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Home My WebLink About94-03424 vs. J UN 2. 1994<..0. I IN THE COURT OF COMMON PLEAS OF \ I CUMBERLAND COUNTY, PENNSYLVANIA : NO. '14. .3LIJ tj Ct'v,' I Tu rn I I I I RAYMOND L. SMITH, JR. Appellant COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee ORDBR AND NOW, this .J.2..1:rIJay of ~, scheduled for.11 J7 day of , Courtroom Number L, Cumberland 1994, a hearing is , 1994 at~m. in County Courthouse, Carlisle, Pennsylvania. J. . ~ I' ..,~1tf.~} V ~. 'I "A1 JUII 30 ~ II') rIM '9\1 l;! f>';i.1 '-jti\i I:! I, :< "" ,I' RAYMOND L. SMITH, JR. Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. q Lj -3 Lj J. ~ I I I I I COMMONWEALTH OF PENNSYLVANIA, I DEPARTMENT OF TRANSPORTATION, I Appellee I vs. APPRAL OF LICENSE SUSPENSION COMES NOW, Appellant Raymond L. Smith, Jr. by and through his attorneys Arthur T. McDermott and Associates, by Arthur T. McDermott, Esquiro and appeals the suspension of his driving privileges and states as follows I 1. Appellant is Raymond L. Smith, Jr. of 13 South Prince Street, Shippensburg, Cumberland County, Pennsylvania. 2. On June 2, 1994 Appellant was stopped by officer Gregory S. Martins of the Mid Cumberland County Regional police and charged with driving under the influence of alcohol 75. P.S. Section 3731(a)(1) and careless driving 75 P.S. Section 3714. 3. Appellant was deemed to have refused to "breath" test, because he "inhaled butane from his lighter" which the officer deemed to be a refusal. 4. When notified that Appellant had refused a breath test, Penn DOT suspended Appellant's driving privileges for a period of one (1) year. 5. Appellant denies that he was "inhaling" butane from his lighter to frustrate the testing. WHEREFORE, Appellant appeals to this Honorable Court to find that he should not be "deemed" to have refused the breath test, and that his drivinq privileqes should not be suspended. Respectfully submitted, ARTHUR T. MCDERMOTT & ASSOCIATES .-', ...-) (.~ / /..--) (/- , --;.-'..-". - ~ - - - -/, .' -"- -~- ~ ~-- /' { \. . ....... ~thu~- T. McDermott, Esquire 50 East High Street Carlisle, PA 17013 (717) 243-7807 , :~. d'p,.......,.,:JJ,~J..~.;:....".\."'"......,~.,.. ..,' .,' " ,~:t _. .',:"O.......,.,J..~..~ ,../.,. ,'v'.."."~l."'~~'" t':"" , , . '" '._,', I'" ", ~..' .".-':J" \...4! r. ... ,,I, ,,' . . . . .,..... j~ ",' "..... '::.~.,;...;~~:,..i:~. _::-~'.. VtRIFICX:tCll OF Pt.E.\DtlIGS I v~rify th~t th~ 8tate:cnts C~dd in this docucent are true and correct. I unddrstand that f~18e 8tatc:cnt8 herein a~e Qade subject to tho penalties of 18 P~. C.S. Section 490~, relating to un8~orn f~lsLfication to Diltel //2/ /t;~ -- CBRTIFICATB OF SBRVICB I hereby certify that a true copy of the foregoing Appeal of License Suspension was served on the below nll1l\ed pereon(e), by first class mail, postage prepaid, addressed tOI C~nwealth of Pennsylvania Departaent of Transportation Bureau of Driver Licensing Harrisburg, PA 17123 ".-- , Date r; / ;J_; /1'V . Arthur T. McDermott, Esquire SO East High Street Carlisle, PA 17013 (717) 243~7807 -" ---.-. 9 t~ - . :a. . . ;; -:r ,~. ... en () <:l .. ". - 0 ~ I.i) (;) 1.1) "" , , .-.l 0 lt1 I.r) (J") 7:l- :::J-. \) -.,..0 \.;~ ;_1 gj !'1 -, ::r-- \J) -;:r o ..... 1 -.n ~ ,:.I, t- Ux ~ r-6 - . Pa, Reporter, 481-639 A.2d 530 A.2d 957,114 Pa.Cmwlth. 441, Corn. Dept. 0... 'J !'jfE'7.~ - - ~ ~.- - - - - - - - - - - - - - - -- '\1'3" ~" ",,\' \ i,jl\lI.lt' ,.\\ 1\ (1-" I" , \ Page 538 A.2d 957 follows ----_______________________ 114 Pa.Cmwlth. 