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HomeMy WebLinkAbout05-5331 v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ~NO::15- 533/ ~ ~ CORNELIA M. TAMININI : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL AND NOW, comes Cornelia M. Taminini, by and through her attorneys, Mancke, Wagner and Spreha, and files the following license suspension appeal: I. Your Petitioner, Cornelia M. Taminini, is an adult individual and a licensed driver within the Commonwealth of Pennsylvania with a residence address of 328 Southview Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address of P.O. Box 68693, Harrisburg, Pennsylvania. 3. On or about September 14, 2005, Petitioner received a notice of license suspension, a copy of which is attached hereto, incorporated herein by reference and marked as Exhibit A, for allegedly refusing to submit to a chemical test authorized by ~1547(b)(3) of the of the Motor Vehicle Code. 4. The suspension is inappropriate, improper, and illegal and should be declared invalid for the following reasons: A. Petitioner did not refuse to submit to a breath test; B. The breath testing device was not properly certified or not properly calibrated; C. The breath testing device did not operate appropriately; and D. The instructions provided by the booking agent was improper and contrary to the regulations and manufacturer's regulations regarding the operation of the breathalyzer. 5. As a result of the aforementioned, the Petitioner believes and therefore avers that the suspension is inappropriate. WHEREFORE, Petitioner prays this Court to grant the relief as requested. Respectfully submitted, Mancke, Wagner & Spreha Date: /b/It)/o6" I I //" /,::-t~ <BY::=C P. Richard Wagner, Esquire I.D. #23103 2233 North Front Street Harrisburg, P A 17110 (717) 234-7051 Attorneys for Petitioner VERIFICATION I verify that the statements made in the foregoing 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. "Gmk ~ 9/3C/OS- DATE: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 14, 2005 CORNELIA M TAMANINI 328 SOUTHVIEW DR WID # 052506187601199 001 PROCESSING DATE 09/07/2005 DRIVER LICENSE * 21857646 DATE OF BIRTH 12/26/1968 MECHANICSBURG PA 17055 LICENSE IN BUREAU Dear MS. TAMANINI: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 15478111 of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 08/15/2005: · Your driving privilege is SUSPENDED fo~ a pe~iod of 18 MONTHCS) effective 02/08/2006 at 12:01 a.m. This suspension is in addition to any other suspensions al- ready on your record. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) ""ithin 30 days of the mail date, SEPTEMBER 14, 2005, of this letter. If YOU file an appeal in the County Cou~t, the Cou~t will give YOU a time- stamped ce~tified copy of the appeal. In order for your appeal to be valid, YOU must send this time-stamped certi- fied 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. -11- 052506187601199 Sincerely, lJrer0rJ Janet L. Dolan, Acting Director Bureau of Driver Licensing IN STATE OUT-OF-STATE WEB SITE ADDRESS INFORMATION 7:00 a.m. to 9:00 P.m. 1-800-932-4600 TOD IN STATE 717-391-6190 TOD OUT-OF-STATE www.dmv.state.pa.us 1-800-228-0676 717-391-6191 c-J ......> ~ ~~O c.=) ::-~ U\ (po, ...,.. C:.'-1 \, ~ '-0 !"-1 c) t ~ C') ~ --j .~ ~ (r, ~ 0 1'.' ......... ~. ~ ~ 'C - ~ _.- ~ ~ ~ ~ " ~ . .......... .....-.- "' ~~ ('~:-J: ~ U-:'J ~ I t , RECEIVED OCT 142005 ft"'l v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: tJ5 533/ 4~'/ CORNELIA M. T AMININI : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING ORDER AND NOW, this /7 J'Vlday of 0 ~ ,2005, upon Petition of CORNELIA Mo T AMININI, a hearing is set on the License Suspension Appeal for the (; ~ay of ro, 20<i at t:j,'{),) o'clock A..om. in Courtroom NOo~fthe Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of said hearing. Pursuant to ~155O(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended B pending a final determination in this matter. Distribution: 1. Prothonotary's Office v6ffice of Chief Counsel, Penn DOT ~ 1101 S. Front Street, Harrisburg, PA 17104-2516 .AI. Richard Wagner, Esquire 2233 North Front Street, Harrisburg, PA 17110 C Q :GI!lf! () 1'10 S U7 " .~", .5 i.",,; G' " jO CORNELIA TAMININI : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF MOTOR VEHICLES : NO. 2005 - 5331 CIVIL TER.M ORDER OF COURT AND NOW, this 14TH day of DECEMBER, 2005, the hearing in the above captioned matter scheduled for JANUARY 6, 2006, at 9:00 a.m. has been changed to 2:30 D.m. on the same day. Edward E. Guido, J. YRichard Wagner, Esquire .vI 101 South Front Street Harrisburg, Pao 17104-2516 )il'rge Kabusk, Esquire / Riverfront Office Center 1101. South Front Street _'j7 'Y, I:~'bmg, p, 1710~ r~rP l/ \~ \~ ..'0_) ;../ (" f"'; , . ,it ;:': CORNELIA Mo TAMININI, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Vo 2005-5331 COMMONWEALTH OF PENNSYL VANIA, : 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 Ho Kabusk, Esquire, respectfully represents as follows: I. The Department mailed to Cornelia M. Tamanini, OoL.N. 21857646, a notice dated September 14, 2005, informing the petitioner that as a result of the petitioner's violation of Section 1547 of the Vehicle Code, relating to Chemical Test Refusal, on August 15,2005, the petitioner's driving privilege was being suspended for a period of 18 months as mandated by Section 1547 of the Vehicle Code. 2. The petitioner 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 January 6,2006, at 2:30 p.m. in Courtroom Number 5 of the Court of Common Pleas of Cumberland County, Cumberland County Courthouse, Carlisle, Pennsylvania. 40 The refusal was reported to the Department of Transportation by Officer Edward Curtis of the Lower Allen Township Police Department. 5. Booking Agent Rodney Gzell was the Booking Agent. 6. Booking Agent Rodney Gzell is a necessary witness for the Department's case. 7. The undersigned spoke to Booking Agent Gzell on January 5,2005, regarding the hearing and Booking Agent Gzell was prepared to appear and testify at the hearing scheduled for January 6,2006. 8. The undersigned was informed in the morning of January 6,2006, by Julie Kurtz of the District Attorney's Office that Booking Agent Gzell, was in the hospital for chest pains and is unavailable to testify on January 6,2006. 90 The undersigned counsel respectfully requests a continuance and that the case be rescheduled for hearing. 10. The undersigned counsel contacted P. Richard Wagner, Esquire, attorney for the petitioner, and Mr. Wagner does not 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 and rescheduled. Respectfully submitted, )t~~c Georg . Kabusk, sqUIre Assistant Counsel CORNELIA M. T AMININI, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Vo 2005-5331 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: Po Richard Wagner, Esquire 2233 North Front Street Harrisburg, PA 17110 ~.~ ~r(~ George H. t.abusk Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: January6,2006 C,) --n :~j -n r".) CORNELIA M. TAMININI, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. 2005-5331 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this {, fv' day of ~~ ,2006, upon consideration of the Department's Motion to Continue, the Motion is hereby granted, and the Matter is Continued and rescheduled for hearing on the ~ 7 ~ day of F~" 0 ()rJ;(, at ,:6IJ Porn. in Courtroom Noo 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT J. DISjJUBUTION: ....&rge H. Kabusk, Esquire, PennDOT, Riverfront Office Center-3rd Floor, 1101 South Front /" Street, Harrisburg, PA 17104-2516 vi' 4 Ric~a er, Esquire, 2233 North Front Street, Harrisburg, P A 17110 c,..-~ __J () .O~ O\/O~\ " j, i \ \ ;11 Hd g- t:'Jr SaOl le" ,. ,.. Al:J':',j}.,:i VS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 53'31 NOo 2005 2~~1 CIVIL TERM CORNELIA TAMININI, Petitioner COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU: OF MOTOR VEHICLES, Respondent LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 27th day of February, 2006, after hearing, we make the following findings of fact: 1. The agreement of the parties with regard to stipulated facts is incorporated herein. 2. Appellant Cornelia Taminini did not properly follow the instructions of the Booking Agento 30 The Booking Officer advised her approximately one half dozen times that she was stopping and starting before the machine registered the first breath sampleo 4. After the first breath sample was registered, the Booking Center Agent had to advise Appellant at least three times that she was not properly following directions because she was starting and stoppingo 50 The Booking Agent said stop just before the breath ticket printed outo 6. It was clear to this Court upon viewing the tape that the Booking Agent's observations were correct and that the Appellant was in fact starting and stopping and consciously attempting not to give a valid breath testo Edward Eo Guido, Jo Po Richard Wagner, Esquire For Petitioner George H. Kabusk, Esquire For Respondent :mlc F) -~{. 0r~ ./h~ .JtIf .;'~ --: \:'.:: VS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ';'3.~1 NOo 2005-~1 CIVIL TERM CORNELIA TAMININI, Petitioner COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU: OF MOTOR VEHICLES, Respondent LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 27th day of February, 2006, the Court having given the parties guidance on the facts, they are directed to file memoranda of law in support of their respective positions , 2006. Edward Eo Guido, J. \ Po Richard Wagner, Esquire For Petitioner 3-J--6(P ~ ..