just think it should
4
1 ha~e been by a search warrant rather than by a subpoena.
2 THE COURT: Mr. Edwards, do you agree that
3 if I find as a fact that that lady was using her best efforts
4 to comply with the breath test and then got physically ill
5 and was, therefore, unable to comply that it's --
6 MR. EDWARDS: That's not sufficient, Your
7 Honor.
8 THE COURT: What's not sufficient?
9 MR. EDWARDS: She has to present competent
10 medical evidence to establish her inability to blow, and I
11 can cite cases to you that --
12 THE COURT: You're telling me that I can't
13 use my eyes?
14 MR. EDWARDS: That's correct, Your Honor.
15 THE COURT: You're telling me that? You're
16 telling me that I can't look at that videotape and find as a
17 fact that she was using her best efforts to try to get it
18 done?
19 MR. EDWARDS: Yes, Your Honor. If I might
20 cite some cases.
21 THE COURT: Cite some cases, sir.
22 MR. EDWARDS: Your Honor, I'll start with --
23 these are all Commonwealth Court cases. It may sound unfair,
24 but this is the law.
25 THE COURT: Okay. Let's do it this way so
5
1 that both sides have a chance to respond. I'm going to find
2 as a fact, as I look at that tape, that she tried her very
3 best to comply with giving breath, and she was not trying to
4 defeat the breath test. I'm finding that as a fact.
5
I'm finding, as she's sitting there and I'm
6 seeing her, she appeared, to my eyes, to be nauseous and to
7 be not feeling well as she.s attempting to give that test,
8 yet she said nothing.
9
I'm finding as a fact that the first test
10 stopped at 22:38; and that sometime within a seven-minute
11 period she became violently ill, she began throwing up, she
12 had chest pains and had to be transported to the hospital.
13
That's the facts that I'm finding. I will
14 let you submit to me a brief that tells me, on that basis,
15 that that is a valid refusal on her part. Mr. Mancke, I'll
16 allow you to brief that particular issue.
17
MR. MANCKE: That's fine. Thank you, Your
18 Honor.
19
THE COURT: Okay. Any other facts you want
20 to argue?
21
MR. EDWARDS: Your Honor, only -- I was
22 going to recall Officer O'Donnell to establish the time
23 between when all of this occurred and when the blood was
24 drawn. I believe Your Honor already has that information, so
25 I don't see the need to recall him for that purpose, that
6
1 there was about a two-and-a-half-hour delay.
2
THE COURT: The blood was drawn, sure.
3
MR. EDWARDS: That,s all. I was goinH to
4 recall him for that, but I believe that's in the record, Your
5 Honor, so there won't be a need to do that.
6
THE COURT: I'm very interested in seeing
7 the cases that say that I need to have Mr. Mancke present a
8 doctor to me to tell me that this lady was physically
9 incapable of --
10
MR. EDWARDs: Yes, Your Honor. I can cite
11 five of them right now, but, if you like, I'll put it in
12 writinH'
13
THE COURT: I'll enter the following Order:
14 "AND NOW, this 25th day of July, 2001, based upon
15 the findings of fact made after review of the evidence and
16 hearing the testimony, the parties are given 10 days within
17 which to file briefs in support of their respective
18 positions..,
19
(The proceedings were concluded.)
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I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
Susan Rice Stoner
Official Stenographer
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed
to be filed.
Date E~ward E. Guido, j.
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