441 COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Appellant, v, James Daniel ORLANDO, Appellee. Commonwealth Court of Pennsylvania. Submitted on Briefs Oct. 8, 1987. Decided Mar. 16, 1988. Department of Transportation suspended driver's license for refusing to submit to breath test, and driver appealed. The Court of Common Pleas, Fayette County, Conrad B. Capuzzi, J., reversed suspension, and Department appealed. The Commonwealth Court, No, 1972 C.D. 1986, Barry, J., held that driver refused to take breath test when he placed Chewing tobacco into his mouth after being instructed not to place anything into mouth since it would affect results of test. Reversed. Colins, J., dissented. 1. AUTOMOBILES kI44.2(3) 48A 48AIV License and Regulation of Chauffeurs or Operators 48Ak144 Suspension or Hevocation of License 48Ak144.2 Procedure 48AkI44.2(2) JUdicial Remedies and Review in General 48AkI44.2(3) Scope of reviewl discretion and fact questions. Pa.Cmwlth. I98B. Scope of review where trial court has reversed suspension of driver's license is limited to determining whether findings of court were supported by competent evidence, whether there had been erroneous conclusion of law, or whether trial court's decision demonstrated manifest abuse of discretion. 2. AU'rOMOBILES kI44.1(1.20) 4BA 40AIV License and Regulation of ChaUffeurs or Operators 40Ak144 Suspension or Revocation of License 4BAk144.1 In Generall Groun~s 48AkI44.1(1.10) Intoxicationl Implied Consent 40AkI44.1(1.20) Refusal to take tost. Pa.Cmwlth. 1900. In order for Department of Transportation to sustain driver's license suspension for failure to submit to breath tost, it must prove that driver was -.----.--", ---'---.-'- ._--------~.... .._". Copyright (e) Wost Publlshlnq Co, 1<.194 No claim to original U.S. Govt. works. Pn. Reporter, 4Bl-639 A.2d ~30 A,2d 957,114 Pa.Cmwlth. 441, Com, Dept. 0... placed under arrest for driving while under influence of alcohol, drivor was requested to submit to breathalyzer test, driver refused to submit to test, and driver was warned that his license would be revoked if he refused to take test. 75 Pa.C.S.A. Sec. 1547(a). 3. AUTOMOBILES k413 40A 4BAIX Evidence of Sobriety Tests 48Ak4I3 Refusal of test, admissibility. Pa.Cmwlth. I9BB, Anything substantially less than unqualified, unequivocal assent to take breath test is refusal to submit to test under implied consent statute. 75 Pa.C.S,A. Sec. 1547(a). 4. AUTOMOBILES k421 4BA 40AIX Evidence of Sobriety Tests 4BAk421 Advice or warnings: presence of counsel. Pa.Cmwlth. 19BB, Warning that driver's refusal to submit to breath test will result in automatic suspension of license, and direction not to put anything into mouth as that would negate effects of test is all the warning to which driver is entitled under implied consent statute. 75 Pa.C.S.A. Sea. 1547(a). 5. AUTOMOBILES k413 4!lA 4BAIX Evidence of Sobriety Tests 4BAk413 Refusal of test, admissibility. Pa.Cmwlth. 19BO. Driver refused breath test under implied consent statute when driver placed tobacco into his mouth after being instructed not to place anything into mouth since it would affect results of test. 75 Pa.C.S.A. Sec. I547(a). [114 Pa.Cmwlth. 442] Harold H. Cramer, Asst. Counsel, John L. Ilea ton , Chief Counsel, Christopher J, Clements, Harrisburg, for appellant. Carolyn W. Maricondi, Connellsville, for appellee. Before BARRY and COLINS, JJ" and NARICK, Senior Judge. BARRY, Judge. The Department of Transportation (001') appeals an order of the Court of Common Pleas of Fayette County which sustained the appeal of James Daniel Orlando (Orlando) and reversed DOT's one-year suspension of his driver's license. On February 22, 1986, Orlando was placed under arrest, after being stopped Copyright (c) West PUblishing Co, 1994 No claim to original u.s. Govt, works. Po. HOpOI"tur, 41l]-(,]<) A.:>d '.1I1 A,;>d <J')?/ 114 l'u.Cmwlth. 441, Com, Dept. 0... . ...._.~._-_. .. _..n..._...____________ for urrntlc, high-spood driving unll fulling Huvornl field sobriety tests, for suspicion of driving while IntOldcutod, Orlnndo: wau tuken to II police stlltion for chemicul testing. 