~ y1$ George Ho Kabusk, Esquire For Respondent :mlc i' CORNELIA M. TAMININI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF : NO. 2005 - 5331 CIVIL TERM PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 19TH day of APRIL, 2006, after review of the memoranda provided by the parties, we are satisfied that evidence clearly showed that the appellant provided insufficient breath samples. Therefore, her appeal is DISMISSED and the action of the Department in suspending her operating privileges is sustainedol Edward E. Guido, J. v/ P. Richard Wagner, Esquire 2233 North Front Street Harrisburg, Pa. 17110 :sld ~orge H. Kabusk, Esquire Riverfront Office Center 1101 South Front Street Harrisburg, Pa. 17104-2516 I See Spora v. Commonwealth Dept. Transportation, 817 A.2d 1236 (Pa. Commonwealth 2003). , .:'\ \.<' >" \'~ - v. : IN TIIE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 05-5331 CORNELIAMo TAMININI, : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NOTICE OF APPEAL NOTICE IS HEREBY GIVEN that the Plaintiff, CORNELIA M. TAMININI, by and through her attorneys, Mancke, Wagner & Spreha, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 19th day of April, 2006. This Order has been entered in the docket as evidenced by the attached copy of the docket entrieso Respectfully submitted, By P. . er, Esquire LD.#23103 2233 North Front Street Harrisburg, PA I7110 (717) 234-7051 Date: o:ffl/ s / t7 {. f I Attorneys for Appellant - CORNELIA M. T AMININI, Vo : IN TIffi COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 05-533] : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING ORDER FOR TRANSCRIPT A NOTICE OF APPEAL, having been filed in this matter, the official court reporter is hereby ordered to produce, certiry and ti]e the transcript in this matter in conformity with Rule ] 922 of the Pennsylvania Rules of Appellate Procedure. Respectfully submitted, Mancke, Wagner & Spreha Po Ric agner, Esquire . . #23]03 2233 North Front Street Harrisburg, P A 17] 10 (7] 7) 234-705] Date: ~J/f/IJ~ f I Attorneys for Appellant CORNELIAM. TAMININI, : IN TIIE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vo : NO: 05-5331 : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING CERTIFICATE OF SERVICE I, Debra K. Spinner, Secretary in the law firm of Mancke, Wagner & Spreha, do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Appellate Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: The Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 George Kabusk, Esquire Office of Chief Counsel Department of Transportation 1101 South Front Street Harrisburg, PA 17104 Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 DATE: 1/8/ f) r;, By~~q( ~~ Debra K. Spinner, See tary MANCKE, WAGNER & SPREHA 2233 North Front Street Harrisburg, P A 1711 0 P. Richard Wagner, Esquire Attorney for Appellant 16325505152006 PYS510 2005-05331 Cumberland County Prothonotary's Office Civil Case Print Page 1 . TAMININI CORNELIA M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Case Type 0 0 . . . : Judgment. 0 0... Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- APPEAL - LICENSE .00 GUIDO EDWARD E SUSP Filed. 0 0 . . . 0 . : Time 0 0" 0 0...: Execution Date Jury Trial. . . 0 Disposed Dateo Higher Crt 1.: Higher Crt 2 0 : 10/12/2005 10:09 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info TAMININI CORNELIA M 328 SOUTHVIEW DRIVE MECHANICSBURG PA PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION POBOX 68693 HARRISBURG PA APPELLANT WAGNER PRICHARD APPELLEE ******************************************************************************** * Date Entries * ******************************************************************************** 10/12/2005 10/18/2005 12/15/2005 1/06/2006 1/06/2006 3/02/2006 3/02/2006 4/20/2006 _ _ - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- OZDfR - DATED 10/17/05 - IN RE LICENSE SUSPENSION APPEAL - HEARING 1 6 06 9 AM CR 5 - NOTICE OF SAID HEARING SHALL BE GIVEN BY P T TIONER'S COUNSEL TO THE DEPARTMENT OF TRANSPORTATION AT LEAST 60 DAYS PRIOR TO THE DATE OF SAID HEARING - PURSUANT TO 1550(B) OF THE PA MOTOR VEHICLE CODE PETITIONER'S APPEAL SHALL ACT AS AN AUTOMATIC SUPERSEDEAS AND PETITIONER'S OPERATING PRIVILEGES SHALL NOT BE SUSPENDED PENDING A FINAL DETERMINATION IN THIS MATTER - BY EDWARD E GUIDO J - COPIES MAILED 10/18/05 ------------------------------------------------------------------- ORDER OF COURT - DATED 12/14/05 - THE HEARING IN THE ABOVE CAPTIONED MATTER SCHEDULEb FOR 1/6/06 AT 9:00 AM HAS BEEN CHANGED TO 2:30 PM ON THE SAME DAY - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- MOTION FOR CONTINUANCE - BY GEORGE H KUBUSK ESQ ------------------------------------------------------------------- ORDER - DATED 1/6/06 - IN RE DEPT'S MOTION TO CONTINUE - THE MOTION IS HEREBY GRANTED AND THE MATTER IS CONTINUED AND RESCHEDULED FOR HEARING ON 2/27/06 AT 1:00 PM IN CR 5 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/9/06 ------------------------------------------------------------------- ORDER OF COURT - DATED 2/27/06 - IN RE LICENSE SUSPENSION APPEAL - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 2/27/06 - THE COURT HAVING GIVEN THE PARTIES GUIDANCE ON THE FACTS THEY ARE DIRECTED TO F~LE MEMORANDA OF LAW IN SUPPORT OF THEIR RESPECTIVE POSITIONS BY 3/13/06 - BY THE COURT EDWARD E GUIDO J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 04-19-06 - IN RE: REVIEW OF MEMORANDA PROVIDED BY PARTIES, WE ARE SATISFIED THAT EVIDENCE CLEARLY SHOWED THAT THE APPELLANT PROVIDED INSUFFICIENT BREATH SAMPLES. THEREFORE HER APPEAL IS DISMISSED AND THE ACTION OF THE DEPT IN SUSPENDING HER OPERATING PRIVILEGES IS SUSTAINED - BY EDWARD E GUIDO J - COPIED AND MAILED 04-21-06 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adi End Bal * *****************************************~******~******************************* APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT 35000 .50 5000 35.00 .50 5.00 .00 .00 .00 16325505152006 PYS510 2005-05331 Cumberland County Prothonotary's Office Civil Case Print . ~ TAMININI CORNELIA M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Case Type.. 0 . . : Judgment.. 0..0 Judge Assigned: Disposed Desc. : ------------ Case APPEAL - LICENSE .00 GUIDO EDWARD E SUSP Filed.o.....o: Time... 0 0.00.: Execution Date Jury Trial 0 0 . 0 Disposed Date. Higher Crt 1.: Higher Crt 2.: .00 .00 Comments AUTOMATION FEE JCP FEE 5.00 5000 10.00 10.00 ------------------------ 55.50 55.50 000 Page 2 10/12/2005 10:09 0/00/0000 0/00/0000 ******************************************************************************** * End of Case Information * ******************************************************************************** TRlIE t,OPV FROM RECORD t" Tost;n:my whereof, I t.ere unto sat my ha.'1d i'm1J Ilia ~a1 of sa.ld Court at Carlisle, Pi. la~' "l1'f~~ ~' (') ,..., ~ = ~ ,= "" "'" 1,"- :Jl: ::t:l ;r.>- n1 ::0 0 -< r- --:Of" , ~ CO :0 'i' % .'0) :';l~f; ~ "" :;:~:- 'l -:,t" tsdC'5 ......... l-.l ~ _.. ':'? (..:)("11 V , .,:::. s;! ~ =< 0 <Xl ~ 0 '-< ~ ~ D () e.. ~ - J- 1 -t!) ~ Commonwealth Court of Pennsylvania May 19, 2006 RE: Taminini v. DOT No.: 951 CD 2006 Agency Docket Number: 05-5331 Filed Date: May 18, 2006 Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. R.A. P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name George H. Kabusk, Esq. Paul Richard Wagner, Esq. Timothy P. Wile, Esq. Party Name Bureau of Driver Licensing Cornelia M. Taminini Bureau of Driver Licensing Party Type Appellee Appellant Appellee o c. s: -orx mrr" ~:;J~ ~L r::l. -;.",. :;=~:: >. ,;;. (~:-= ~ ......:> c::> c;:) c::r> ::E :x> -< N N ~ ~-n n,p -orn -"1 \:;J :~~~ (~?c5 ""~rn ~:::; )> ~ > ::r: U'l U1 CORNELIA M. T AMININI V. COMMONWEALTH OF PA DEPT. OF TRANSPORTATION BUREAU OF DRIVER LICENSING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005 - 5331 CIVIL TERM : CIVIL ACTION - LA W ORDER OF COURT AND NOW, this 26TH day ofMA Y, 2006, Plaintiffs counsel is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of today' s date in accordance with Rule of Appellate Procedure 1925(b). hChard Wagn"" Esquire 2233 North Front Street Harrisburg, Pa. 17110 :sld ~ . ~D fJ+j~ By the Court, ~uido' 1. >- If) :>-, 0:: M F-- .~( .....,.. ...::... I- cy) ::) ~~ "'l-~ :::) ...~r.- 0-0 0... u.... ...._ '.1. _J..," t.......... .-..'" " 'is:..:: 1..0 """--"u N ] wee ....J l.U >- , U- < ; fE ~ ~.;?~ u. u::> ::5 c:::> 0 = 0 C'I ......... .~. ~ ' , CORNELIA M. TAMININI : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Petitioner, v. : NO: 05-5331 : LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Respondent. CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL In accordance with Appellate Rule 1925(b), the hereinafter provisions is the Concise Statement of Matter Complained of on Appeal. The Appellant/Plaintiff respectfully suggests the lower court erred as follows: A. Where the breath test equipment and/or operator is responsible for an invalid test, an incomplete test, or a lack of a sufficient breath test result, should a license suspension nonetheless be upheld? B. Where the testing device, properly calibrated and certified, prints out an intoxilyzer ticket that reads "invalid test," (which, according to the manufacturer's specification means the test button was pushed at the wrong time, the evidence card was pulled from the printer, or the instruments pump inaccurately, purged the sample chamber) should a license suspension be upheld? C. Where the intoxilyzer ticket printed out from an otherwise properly certified and calibrated intoxilyzer unit does not read "deficient sample," (which means the subject did not provide an adequate breath sample within three (3) minutes) can the same be considered a refusal? It is respectfully contended that the lower court erred in its decision in relation to the above three issues. Respectfully submitted, Mancke, Wagner & Spreha I.D. #23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for AppellantJPlaintiff Date: ~/7/Pt- / / -2- CERTIFICATE OF SERVICE I, Debra K. Spinner, secretary in the law firm of Mancke, Wagner & Spreha, do hereby certify that I am this day serving a copy of the CONCISE STATEMENT OF ISSUES COMPLAINED OF on the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Appellate Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with fIrst class postage, prepaid, and addressed as follows: George Kabusk, Esquire Office of Chief Counsel Department of Transportation 1101 South Front Street Harrisburg, P A 17104 By /Ilk 0/ ~~ Debra K. Spinner, 'ecretary Mancke, Wagner & Spreha 2233 North Front Street Harrisburg, P A 17110 P. Richard Wagner, Esquire Attorney for Petitioner / Appellant Date: ~j7/tJ? r I (:-) r-:l = 0 r~' c.