'I'ho nrrostlng ofticerl.l Informod Orlnndo thnt, if he r/lfused to submit to u breath teat, hill lJnenHfI would autornaticallybe __'.. \suspended for one year, 'I'he arrllstlng offlcon; I1lso instruoted Orlando not to ,place anything Into his mouth IIfor a period of ;>0 mlnutes,prior .to tho,tlls'1:.or it would \ ~~~~~~-~~~-;~~~i~~-~;-~~~- t~~f~ II f>~I\,~~ 2~1.~~=t f~~ I~~~ I ~~~~-~~~~i;i~~-~~~~-;i~~--- &~oconds prior to the porformanco ~ the test, Orll1ndo pll1ced a pinch of chewing tobacco between his cheek nnd gums. Orll1ndo denies being warned but admits to placing the chew In his mouth immediately before thu test. Orlando's actions were considered by the officerll I1S a refusal to submit to chemical testing. DOT notified Orlnndo that h's licenBe would be suspended for, one yel'\r os a result of this action. Orlando appealed this decision, The trial court, in sustaining the [114 Pn,Cmwlth, 443] apponl, opined that, 111though Orlando was told not to place anything into his mouth, he was not Informed that this action would be considered n refusal. 'l'hls nppeal followed. (1] Our scope of review where the trial court hns reversed a license suspension for refusing to submit to n chemical blood-alcohol test is limited to determining whether the findings of that court are supported by competent evidence, whether there has bRen an erroneous conclusion of lali, or whether the trial court's decision demonstrates a manifest abuse of discretion. Department of Transportation, Burenu of Driver I,icensing v, Rogers, Pa.Commonwealth ct, ----, 532 A,2d 935 (1907). DOT alleges that anything SUbstantially less than an unqualified, ) unequivocal assent to take a chemical test will constitute a refusal within the meaning of Section 1547 of the Vehicle Code, as amended, 75 Pa.C.s. Sec. 1547(a) (Code) and that the conduct of Orlando was a refusal to submit to chemical testing, Section 1547(a) of the Code states: . Any person who drives, operates or Is In actual phynlca1 control of the movoment of a motor vehicle in this Commonwealth shall he deemed to have given consent to one or more chemical testa of breath, blood or urine for the purpose of determining the nlcohollc content of blood or the presence of a controlled substance If a police officer has reasonable grounds to believe the person to have boen drlvlng, operating or In actual physical control of the movement of a motor vehicle: (1) while IInder the influence of alcohol or a controlled substance or hath; or (2) Which was Involved In an occident In which the operator or pansenger of any vehicle Involved or a pedestrlanll14 Pa,Cmwlth. 444J ruqulred treatmont at n medical facility or was killed, '1'- I'" C <, ... 1'-"/(') .) C'".. d. .)oe. )'1 d. ..--- Copyrl<)ht (e) l'iOBt 1'1llJi !nhl 11<) Co. 1 <Jl)4 - No claim to ori<)lnal lJ,B. Govt, workn. Pa, Reporter, 481-639 A.2d 538 A.2d 95'/,114 I'n,Cmwlth, 441, Com. Dept. 0... [2] In order for DOT to sustnin n suspension under Section 1547(n) of the Code it must prove that the driver (1) was plnced under nrrost for driving while under the influence of alcohol; (2) was requested to submit to a breathalyzer test; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test. capozzoli Appeal, 63 Pa. Commonwealth ct. 411, 437 A,2d 1340 (1981). " [3][ 4] We aC]ree that. nny,th!ng substnntially lesf!..than-.ln-.unquaHf.~, ,$\ unequi vocal assent to take a breatl1-'tesFTs- ii-- reTu'sal ung,er_Section ......,7'( f1) of .. toe COGe:..--' Depl'lrtment of 'I'ransportatio'n v'~- 'Jon'e's; '3'8' fin. Commonweal th Ct~-. .. 400, 395 A.2d 592 (1978). In the current matter, the arresting officers gave '-. Orlando a warning that his refusal to submit to the breath test would result in an automatic suspension of his license. The arresting officers also , direct&d Orlando not to put anything into hh :i1i,c:l\lth '1Is--,ttr1!l.'WOUli1lttlqlifii"Hie effects of the test. We belJeve that this is all the warning a -lIlotor-ist, ie.. , . uann tfe-d" to'Ye'Ollive; . In Department of Transportntion V. Mumma, 79 Pa. Commonwealth ct. 108, 468 A.2d 891 (1983), a motorist was warned that smoking a cigarette before a breath test was administered would constitute a refusal to submit to the test. This Court stated that the motorist's "SUbsequent smoking signaled his refusal as clearly as if he announced his refusal in words." Mumma at 112, 468 A.2d at 893. See Department of Transportation v. Jones, 38 Pa.Commonwealth ct, 400, 395 A.2d 592 (1978). [5] In this case, Orlando was instructed not to place anything into his mouth. He also was instructed that placing objects into his mouth would affect the results of -------------------------- Page 538 A,2d 959. follows __________________________ the test. This is sufficient warning and his actions of placing[114 Pa.Cmwlth. 445] the chew into his mouth is a refusal. Accordingly, we reverse the trial court and reinstate DOT's one-year suspension of orlando's license. ORDER NOW, March 16, 1988, the order of the Court of Common Pleas of Fayette County, dated June 9, 1986, at No, 782 of 1986 G.D., is reversed. COLINS, J., dissents. Copyright (c) West PUblishing Co. 1994 . No claim to original U.S, Govt. works--:-- , I" 11 ~ ..~, DONALD SHAFFER, Appellant V I IN TilE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I I I NO. 4330 CIVIL 1992 I COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee IN RlI APPJ!!U,IUfT'S LICENSE SUSPENSION APPEAL BEFORl SHEELY. P.J. ORDER OF COURT AND NOW, this /...1'1- day of ',/'0<-. 1l.A..- ,/ , 1993, having been presented with a prima facie case by the Commonwealth, we hereby DENY appellant's license suspension j appeal. 'W.I By the Court, it, j r .. ,/(, ffarold E. Sheely, P.J. Robert J. Mulderig, Esquire For the Appellant Philip L. zulli, Esquire For the Appellee Ipbf ~ , '._- DONALD SHAFFER, Appellant V I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I I I NO. 4338 CIVIL 1992 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Appellee IN REI APPELLANT'S LICENSE SUSPENSION APPEAL BEFORE SHEELY. P.J. OPINION AND ORDER OF COURT Here we are aeked to decide whether the Department of Traneportation preeented a prima facie caee that appellant wae 1) arreeted for driving under the influence; 2) wae requested to eubmit to chemical teeting; 3) refueed to eubmit to ouch teeting; and 4) wae epecifically warned that a refueal would reeult in the revocation of appellant'e driving licenee. FINDINGS OF FACT 1) On November 14, 1992, Patrolman Pinckney obeerved the appellant accelerate in a dangerous manner, croes over the double yellow line and make a right hand turn without o1gnalling. 2) The Patrolman pulled over the appellant and detected the smell of alcohol on appellant'e breath and observed that the appellant's eyee were glaeey and blood shot. 31 After failing two field sobriety teete, appellant became unruly and uncooperative at which time the patrolman took the appellant into cuetody and took the appellant to Shippensburg Police Department for a breatha1yzer test. t""I ..;. . NO. 4338 CIVIL 1992 4) At the Shippenoburg Police Department, Patrolman worthington explained to the appellant hio righto under the Implied Conoent Law and explained the proper way to take the teot. 2 5) Appellant would not blow into the machine ao inotructed and wao advioed that failing to provide oufficient breath conotituteo a refuoa1 to take the test which would result in a license ouspension. 6) Deopite theoe warningo, appellant failed to give a oufficient amount of breath for the teot on two ouboequent testo. 