~~:) '.. -n - :;:'::""' c.o -I c:::: ::r:-n ,11;:::::: I m y -1 ~~'j. :p~\5 <l~. ~>I-I .' () D ri1 \.0 .-.1 <::) ?O w .< CORNELIA M. TAMININI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 05-5331 LICENSE SUSPENSION APPEAL COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF OF DRIVER LICENSING TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, February 27, 2006, in Courtroom Number 3. ORIGINAL APPEARANCES: P. Richard Wagner, Esquire For the Petitioner George Kabusk, Esquire For the Department of Transportation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR COMMONWEALTH Officer Edward Curtis Rodney Gsell INDEX TO WITNESS DIRECT 5 7 CROSS 13 REDIRECT RECROSS 27, 32 30 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TO EXHIBITS FOR COMMONWEALTH IDENTIFIED ADMITTED Ex. No. 1 - packet 5 5 Ex. No. 2 - certificates 8 9 Ex. No. 3 - printout ticket 11 14 Ex. No. 4 - videotape 13 13 FOR PETITIONER Ex. No. 1 - Intoxi1yzer manual IDENTIFIED 20 ADMITTED 20 3 1 2 3 4 5 6 7 Monday, February 27, 200E Carlisle, Pennsylvania (The following proceedings were held at 1:00 p.m.:) THE COURT: Good afternoon. MR. WAGNER: Good afternoon, Judge. MR. KABUSK: Good afternoon, Your Honor. THE COURT: This is Miss Taminini v. 8 Commonwealth of Pennsylvania Department of Transportation. 9 Parties ready to proceed? 10 11 12 MR. KABUSK: Yes, Your Honor. MR. WAGNER: We are Your Honor. MR. KABUSK: By official notice dated 13 September 14th, 2005, the Department notified Cornelia M. 14 Taminini operator's number 21857646 that as a result of her 15 violation of Section 1547 of the Vehicle Code relating to 16 chemical test refusal on 8-15-2005 her driving privilege was 17 being suspended for a period of 18 months. 18 I would direct the Court's attention to 19 Section 1547 of the Vehicle Code under B, suspension for 20 refusal (1) (ii) relating to the period of suspension that 21 states for a period of 18 months if any of the following 22 apply: 23 A. The person's operating privileges have 24 been previously previously been suspended under this 25 subsection. I 4 1 I point that out to the Court because this is 2 -- matter is an l8-month suspension. And then the 3 Department's packet of documents I would refer the Court to 4 Subsection 2 and 3 as well as the driving record which would 5 indicate that the Petitioner has had a previous suspension 6 under Section 1547 of the Vehicle Code. Therefore, the 7 suspension that was issued is 18 months. I move for the 8 admission of what's been marked Commonwealth's Exhibit No. 9 1. 10 11 12 13 14 15 Curtis. 16 --------- 17 OFFICER EDWARD CURTIS, 18 having been duly sworn, testified as follows: 19 DIRECT EXAMINATION 20 BY MR. KABUSK: 21 Q Officer Curtis, please state your name and 22 spell your last name for the record. 23 A Officer Edward Curtis, C-U-R-T-I-S. 24 Q Where are you employed? 25 A Lower Allen Township Police Department. MR. WAGNER: No objection. THE COURT: Any objection? MR. WAGNER: No. THE COURT: It's admitted. MR. KABUSK: The Department now calls Officer 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q During the course of your official duties have you had occasion to investigate an alleged incident of DUl at or about August 15th, 2005? A Yes. Q Would you please tell the Court about that incident? A What happened? I just -- MR. WAGNER: Your Honor, if it pleases the Court, we have no argument with this part. We will stipulate, A, she was placed under arrest; B, he had reasonable basis to conclude she was driving under the influence; and, C, that his request for -- to take a test was reasonable. THE COURT: Okay. Good. Do you need to establish anything else from this witness based upon that stipulation? MR. KABUSK: No, Your Honor. I would prefer, though, that I could be able to present brief background because the issue will be did she refuse. THE COURT: Well, how is his -- did he playa part in the refusal? MR. KABUSK: No, Your Honor. THE COURT: Okay. I don't need to see that part then. MR. KABUSK: Thank you. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good enough, Officer. You may step down. MR. KABUSK: The department now calls Bookinc Agent Rodney Gsell. RODNEY GSELL, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Please state your name and spell your last name for the record. A Rodney Gsell, G-S-E-L-L. Q Where are you employed? A I work for Cumberland County in the Records Department now. Q Where were you employed on August 15th, 2005? A I was employed with the Cumberland County District Attorney's Office in the Booking Center. Q What were your duties then? A I was -- did DUI processing and anybody they arrested by local departments. Q During the course of your official duties, had you had occasion to be involved in the investigation of an alleged incident of DUI on or about August 15th, 2005? A Yes. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And what was your involvement in that? A I was the breath test operator. Q Are you a certified breath test operator? A Yes. Q How many breath tests have you administered? A Approximate about 600. Q Six hundred. What breath test instrument were you using to administer the chemical test? A The Intoxilyzer 5000 EN. Q At the time of the incident at issue, was the breath test instrument certified as accurate? A Yes, it was. Q At the time of the incident, was the breath test instrument -- excuse me -- calibrated properly? A Yes. Q Do you have certifications regarding the certification of accuracy and the certification of calibration? A Yes. MR. KABUSK: What's been marked as Commonwealth's Exhibit No.2 is those calibration -- the certificates, Your Honor. I move for the admission of what's been marked as Commonwealth's Exhibit No.2. THE COURT: MR. WAGNER: Any objection, Mr. Wagner? None. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Admitted. BY MR. KABUSK: Q At the time of the incident at issue, was the breath test instrument that was in service for use in this incident functioning properly? A Yes. Q Did you run the instrument through the self-checks to determine if it was functioning properly? A Yes. Q Did you -- did the Petitioner inform you of any physical or medical conditions that may have prevented her from properly performing the test? A No. Q Did the Petitioner exhibit any symptoms that would indicate the presence of a physical or medical condition that would have affected her ability to perform the test? A No. Q Would you please explain what is required for a valid breath test? A Valid breath test consists of two valid breath samples. Q Did the Petitioner provide two consecutive adequate breath samples? A No. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What instructions did you give the Petitioner regarding this test? A We have a sheet printed out, standard instructions we give every single DUI processing we have. And it instructs the person how to take a normal breath in, make a tight seal around the mouthpiece, and give one steady breath until instructed to stop. Q And if a person makes a tight seal and provides a steady breath, what happens? A You receive a steady out tone by doing it and you get a valid sample. Q Does the person have to do that a second time? A Yes. Q Was the videotape made contemporaneously with the requested breath test? A Yes. MR. KABUSK: Your Honor, I have the videotape of the incident. It's approximately 10 minutes. I would request to show that to the Court now. THE COURT: Okay. Mr. Wagner, I'm sorry. Can your agreement include the 0' Connell warnings have been properly given, or is that something we should cover? MR. WAGNER: Stipulate to that. THE COURT: Summarize what the issue is then. 10 1 MR. WAGNER: The issue is going to be Exhibit 2 No.3, the printout, how that reads with the manufacturer's 3 regulations and what factually is alleged to have occurred. 4 THE COURT: Okay. Facts are alleged to have 5 occurred with regard to what? 6 MR. WAGNER: The failure to provide adequate 7 breath. 8 THE COURT: Okay. And can I see that on the 9 tape? Is that what you're telling me, Mr. Kabusk? 10 MR. KABUSK: I believe that's what his issue 11 is. And I think the issue is going to come down to did she 12 refuse and/or in the sense did she provide two adequate 13 breath samples. That's my perspective. 14 MR. WAGNER: If I may elaborate for a second 15 because this was part of the suppression hearing which got 16 resolved. And this gentleman was forthright at that time. 17 The test is going to show invalid sample. The definitions 18 of invalid have nothing to do with deficient sample. 