7) Patrolman Pinckney took the appellant to Chamberoburg Hospital for a blood test which was never taken \ becauoe appellant would not sign a waiver. -.;..} 8) Patrolman Pinckney charged appellant with refusing to take the breathalyzer test and the blood test, DISCUSSION To ouotain a suspension of a driver'S license, the Department of Tranoportation muot present prima facie evidence that the motorist was 1) arrested for driving under the influence of alcohol; 2) was requested to submit to chemioal testing; J) refuoed to submit to such testing; and 41 was specifically warned that a refusal would reoult in the revocation of the driver's lioense. Department of Transportation, nureau of Driver Lioensing v. Garlan, 121 Pa. Cornrow. 400, 550 A.2d 873 (1988). As the trier of fact, it is this court' 0 duty to determine the ~ . '-- NO. 4330 CIVIL 1992 credibility of witneeseo and the evidentiary weight. Waiqand v. Commonwealth, 68 Pa. Commw. 541, 449 A.2d 862 (1982). Review of our decio1on io limited to whether this court commito legal error or abuoed our discretion. Department of Transportation. Bureau of Traffic Safety v. O'Connell, 52 Pa. 242, 555 A.2d 873 (1989). In the present caoe, the licenoee clearly wao arreoted for driving under the influence of alcohol. Patrolman Pinckney while on duty, oboerved the licenoee accelerate in a dangerous manner, cross over the double yellow line, and make a right hand turn without oignalling. When the officer pulled the licenoee over, the officer detected the smell of alcohol on the licensee's breath and observed that the licensee's eyeo were blood ohot. After failing two field sobriety testo, the licenoee became belligerent and unruly. At that point the officer arrested the licensee and took him to the Shippensburg Polico Department for a breathalyzer teot. At the Shippensburg Police Department, Patrolman Worthington explained what the licensee'o rights were and warned the licenoee that a refuoal to take the teot could result in licenoe suopension. Patrolman Worthington teotified how he fully instructed the licensee on how to take the breathalyzer teot. We are satisfied that the Department of Transportation has presented prima facie evidence that the licensee was arrosted for driving under the influence of alcohol, was requested to oubmit to testing, and wao adequately warned of the consequences of refuoing to be tested. ] t:) J NO. 4338 CIVIL 1992 The controveroy in the case sub judice revolves around whether the licensee refused to take the test. Failure to provide sufficient breath for the breathalyzer test ie by law a refusal. Department of Transportation. nureau of Driver Licenll1nq v. Killian, 140 Pa, Commw. 484, 600 A.2d 541 (1991); Department of Transportation v. Berta, 120 Pa, Commw. 558, 549 A.2d 262 (1988). See Department of Transportation, Bureau of Driver Licensinq V. Jeffries, 144 Pa. Commw. 140, 601 A.2d 401 (1991). Even a good faith effort to complete the teot conotitutes a refusal where the motorist fails to supply a oufficient breath oample. Id. In the present case, Patrolman Worthington testified that the licensee failed to give a oufficient sample of breath. The Patrolman warned the licenoee that thio would be conoidered a refuoal. The licenoee otated he had a cold but it wao the Patrolman'o oboervation that licenoee had no problemo breathing. It wao Patrolman pinckney'o observation that licenoee did not exhibit problema breathing until they got to Shippenoburg. We find that thio was a refusal for the purpooeo of licenoe revocation. Licenoee maintaino that the police waived the firot refuoal by taking him to the hoopital for a blood teot. In oupport of thio, defendant relies on Marmo v, Department of 'rransportation, _ Pa, COIIUIIW. _, 54] A.2d 236 (1980), reconsidered at, 121 I'a. Commw. 