19 So we contend irrespective of what you see 20 here if it's working properly and prints a ticket out that 21 says invalid sample versus deficient sample, the real issue 22 is what does a valid versus deficient versus invalid sample 23 all those definitions mean because we stipulated the 24 instrument was working properly and properly calibrated. So 25 factually what you see here we don't think -- I mean, you 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can watch it. THE COURT: You've -- if you were trying to confuse me, you did a good job. If you weren't, we can go through this againo Give me very briefly what the issue is. MR. WAGNER: The issue is this instrument calibrated properly -- THE COURT: I got all that. The instrument is working. You're saying she refused? MR. WAGNER: No. You'll see that she's blowing. THE COURT: Okay. MR. WAGNER: In here the instrument printed out invalid sample. That's what's printed. THE COURT: What's in here? MR. WAGNER: I'm sorry. Exhibit No.3 that's going to be introduced from the Commonwealth -- THE COURT: MR. WAGNER: THE COURT: MR. WAGNER: It's not introduced -- -- will say invalid sample. Okay. Invalid sample per definitions of this instrument have to do with things other than the subject's deficient. If the argument is she did not provide sufficient sample, it would by its own definition print out deficient sample not invalid test. THE COURT: I understand your part of it. 12 1 And your position with regard to this is? 2 MR. KABUSK: My position is the Department 3 can prove a refusal in one of two ways, by the testimony of 4 the breath test operator or by the printout. I'm going to 5 admit the printout because Mr. Wagner will bring that up. 6 I'm going to attempt to prove that there was 7 a refusal based upon the breath test operator's testimony -- 8 based upon his testimony which I believe will show that she 9 was not complying with his instructions, the operability of 10 the instrument is irrelevant. And I will cite to you 11 several cases for that. 12 THE COURT: All right. I think I understand. 13 Do I need to see the tape then? 14 MR. KABUSK: I think the pictures -- 15 THE COURT: If you're relying on his 16 testimony -- 17 MR. KABUSK: Well, I think a picture is worth 18 a thousand words. 19 THE COURT: Got it. Then -- and what exhibit 20 number is this tape? 21 MR. KABUSK: This will be Exhibit No.4. 22 THE COURT: And I presume you do not object 23 to its admission. 24 MR. WAGNER: No, I do not. 25 THE COURT: So Exhibit No. 4 is admitted. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KABUSK: Exhibit No. 3 is the printout. THE COURT: You stipulate -- you agree to its admission also? MR. WAGNER: I do. (The video was played.) DIRECT EXAMINATION, (cont'd.) BY MR. KABUSK: Q Officer Gsell, were you present when that videotape was made? A Yes, I was. Q Did that videotape accurately portray the events at the time they occurred? A Yes. Q On that tape, were you -- could you just summarize very briefly what happened when you administered the test? A As I read the instructions numerous times on both samples, subject just kept starting and stopping, would not provide one steady breath. It would cause me to change the mouthpiece and just doing it over and over again during both samples. THE COURT: Why did you have to change the mouthpiece? 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: The recommend -- that way there is residual left in the mouthpiece with a fresh mouthpiece. BY MR. KABUSK: Q How do you know she was starting and stopping? A The tone. If you are starting and stopping -- start stopping will not stay steady like when you're providing a normal sample. Q When the instrument printed out, what did the printout say? A It printed out invalid test. Q What does invalid test signify? A It did not have both samples, so it printed out it was not a valid test. Q Did you end the test early? A No. Q Did you pull the ticket early? A No. Q What would you do when you would get an invalid test if the person was making a tight seal and providing a strong steady breath? A I would have changed to another instrument and re-administer the breath test. Q Why did you not do that in this case? A Because she was not following instructions 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and I did not want to take a chance of putting the instrument out of service. Q How was she not following your instructions? A She would not provide one steady breath during her sample. Q And you've administered how many breath tests? A Approximately 600. Q And what do you observe when a person complies with your instructions? A Just the one -- two valid -- two steady breaths for two valid samples and prints out the results on the ticket. Q And what was she doing during the test? A Starting and stopping during both samples. Q And the machine would -- instrument wouldn't provide a valid reading on that, would it? A It would accept -- it eventually accepted the first reading. At the end, she provided enough of a sample to provide the first valid sample. The second one it never it never accepted a sample. Q Did she ever provide two consecutive adequate breath samples? A No. MR. KABUSK: No further questions. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. WAGNER: Mr. Wagner? Thank you. CROSS EXAMINATION BY MR. WAGNER: Q Is it your testimony, sir, that there was at least one adequate breath test that was given? A Breath sample. Q Breath sample? A Yes. Q Where was that printed? A What happens if you don't get a valid test, it don't print out the sample and the other one. It just prints out invalid. Q Is it your testimony that her conduct created -- her conduct was -- was a -- was the supply of inadequate amount of breath? A Yes. Q And on this date in question, this machine was both calibrated and was also certified; is that correct? A Yes. Q And there are certain manufacturer guidelines concerning the administration of the breath test and also definitions concerning the printout, are there not? A Yes. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You brought those with you, did you not? A Yes. MR. WAGNER: permission of the Court may I retrieve his manual? BY MR. WAGNER: Q Is that okay if I get that, Rodney? A I have no problem. Q Is this your operator's manual for the Intoxilyzer 5000 that was used with Miss Taminini? A Yes. Q And you had that manual at a previous proceeding in front of Judge Hess, did you not? A I did not have the manual. You had a manual. Q I had the manual; is that correct? A Yes. Q And if you looked at my manual, they happenec to have the same; is that correct? A That's correct. Q Let's, if we will, can we look at the definition of deficient sample, please? A Okay. Q Would you read that paragraph slowly into the record of now, first of all, when it says deficient sample. This is something that prints out on the ticket; is that correct? 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, that is one thing that can print out on the ticket. Q Would you read that says if a -- if deficient sample is questionable? A It says the subject did not supply an adequate breath sample within 3 minutes. Q The subject did not supply an adequate breath sample within three minutes 0 You just told us that the concern with Miss Taminini was she did not provide an adequate breath sample; is that not correct? A She supplied her first sample was adequate. The second sample was not. Q But she did not supply adequate breath; is that correct? A Yes. Q Now does Exhibit No.3, which is the test ticket of Miss Taminini, show anywhere deficient sample on it? A No. Q If you read farther on definition of deficient sample, if a person does not supply adequate breath, what else is to be on that ticket? A Okay. I got to check another page because that's not -- Q Let me ask this. From your experience, 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should there be an asterisk that appears? A I've seen so many -- I can't honestly answer that for you. Q Should there be an asterisk on there -- THE COURT: What is the manual you're referring to? MR. WAGNER: I'm sorry. THE COURT: May we not want to make that manual part of the record instead of pieces of it? MR. WAGNER: I can do that, Your Honor. THE COURT: All right. MR. WAGNER: I'll just show you this in -- THE COURT: If you're going to mark it as an exhibit and make it part of the exhibit, then you don't have to show him anything. Is it the manufacturer manual of this particular machine? MR. WAGNER: Yes. THE COURT: Okay. Any objection to that being marked and admitted? MR. KABUSK: THE COURT: MR. WAGNER: No objection. Admitted as Petitioner's 1. Then just briefly then I'll cover it this way. BY MR. WAGNER: Q Are there definitions in the manual 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerning deficient sample having to do with persons who supply inadequate breath samples? A Yes. Q Are there provisions in there concerning the definition of invalid test if invalid test shows up on a ticket? A Yes. Q Invalid test by definition when it shows up on a ticket as did Miss Taminini's are all circumstances surrounding machine malfunction or operator error, are they not? A Yes, in the one definition. Q So when we see invalid test, that talks about operator error and machine malfunction that has nothing to do with subject, does it? A It doesn't say that no. THE COURT: It doesn't say what? I'm not sure I understood the answer. What -- did you understand the question? What do you mean? THE WITNESS: He's saying that -- what he's trying to say that if it prints out invalid test it has nothing to do with providing an inadequate sample. THE COURT: And is that your understanding of in your experience? THE WITNESS: In my experience, I never -- 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: In other words, are you saying to me, sir, that this printout came because you made an error or the machine was not properly operating? THE WITNESS: No, sir. I know it was properly operating, and I know I didn't do anything in that instruction says that I did. THE COURT: MR. WAGNER: All right. Understood. Then I have to elaborate on that. BY MR. WAGNER: Q You told us the machine is -- that it's properly calibrated and working properly? A That's correct. Q But when it prints out invalid sample, that means under the manufacturer's regulations that either operator error or machine malfunction occurred, does it not, according to the manufacturer's regulations? THE COURT: Why would the manufacturer have regulations? I thought the legislature adopts regulations? Is it a manufacturer's instruction book? May I see it? MR. WAGNER: Sure. Operator's manual. THE COURT: Operator's manual. MR. WAGNER: I used the word regulation. It's manual. THE COURT: The instructions. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WAGNER: Instructions. THE COURT: Understood. BY MR. WAGNER: Q Now if a person supplies a deficient sample when the machine's operating correctly, it shows, does it not, deficient sample on a breath ticket? A Yes. I've had a couple print up like that. Q So that if THE COURT: Excuse me. You had a couple print up like that? THE WITNESS: With deficient sample? THE COURT: Every time? THE WITNESS: No, not every time. No, sir. THE COURT: What do you get printed up sometimes? THE WITNESS: It depend -- I mean, it varies depending on the case. I mean, there's cases where if you don't provide anything, it just says invalid test. I mean, there's so many different printouts these intoxilyzers print out that I can't -- I can't sit here and say hundred percent sure what it's going to say. I mean, I never know what it's going to say until it prints out itself. THE COURT: Okay. Understood. BY MR. WAGNER: Q There's also a definition, for example, of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 invalid sample. That's why you use a different mouthpiece? A I just use it because they told me I had to. THE COURT: Who's they? THE WITNESS: The D.A.'s Office. BY MR. WAGNER: Q Whenever a breath test ticket prints invalid test, the operator's manual indicates, does it not, that you are to then administer another series of tests, does it not? A No. I don't remember -- I don't recall seeing that in there. Q Did any breath test ticket or Intoxilyzer ticket for Miss Taminini ever print out deficient sample? A No. The only ticket we have is the one you have. Q And we do know that at least one sufficient was obtained from Miss Taminini; is that sample was correct? A Yes. Q And what your testimony is even though you have one sufficient sample, that prints out nowhere? A Correct. Q And at the very end at the 12:46:03 mark, it appears as though you took ahold of the breath device, pulled it out of her mouth, and said stop. Is that what you did? 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I did. THE COURT: And why was that? THE WITNESS: That I'm not sure, sir. I don't know if it already -- I'm not sure if it -- if I was to change a mouthpiece or not. I don't recall. BY MR. WAGNER: Q Didn't you say something to the effect, Stop. We got one. Or we have a sample, or the machine started to print something? A I did not say we had a sample or stop. We have one. I did say stop. Q You told her to stop? A Yes. Q Because you thought you had a second sufficient sample, didn't you? A I can't hundred percent sure say because of that. But I did tell her to say stop, yes. Q Because you thought that was enough and you had a second sufficient sample, did you not? That's why you told her to stop? A That I can't guarantee. Now, I'll admit to saying stop. But I don't know -- at this time, I don't know why I told her to stop. Q Do you believe after you've looked at that tape that when you told her to stop that there had been a 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 second sufficient sample provided? A No. Q Why did you tell her to stop? A Like I said, I can't answer because I don't know for sure. Q But you in fact told her to stop? A Yes. THE COURT: Well -- but I'm not sure then what's going on here. If you told her to stop and you didn't have a sufficient sample, why didn't you ask her to try again? THE WITNESS: As soon as I told her to stop, the instrument started beeping and printed out the ticket. THE COURT: MR. WAGNER: THE COURT: Okay. May I ask one? Yeah. Sure. BY MR. WAGNER: Q Did you expect to see readings when the ticket was being printed? A Like I said, I don't know what it's going to print out until it prints out. I mean, I knew we had one valid breath sample. But when it stopped, no. I mean, if it's an invalid test, most time it does not print out a sample at the top of it. Q I understand what you're telling us after 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's printed out. But you told her to stop, and the printing began. You can hear in the tape. You had an expectation of seeing the normal breath test readings on the ticket with the readings on it, correct? A I don't know what I expected to see. I'm not going to sit here and make something up. MR. WAGNER: I understand. I appreciate that. Thank you. REDIRECT EXAMINATION BY MR. KABUSK: Q Officer Gsell, you were asked about the significance of invalid test. Do you recall what the manual says regarding invalid test? A Not without looking at the manual I don't. Q May I show you what's been marked -- would you turn to page 44, please? A Okay. Q Is that under the malfunction and display error messages section? A I have invalid test. The definition of invalid test, yes. Q And what does the definition of invalid test state there? A It says the start button was pushed at the 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong time, the evidence card was pulled from the printer, or the instrument's pump inadequately purged the sample chamber. THE COURT: Whoa. I can't understand. Slow down. THE WITNESS: I'm sorry. THE COURT: Was the instrument what? THE WITNESS: The instrument pump inadequately purged the sample chamber. The instrument cancels this test, prints out invalid test if the evidence card was not pulled from the printer and prepares itself to begin another test. BY MR. KABUSK: Q Then what does it say? Does it say anything further in that section? A Then it goes on to say when the display reads either ready to start or CMI Intoxilyzer Alcohol Analyzer, push button and continue the second test. Q Does it say anything about putting the instrument -- would you continue on? A Make sure the test button is pushed only at proper time and the evidence card remains in the card slot until the instrument releases it. If the instrument again displays invalid test following the purge operation, turn the instrument off and consult repair technician. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Does it say anything there about instrument malfunction? A No. Q Does it say anything in there about insufficient breath? A No. Q So you cannot conclude that it was malfunctioning, can you? A No. Q And you did testify the instrument was properly functioning, correct? A Yes. Q And was she following your instructions? A No. Q How was she not following your instructions? A By not providing one steady sample. She kept starting and stopping continuously. Q Now at the end when you said stop, do you was that near the end of the cycle for the instrument? A Yes. Q Could it have been you telling her to stop because it timed out or was about to time out? A It could have been. I can't say for sure. Q Have you had experience of anyone throwing the instrument out of service? 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q How can it be thrown out of service? A With the starting and stopping, it can throw in with an 02 deviation which is the biggest thing with starting and stopping. The deviation -- sample deviation will be too big; and it will place itself out of service. Q And is that by starting and stopping? A Yes. Q Why did you not give her another test? A Because I didn't want the take the chance of placing the instrument out of service. Q Had she been following your directions what would have been your normal procedure if you would have had a printout with invalid test? A I would have provided -- I would have provided her with a second chance to take another breath test. MR. KABUSK: THE COURT: No further questions. Mr. Wagner. RECROSS EXAMINATION BY MR. WAGNER: Q Is it your testimony that you've had experience with persons that do not provide adequate breath sample by starting and stopping during the blowing process? 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q And it's your testimony that with those people there is a breath test ticket printed and it shows readings greater than 02. That's how the deviation occurs? A If they provided a first sample, yes. Q Okay. And in this case, there was a first sample? A Yes. Q And in this case, your testimony is she started and stopped and there was an inadequate second? A Yes. Q But in the other cases you've told us about if there's a first sufficient sample, then the person starts and stops during the second, you get a printout and it will usually have a deviation reading of greater than 02? A If they provided enough of a sample for the instrument to accept it, yes. Q Finally, definition of deficient sample says, does it not, subject did not provide an adequate breath sample within 3 minutes? A Yes, it does. Q Does it go on to say when that happens the instrument will display the words, subject test and then three what I call number signs, correct? A Yes. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And it also displays an asterisk before the word subject test, does it not? A Yes. Q And in this case, when as you said she supplied inadequate breath sample, does Commonwealth's Exhibit No. 3 have the word deficient sample asterisk subject test 3 number signs? A No. MR. WAGNER: Thank you. No further questions. THE COURT: Thank you, sir. Anything else from the Commonwealth? REDIRECT EXAMINATION BY MR. KABUSK: Q Do you have any idea why it printed out invalid test? A My opinion was just because we had one valid samples and it takes two valid samples for a test. So it would have been invalid test because we only had one of the two samples. I mean, that's the only thing I could think of why it printed out invalid test because it wasn't a valid test. Q You don't actually know that for sure why it printed out invalid test? 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A No. I can't say for sure. Q But do you know for sure whether she was following your directions? A I know for sure that she wasn't following my directions, yes. THE COURT: Mr. Wagner? MR. WAGNER: Nothing further. THE COURT: Thank you, sir. You may step down. Commonwealth have anything else? MR. KABUSK: That's the Department's case, Your Honor. MR. WAGNER: No, Your Honor, other than the operator's manual. I will make copies, and put it in as an exhibit. THE COURT: I tell you what I'm going to do. Because I'm not going to shoot from the hip on this, I will make findings of fact. And then I'll give you an opportunity to file briefs based upon the findings of fact. MR. WAGNER: Okay. THE COURT: Okay. Anybody want to say anything before I make my findings of fact, or are you satisfied on the fact you can prepare your briefs? MR. WAGNER: It's up to the Court. Would the Court like a brief closing? THE COURT: I don't particularly need a brief 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 closing, but I'm not going to stop you from giving one if you want. MR. WAGNER: Just very briefly the issue boils down to Commonwealth's Exhibit No.3. THE COURT: MR. WAGNER: THE COURT: Okay. And that's it. If that's what it boils down to, then my findings of fact will give direction in that regard as far as your brief goes. Okay. Did you want to say something? MR. KABUSK: No, Your Honor. THE COURT: AND NOW, this 27th day of February, 2006, after hearing and the parties having agreed that the machine was properly operating, properly calibrated, properly tested prior to -- strike that. AND NOW, this 27th day of February, 2006, after hearing, we make the following findings of fact: 1. The agreement of the parties are incorporated -- the agreement of the parties with regard to stipulated facts is incorporated herein. 2. Appellant Cornelia Taminini did not properly follow the instructions of the Booking Agent. 3. Before a valid -- before a -- strike that. At least -- strike that. The Booking Officer advised her approximately one half dozen times that she was stopping 34 1 and starting so as not to give a sufficient breath sample 2 before -- at least one half dozen times before the machine 3 registered the first breath sample. 44. After the first breath sample was 5 registered, the Booking Center Agent had to advise Appellant 6 at least three times that she was not properly following 7 directions because she was starting and stopping. 8 5. The Booking Agent said stop just before 9 the breath ticket printed out. 10 6. It was clear to this Court upon viewing 11 the tape that the booking center -- that the Booking Agent's 12 observations were correct and that the Appellant was in fact 13 starting and stopping and consciously attempting not to give 14 a valid breath test. 15 I believe that covers it. Did I miss 16 anything, Mr. Wagner? 17 MR. WAGNER: Except that the finding of fact 18 concerning the ticket says invalid test. 19 THE COURT: The exhibits are admitted. Those 20 are the stipulations that I incorporated. I'd rather go 21 into those details right now. In other words, what I want 22 to make clear is I think that I find as a fact that she 23 clearly did not cooperate and clearly intentionally did not 24 cooperate in bits and pieces. 25 And the Booking Center Agent had to tell her 35 1 on numerous occasions you're not doing it right. She wasn't 2 doing it right. There was -- the machine did stop its 3 beeping the first time indicating it had enough. The second 4 time, she wasn't cooperating. And he did say stop right 5 before the machine timed out. 6 I have no idea. I can't find as a fact why 7 he said stop because he doesn't know why he said stop. 8 Those are the facts. They're a little complicated. It's 9 clear she wasn't cooperating. It's clear the machine says 10 invalid test. What that means under the law you guys are 11 going to have to tell me. Okay. So you understand the 12 facts where I'm coming from on those, Mr. Wagner? 13 MR. WAGNER: I understand. 14 THE COURT: Mr. Kabusk? 15 MR. KABUSK: Yes. 16 MR. WAGNER: Would it be sufficient if we 17 just add to our brief the operator's manual or just the 18 sections that are relevant? 19 THE COURT: No. I want to see -- if you can 20 agree on the sections that are relevant, that's fine. 21 Otherwise, I'd like -- I'd hate to have bits and pieces. 22 MR. WAGNER: I'll make a copy and attach and 23 submit it. 24 THE COURT: I'd like to read for myself and 25 see what you're coming up with on the law. How much time 36 1 are you going to need? 2 MR. WAGNER: Can we have two weeks because I 3 have a big one -- another brief due Monday that's rather 4 large. 5 THE COURT: Sure. How are we going to do 6 this? Whose brief is going to be first or both at the same 7 time? 8 MR. KABUSK: Both at the same time. 9 THE COURT: AND NOW, this 27th day of 10 February, 2006, the Court having given the parties guidance 11 on the facts, they are directed to file memoranda of law in 12 support of their respective positions by March 13, 2006. 13 --------- 14 (The proceedings concluded.) 15 --------- 16 17 18 19 20 21 22 23 24 25 37 CERTIFICATION 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. The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ~~~~ c Date 38 '""fiJno I II :21 Hd 8- r:nr 900l I UV' ", . , ,', ' . ::JHl ~o ^d\iil....:'i,~(,jrU\.,:c~d;..t ...1 3~)HjO{J311:J . CORNELIA M. TAMININI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING : NO. 2005 - 5331 CIVIL TERM CIVIL ACTION - LAW IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., July I {( ,2006 Petitioner has appealed our order of April 19, 2006 which dismissed her appeal from the Department's suspension of her operating privileges pursuant to Section 1547 of the Vehicle Code(75 Pa. C.S.A. S 1547). In effect, her position on appeal is that we erred in finding that she refused to submit to the requested breath test. On August IS, 2005 petitioner was arrested for driving under the influence by Officer Edward Curtis of the Lower Allen Township Police Department. She was transported to the Cumberland County Booking Center where she was asked to submit to a breath test. Because the booking agent concluded that she did not supply a sufficient breath sample, he deemed her conduct to be a refusal. We 'held an evidentiary hearing in connection with petitioner's appeal on February 27,2006. At that hearing petitioner contended that the breath test ticket proved that she did not give a deficient sample. She pointed out that if she had not provided a sufficient breath sample, the ticket would have read "deficient" rather than "invalid test", as it did in this case.l Petitioner's position is based on the instruction manual for the I See Commonwealth Exhibit 3. .. -- NO. 2005 - 5331 CIVIL TERM Intoxilyzer 5000.2 She argued that according to the instruction manual "invalid test" could mean only one of three things: I) the start test button was pushed at the wrong time; 2) the evidence card was pulled from the printer; or 3) the instrument's pwnp inadequately purged the sample chamber. 3 The Commonwealth presented the testimony of booking agent Rodney Gsell. Agent Gsell testified that the petitioner did not follow his instructions with regard to providing "one steady breath". Therefore, she did not provide sufficient breath for a valid test. Furthermore, he testified that he has performed over 600 tests on the Intoxilyzer 5000. He knew very well how to operate the machine. He did not push the start button at the wrong time; nor did he pun the evidence card from the printer to cause the "invalid test" print out. Regardless of the reason for the print out, he was satisfied that petitioner did not give a sufficient breath sample. We believed his testimony. Furthermore, we were able to observe the petitioner's actions on the videotape entered into evidence by the Commonwealth.4 It was clear to us that she was making a conscious effort to not supply a sufficient breath sample. Despite Agent Gsell's repeated instructions to the contrary, she constantly started and stopped blowing into the machine. The law applicable to this case is well established. As the Commonwealth Court has stated: In order to sustain a license suspension under the Code, the Department must establish that the licensee (1) was arrested for driving under the influence (DUI) based on reasonable grounds that he was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to submit to the requested chemical test and (4), was warned that refusal would result in a license suspension. 75 Pa. C.S. S 1547 (a); 2 See Petitioner's Exhihit 1. 3 See Petitioner's Exhibit I, p. 25. 4 Commonwealth Exhibit 4. 2 . . NO. 2005 - 5331 CIVIL TERM Spera v. Commonwealth Dept. of Transportation, 817 A.2d 1236, 1239 (Pa. Commonwealth 2003). The Spera Court went on to say: Failure to submit a sufficient breath sample, whether or not a good faith effort was made to do so, constitutes a refusal per se to take the test. ... If a licensee does not exert a total conscious effort to supply a sufficient breath sample, he will be deemed to have refused the test. 817 A.2d at 1240 (citations omitted) (emphasis added). The only one of the above elements in dispute in the instant case was whether petitioner refused to submit to the requested chemical testing. Based upon the facts as we found them to be, we were satisfied that she did refuse. Furthermore, the reason for the "invalid test" printout is irrelevant to our finding. Based upon the testimony of agent Gsell as well as our observations of her actions on the videotape, we were satisfied that she did not "exert a total conscious effort to supply a sufficient breath sample". Spera, supra. To the contrary, we found as a fact that she intentionally attemp~upply an insufficient sample. 