191, 550 J\.2d 607 (19881. However, in Geonnotti v. Dopartment of Transportation. nureau of 4 Pa, Reporter, 251-400 A.2d 460 A,2d 091, 79 Pa.Cmwlth. 108, Corn., Dept. 0... I,.!~~;.i(. ',\-,,(,~,,~:,~------------------ Page 468 A. 2d 091 follows ___________________________ \ , COMMONWgAL'rJ( of Pennsylvania, DEPAR'l'MgN'r OF 'l'RANSPOR'l'A'rION \\\. \' nUREAU OF 'I'RAFPIC SAFE'I'Y, Appellant, t' v. Joseph T. MUMMA, Appellee. No. JO C.D. 1903. 79 Pa,Cmwlth. 100, 460 A.2d 891 Commonwealth Court of Pennsylvania. Submitted on nriefs Nov. 16, 1983. Decided Dec, 15, 1983. Motoriot appealed license suspension based on his refusal to submit to breathalyzer test. The Common Pleas Court, Dauphin County, John c. Dowling, J., reversed suspension, and PennsYlvania Department of Transportation appealed. The Commonwealth Court, No. 30 C.D. 198], Craig, J., held that motorist's action in Smoking cigarette, after he had been told four times not to smoke and warned that smoking would amount to a refusal, constituted refusal to take breathalyzer test. Reversed and sUspension reinstated. 1. AUTOMOBILES kI44.2(3) 40A 40AIV License and Regulation of ChaUffeurs or Operators 48AkI44 SUSpension or Revocation of License 48AkI44.2 Procedure 48AkI44.2(2) JUdicial Remedieo and Review in General 48Ak144.2(3) Scope of review; discretion and fact questions. Pa.Cmw1th.I983, Commonwealth Court's scope of review of common pleas court's decision in license sUspension case is limited to determining whether findings are supported by competent evidence, whether there has been erroneous conclusion of law or whether common pleas court's decision demonstrates manifest abuse of discretion. 2. AUTOMOBILES kI44,2(9) 40A 40AIV License and Regulation of ChaUffeurs or Operators 40AkI44 SUspension or Revocation of License 48Ak144.2 Procedure 48AkI44.2(9) Evidence In administrative or jUdicial proceedings. Pa.Cmwlth. 1901. To sustain license sUspension based on refUsal to submit to breathalyzer test, Commonwealth must prove that driver was placed under arrest for driving while under influence of alCOhOl, was requested to submit to breathalyzer Copyright (c) West Publl sh i ,ig-' Co-.--I'99:1 Nil-uc:fnlm -to- or-Ig-Illcl T ,U.us ,--CiOVt-:- work;;--:--- Pa, Reporter, 251-480 A.2d 468 A.2d 891, 79 Po.Cmwlth, 100, com" Dept. 0... teot, refused to do so and was warned that hie licenoe would be revoked if he refuoed to take test. 75 Pa,C.S.A. See, 1541, 3. AUTOMOBILES kI44,1(1.20) 48A 48AIV Licenoe and Regulation of Chauffeurs or Operators 4BAkI44 Suopension or Revocation of Licenoe 4BAkI44.I Grounds 48AkI44.I(I.10) Intoxication; Implied Consent 4BAkI44.I(I.20) Refuoal to take test. Formerly 4BAk144.1(.) Pa,Cmwlth.19B3. . -'\ "'. ~~'&l.~l to ta~.Ju:eathalY.Zilz:__teat.,~.ed not be expres~ec1~1lLwordR hilt canJ?e fi:~:~~ ~r~~~qJorist's actionsL-_for example, motorist's failure to provide '~ dent air to permlt--teaf-to be made is tantamount to refusal, even where motorist has expressed consent to test. 75 Pa.C.S.A. Sec. 1547. 4. AUTOMOBILES kI44.1(1,20) 48A 4BAIV Licenoe and Regulation of Chauffeuro or Operators 4BAkI44 Suspension or Revocation of License 4BAkI44.1 Groundo 4BAkI44.I(I.IO) Intoxication; Implied Conoent 4BAk144.I(1.20) Refusal to take teot. Formerly 48AkI44.1(I) Pa.Cmwlth. 19B3. Motorist'o request to see his attorney when asked to submit to breathalyzer is conoidered dilatory and constitutes refusal, ao does motorist's request to have his physician oummoned. 75 Pa.C.S.A. Sec. 1547. 5. CRIMINAL LAW k641.J(8) 110 110XX 'rrial II0XX(n) Course and Conduct of Trial in General lIOk64I Counsel for Accused IIOk641.J stage of Proceedings as Affecting Right 110k641.3(B) Identification in general and tests, handwriting exemplars, photographing, etc. Formerly 110k641.2 Pa,Cmwlth. 