7~~~ DATE Edward E. Guido, 1. .A. Richard Wagner, Esquire 2233 North Front Street Harrisburg, Pa. 17110 fieorge H. Kabusk, Esquire Riverfront Office Center 1101 South Front Street Harrisburg, Pa. 17104-2516 ~ ~ ~\) ~\ () :sld 3 , riof' pO' 1"0 fPP jP I . [)\o (' pf ~ ~~ I'll \<0 ~.? o t"l' 0.5- j33 I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cornelia M. Taminini, Appellant v. No. 951 C.D. 2006 Submitted: October 13, 2006 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: December 27,2006 Cornelia M. Taminini (Taminini) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) which dismissed her appeal and sustained the action of the Department of Transportation, Bureau of Driver Licensing (Department) in suspending her operating privileges pursuant to Section 1547(b)(1) of the Vehicle Code.l We affirm. 1 Section 154 7(b)(1) ofthe Vehicle Code provides in pertinent part as follows; If any person placed under arrest for a violation of section 3802 (relating to driving under the influence of alcohol or a 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 as follows: *** (ii) For a period of 18 months if any of the following apply: (Footnote continued on next page...) On August 14, 2005, Taminini was arrested by Officer Edward Curtis (Officer Curtis) of the Lower Allen Township Police Department for driving under the influence. Officer Curtis transported Taminini to the Cumberland County Booking Center where she was asked to submit to a breath test. The breath test requires that two breath samples be given. During the breath test, Taminini was able to supply a sufficient amount of breath for the first sample but after the second sample was given, a ticket printed out "invalid test". The booking agent determined that Taminini was unable to supply a sufficient breath sample and deemed this a refusal. On September 14, 2005, the Department notified Taminini that her operating privileges would be suspended for a period of 18 months, effective February 8, 2006, due to her refusal to submit to chemical testing on August 15, 2005. On October 12, 2005, Taminini appealed the suspension to the trial court. The trial court held a de novo hearing on February 27, 2006. Taminini stipulated that she had been placed under arrest, that Officer Curtis had reasonable grounds to arrest her for driving under the influence and that it was reasonable for him to request that she submit to chemical testing. The Department presented the testimony of Rodney Gsell (Gsell), previously employed as a booking agent with the District Attorney's office in (continued... ) (A) The person's operating privileges have previously been suspended under this subsection. 77 Pa. C.S. S1547(b)(1). 2 Cumberland County. Gsell testified that he was a certified breath test operator, that he had administered approximately six hundred breath tests while employed as a booking agent and that he had administered Taminini's breath test on August 15, 2005. He further testified that he was using the "Intoxilyzer 5000 EN" that day, that it was functioning properly, that he had completed the instrument's "self- checks" and that the Intoxilyzer was certified as accurate and calibrated properly. Gsell stated that Taminini did not inform him of any medical problems that would have prevented her from performing an adequate breath test. Gsell testified that in order to perform a valid breath test, Tarninini needed to give two adequate breath samples without a waiting period in between. Gsell further testified that Taminini would not follow his instructions and continued to stop and start her breaths. Gsell stated that Taminini was unable to provide two consecutive adequate breath samples.2 Counsel for Taminini argued that the printout from the breath test did not support a finding that Taminini refused to complete the test. Specifically, the ticket indicated that Taminini had an "invalid test" not a "deficient test", and that an "invalid test" does not constitute a per se refusal to complete the breath test, as a "deficient test" does. On April 21, 2006, the trial court dismissed Tarninini' s statutory appeal. The trial court stated in pertinent part as follows: Agent Gsell testified that the petitioner did not follow his instructions with regard to providing "one steady breath". Therefore, she did not provide sufficient breath for a valid test. Furthermore, he testified that he has 2 The videotape of Taminini's breath test is part of the record and consistent with Gsell's testimony. 3 l_ _ performed over 600 tests on the Intoxilyzer 5000. He knew very well how to operate the machine. He did not push the start button at the wrong time; nor did he pull the evidence card from the printer to cause the "invalid test" print out. Regardless of the reason for the printout, he was satisfied that petitioner did not give a sufficient breath sample. We believe his testimony. Furthermore, we were able to observe the petitioner's actions on the videotape entered into evidence by the commonwealth. It was clear to us that she was making a conscious effort not to supply a sufficient breath sample. Despite Agent Gsell's repeated instructions to the contrary, she constantly started and stopped blowing into the machine. Trial Court Opinion, July 18, 2006, at 2. Taminini now appeals to our Court.3 On appeal, Taminini contends that the trial court erred in sustaining the suspension of her driving privileges due to the fact that the breath test equipment and/or operator of such equipment was responsible for the invalid, incomplete, or lack of a sufficient breath test result. In Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996), our court determined that a refusal due to insufficient breath samples may be established by the Department in two ways. The first is through the testimony of the person who administered the breath test, who would need to testify that the licensee did not provide a sufficient sample 3 Our review of a license suspension appeal is limited to determining whether the trial court's decision is supported by substantial evidence, an error oflaw was committed, or the trial court abused its discretion. Postgate v. Department of Transportation, Bureau of Driver Licensing, 781 A.2d 276 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 689, 796 A.2d 320 (2002). Whether a licensee has refused to submit to chemical testing is a question of law, subject to plenary review. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d 655 (1999). 4 during his or her test. The second is through the presentation of the printout form from a properly calibrated breathalyzer indicating a "deficient sample".4 In the present controversy, the Department presented the testimony of Gsell, the person who administered the breath test. Gsell testified that Taminini did not provide a sufficient breath sample during her test. Gsell further testified that Taminini did not follow his instructions, did not provide one steady breath and instead continued to stop and start her breaths. Our law is well established that the failure of a licensee to provide a sufficient breath sample, whether the effort was in good faith or not, constitutes a refusal per se to take the breath test unless it can be established that the licensee has a medical condition that prevents him or her from doing so. Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685 (Pa. Cmwlth. 2002). If a licensee fails to "exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test." Pappas; (quoting Appeal of Budd, 442 A.2d 404,406 (Pa. Cmwlth. 1982)). In Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236 (Pa. Cmwlth. 2003), our Court determined that the police officer's testimony that the licensee failed to supply adequate breath samples due to the fact that "(1) he did not blow properly into the machine and (2), he did not follow directions as to how to perform the test," was sufficient to support the officers finding of a refusal. Id. at 1241. Our court further found that the police officer's testimony was sufficient and that the Department did not need 4 The Department does not need to establish that the breathalyzer was in working order at the time of the test where other evidence is sufficient to establish that the licensee refused to submit to the test. Postgate; Pappas. 5 to submit the results that were generated from the breathalyzer machine in order to support his finding of a refusa1. Id. As Gsell testified that Taminini failed to supply a sufficient breath sample, there was substantial evidence to conclude that Taminini refused to submit to the breath test. Because Gsell's testimony is sufficient to support the finding of a refusal, we need not address whether the printed results from the Intoxilizer also support a refusa1. Accordingly, we affirm the decision of the trial court. JI 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cornelia M. Taminini, Appellant v. No. 951 C.D. 2006 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 27th day of December I 2006 the order of the Court of Common Pleas of Cumberland County in the above- captioned matter is affirmed. DEe 2 7 2006 and 0rcIIr Ed .....,~ t7::J (~) '~-:'} ;,'"'\ -/ 1 ~ jn_;.; l.'J ~-.-" \...e, - ...,:: ["\) -.0 '-J '-< .. {J5- :)33/ ~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cornelia M. Taminini, Appellant v. No. 951 C.D. 2006 Submitted: October 13,2006 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: December 27,2006 Cornelia M. Taminini (Taminini) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) which dismissed her appeal and sustained the action of the Department of Transportation, Bureau of Driver Licensing (Department) in suspending her operating privileges pursuant to Section 1547 (b )( 1) of the Vehicle Code. I We affirm. I Section 1547(b)(1) of the Vehicle Code provides in pertinent part as follows: If any person placed under arrest for a violation of section 3802 (relating to driving under the influence of alcohol or a 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 as follows: *** (ii) For a period of 18 months if any of the following apply: (Footnote continued on next page...) On August 14, 2005, Taminini was arrested by Officer Edward Curtis (Officer Curtis) of the Lower Allen Township Police Department for driving under the influence. Officer Curtis transported Taminini to the Cumberland County Booking Center where she was asked to submit to a breath test. The breath test requires that two breath samples be given. During the breath test, Taminini was able to supply a sufficient amount of breath for the first sample but after the second sample was given, a ticket printed out "invalid test". The booking agent determined that Taminini was unable to supply a sufficient breath sample and deemed this a refusal. On September 14, 2005, the Department notified Taminini that her operating privileges would be suspended for a period of 18 months, effective February 8, 2006, due to her refusal to submit to chemical testing on August 15, 2005. On October 12, 2005, Taminini appealed the suspension to the trial court. The trial court held a de novo hearing on February 27, 2006. Taminini stipulated that she had been placed under arrest, that Officer Curtis had reasonable grounds to arrest her for driving under the influence and that it was reasonable for him to request that she submit to chemical testing. The Department presented the testimony of Rodney Gsell (Gsell), previously employed as a booking agent with the District Attorney's office in (continued...) (A) The person's operating privileges have previously been suspended under this subsection. 77 Pa. C.S. S1547(b)(1). 2 J ~ Cumberland County. Gsell testified that he was a certified breath test operator, that he had administered approximately six hundred breath tests while employed as a booking agent and that he had administered Taminini's breath test on August IS, 2005. He further testified that he was using the "Intoxilyzer 5000 EN" that day, that it was functioning properly, that he had completed the instrument's "self- checks" and that the Intoxilyzer was certified as accurate and calibrated properly. Gsell stated that Taminini did not inform him of any medical problems that would have prevented her from performing an adequate breath test. Gsell testified that in order to perform a valid breath test, Taminini needed to give two adequate breath samples without a waiting period in between. Gsell further testified that Taminini would not follow his instructions and continued to stop and start her breaths. Gsell stated that Taminini was unable to provide two consecutive adequate breath samples.2 Counsel for Taminini argued that the printout from the breath test did not support a finding that Taminini refused to complete the test. Specifically, the ticket indicated that Taminini had an "invalid test" not a "deficient test", and that an "invalid test" does not constitute a per se refusal to complete the breath test, as a "deficient test" does. On April 21, 2006, the trial court dismissed Taminini' s statutory appeal. The trial court stated in pertinent part as follows: Agent Gsell testified that the petitioner did not follow his instructions with regard to providing "one steady breath". Therefore, she did not provide sufficient breath for a valid test. Furthermore, he testified that he has 2 The videotape of Taminini' s breath test is part of the record and consistent with Gsell's testimony. 3 performed over 600 tests on the Intoxilyzer 5000. He knew very well how to operate the machine. He did not push the start button at the wrong time; nor did he pull the evidence card from the printer to cause the "invalid test" print out. Regardless of the reason for the printout, he was satisfied that petitioner did not give a sufficient breath sample. We believe his testimony. Furthermore, we were able to observe the petitioner's actions on the videotape entered into evidence by the commonwealth. It was clear to us that she was making a conscious effort not to supply a sufficient breath sample. Despite Agent Gsell's repeated instructions to the contrary, she constantly started and stopped blowing into the machine. Trial Court Opinion, July 18,2006, at 2. Taminini now appeals to our Court.3 On appeal, Taminini contends that the trial court erred in sustaining the suspension of her driving privileges due to the fact that the breath test equipment and/or operator of such equipment was responsible for the invalid, incomplete, or lack of a sufficient breath test result. In Pappas v. Department of Transportation. Bureau of Driver Licensing, 669 A.2d 504 CPa. Cmwlth. 1996), our court determined that a refusal due to insufficient breath samples may be established by the Department in two ways. The first is through the testimony of the person who administered the breath test, who would need to testify that the licensee did not provide a sufficient sample 3 Our review of a license suspension appeal is limited to determining whether the trial court's decision is supported by substantial evidence, an error of law was committed, or the trial court abused its discretion. Postgate v. Department of Transportation, Bureau of Driver Licensing, 781 A.2d.276 (pa. Cmwlth. 2001), appeal denied, 568 Pa. 689, 796 A.2d 320 (2002). Whether a licensee has refused to submit to chemical testing is a question of law, subject to plenary review. Todd v. Department of Transportation. Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d 655 (1999). 4 , , during his or her test. The second is through the presentation of the printout form from a properly calibrated breathalyzer indicating a "deficient sample".4 In the present controversy, the Department presented the testimony of Gsell, the person who administered the breath test. Gsell testified that Taminini did not provide a sufficient breath sample during her test. Gsell further testified that Taminini did not follow his instructions, did not provide one steady breath and instead continued to stop and start her breaths. Our law is well established that the failure of a licensee to provide a sufficient breath sample, whether the effort was in good faith or not, constitutes a refusal per se to take the breath test unless it can be established that the licensee has a medical condition that prevents him or her from doing so. Sweeney v. Department of Transportation. Bureau of Driver Licensing, 804 A.2d 685 (Pa. Cmwlth. 2002). If a licensee fails to "exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test." Pappas; (quoting Appeal of Budd, 442 A.2d 404,406 (Pa. Cmwlth. 1982)). In Spera v. Department of Transportation. Bureau of Driver Licensing, 817 A.2d 1236 (Pa. Cmwlth. 2003), our Court determined that the police officer's testimony that the licensee failed to supply adequate breath samples due to the fact that "(1) he did not blow properly into the machine and (2), he did not follow directions as to how to perform the test," was sufficient to support the officers finding of a refusal. Id. at 1241. Our court further found that the police officer's testimony was sufficient and that the Department did not need 4 The Department does not need to establish that the breathalyzer was in working order at the time of the test where other evidence is sufficient to establish that the licensee refused to submit to the test. Postgate; Pappas. 5 to submit the results that were generated from the breathalyzer machine in order to support his finding of a refusal. Id. As Gsell testified that Taminini failed to supply a sufficient breath sample, there was substantial evidence to conclude that Taminini refused to submit to the breath test. Because Gsell's testimony is sufficient to support the fmding of a refusal, we need not address whether the printed results from the Intoxilizer also support a refusal. Accordingly, we affirm the decision of the trial court. 6 I , 05-:53:3 I IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cornelia M. Taminini, Appellant v. No. 951 C.D. 2006 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 27th day of December , 2006 the order of the Court of Common Pleas of Cumberland County in the above- captioned matter is affirmed. ~ \~ ~~~i ~~~~ ~~ fatE ;-'u.J uJ . .... ~ 5 t..-"') tn N ~ ~- 0... ton I Cc: .....,:;;: ",,- - .- = = ("-ol -~..... .....:..- .--.., --' (,) File Copy /' Commonwealth Court of Pennsylvania Michael Krimmel Deputy Prothonotary/ OUef Oerk February 26, 2007 Irvis Office Building, Room 624 Harrisb\1l'l!. P A 17120 717-255-1650 Certificate of Remittal/Remand of Record TO: RE: Taminini v. DOT NO.951 CD 2006 Trial Court/Agency Dkt. Number: 05-5331 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Trial Court Record Date of Remand of Record: 2/26/2007 Filed Date July 25, 2006 Description 1 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. ~ Signature Date Printed Name ~ ::3 ::; ~; ~ ~ 0~e ....t""1i~l \ -i''1 \_, 01;~~ ~i~ ""'C '2(') :z; .~;) f\\ rv :::.\ .' J"'" (..1'1 ~ (J\ ~