190J. Arrested motoriot is not entitled to have attorney preoent during breathalyzer test, nor to consult one prior to responding to police officer's request to take test. 6, AU'I'OMOIlILES k144.1(1.20) Copyr 19l1tiZ;-)'West--jlulij lnhtnlJ co-:- 1991- No (; 1 a (n;--to-or lqTna 1 tJ. S. Govt. -wo-rk-;:- Pa. Reporter, 25I-4BO A,2d 4(iB A.2d 091, -79 Pll.Cmwlth. lOll, Com., Dept. 0... 4BA 48AIV License and Hegulation of Chauffeurs or operators 48Ak144 suspension or Revocation of Liconse 48Ak144.1 Grounds 48Ak144.I(I.IO) Intoxication; Implied Consent 48AkI44.1(I.20) Refusal to take teot. Formerly 48AkI44.I(I) Pa.Cmwlth. 1983. Motorist's action in smoking a cigarette, after officers had told him four times not to smoke because it would interfere with breathalyzer and warned him that smoking would amount to a refusal, constituted refusal to submit to breathalyzer test that warranted his license ouspension. 75 Pa.C.S.A. Secs. 1547, I547(b), (b)(I). 7. AUTOMOBILES k144.I(I.20) 48A 4BAIV License and Regulation of Chauffeurs or Operators 48AkI44 Suspension or Hevocation of License 48AkI44.1 Grounds 48AkI44.I(I.IO) Intoxication; Implied Conoent 48Ak144.I(I.20) Hefusal to take test. Formerly 48AkI44.I(I) Pa.Cmwlth. 1983. Voluntary intoxication is not justifioation for motorist's failure to submit to alcohol teot. 75 Pa.C.S.A. Sec. 1547. 8. AUTOMOBILES kI44.1(I.20) 48A 48AIV License and Hegulation of Chauffeurs or Operators 48Ak144 Suspension or Hevocation of License 48AkI44.I Grounds 4BAk144,1(I.10) Intoxication; Implied Coneent 48Ak144.1(I.20) Hefusal to take test. Formerly 48AkI44.I(I) Pa.Cmwlth. 198]. Neither officors' refusal to tolerate delay detrimental to test's validity as a result of motorist's smoking.no! fact that__the~~!lqwed him to keep his . ctgarettellnrQY!tle.~Ltlny tJ!!!?J.!U'gr d16fegaraIfig motorIat'!? smo~lng oTcr1'llareUe-- which constituted, in context, refusal in fact to take breathalyzer test. 75 Pa.C;S;lI; Sec. 1547. - (79PACMWLTIIl09] Harold H. Cramer, Asst. Counsel, Lawrence R. Wieder, Asst. Counsel, Ward 1'. Williams, Chief Counsel, Jay C. Waldman, Gen. Counsel, l~rriBburg, for appellant. Copyright -(~)'-Wi;Bt-PU-I;TjshTnqco. 1993 No claim to original U.S. Govt. works. Pa. Reporter, 251-400 A.2d 4(.B ^.?d B'JI, 'I') I'n.Cmwlth, lOB, Com., Dept. 0... -------------------------- Page 460 A.2d 092 follows --------------------------- William II. Naugle, Nnugle & Sulllvnn, Ilnrrlnburq, for nppelleo. Before WILLIAMS, CRAIG nnd MIICPIlAIL, ,},) , CRAIG, Judge. The Pennsylvania Department of Trnnsportntion, nurenu of Trnfflc Safety (DOT) appeals from an order of the Dauphin County Court of Common Pleas reversing DOT's suspension of Joseph T. Mumma's driver's license. [I] The question is whethor tho triul court erred In determining that Mumma's action in smoking a cigarette, despite several warnings not to do so, did not constitute a refusal to toke the breathalyzor test. (FNI) \jhather arnQt, there has boen a refusal by a motorist to Bubmitto II breathalyzer test i~~ factual, not n legal, determination, Department of I Trarlsportation,[79PACMWLTII110] Bureau of Traffic Safety v. Pedick, 44 Pa. Commonwealth ct. 44, 401 A.2d IBI (1979). The events In this case are not in dispute. On May 14, I9B2, Officer Fry of the Lower Swatara Township Police Department observed Mumma driving recklessly, and pulled him over. After Mumma performed poorly on several field sobriety tests, Officer Pry transported him to the Capital Campus Police station to administer a breathalyzer test. Pry testified thnt he and nnother officer warned Mumma four times not to smoke because it would intorfere with tho breathalyzer and be considered a refusal to submit to the test, resulting in an automatic six-month suspension of his driver's license. Nevertheless, Mumma did light ,up a ci.garette. Officer Fry said "'rhat's It" and'shut the machine off. 'rhe,' officers would have been required to wait twenty minutes before again attempting to administer the tost; they chose not to, nnd instead transported Mumma home and advised him that hq woUld rocei ve n summons. [2] DOT notified Mumma that his license was suspended for six months based on his refusal to submit to the breatha1yzer test in violation of Sec. 1547 of the Pennsylvania Vehicle Code, '/5 Pa.C,S. Sec, 1547. Mumma appealed the suspension to the Dauphin County Court of Common Pleas. 'l'he court reversed the suspension, finding that the Commonweal th had fa iled to meet its burden of establishing a refusal to take the breathalyzer test. (FN2) This appeal followed. [79PACMI~L'rJIl11] Section 1547(b)(l) of 'I'he Vehicle Code, as in effect on May 14, I9B2, provided in part: If any person placed under arrest for drivlnq under the influence of alcohol is requested to submit to a chemlcnl tost and refuses to do so, the test shall not be given but upon notice by the pollee officer, the department shall: (i) suspend the operating privilege of tho person for a period of six --_._--~_.._-_.__._._~-- ---_._- Copyright (c) West l'ubli;iilfn-CJ"Co.19~i) No claim to r;'rlqinillUlj.S.nG~vt:'-works-:- Pa, Reporter, 251-480 A.2d 4G8 A.2d 091, "If) Pn.Cmwlth, 108, Com., Dept. 0... months .... [3][4][51 We have consistently held thnt IInythlnCJ substllntilllly less '1 than an unqualified, unequivocal nssont to tnke n brenthnlyzer test constitutes n refusal under Soc. 154"1. Depnrtment of Trnnsportation, Bureau of Traffic Safety v. Tillitt, 49 Pa, Commonwelllth ct. 343, 411 A,2d 2"16 (1980). ,A refusal need not be exprossed in words, but can be implied from a mQtor-iet's aotions.For example, a motorist's failure to provide sufficient air to permit the test to be made is tantamount to n refusal, Department -------------------------- Page 468 A.2d 893. follows -------------------------- of Transportntion, nureau of Traffic Safety V. Jones, 30 Pa. Commonwealth ct. 400, 395 A.2d 592 (1978), even where the motorist has expressed consent to the test. Budd Appeal, 65 Pa. Commonwealth ct. 314, 442 A.2d 404 (1982). Further, a motorist's request to see his attorney when asked to submit to the breathalyzer is considered dilatory and constitutes a refusal, (FN3) Miele V. Department of Transportation, Bureau of Traffic Safety, --- Pa, Commonwealth ct. ---, 461 A.2d 359 (1983), as does a motorist's request to have his physician summoned. End v, Department of Transportation, nureau of Traffic Safety, 6 Pa, Commonwealth ct. 347, 295 A.2d 196 (1972). [6, 7] [79PACMWLTIIII2] Those casos presented much closer factual determinations than that involved here. After the officers told Mumma four times not to smoke and warned him that smoking would amount to a refusal, Mumma's subsequent smoking signaled his refusal to submit to the test as clearly as if he had announced his refusal in words. Mumma's contentions that, due to his inebriated state, he did not possess his "full facilities" [sic] and that the police should not be permitted to take advantage of his impaired ability to respond to orders, are meritless. Voluntary intoxication is not a justification for a motorist's failure to submit to an alcohol test. Walthour v, Department of Transportation, nureau of Traffic Safety, --- Pa. Commonwealth ct. ---, 458 A.2d 1066 (1983). .--...-.... [8] The trial court based its conclusion, that the Commonwealth had not established a refusal, ~artly on the fact that tho officers made no effort to take Mumma's cigarettes away. Section 1547 of The Vehiole Coda suggests no , such requirement; we cannot read that section as implying in any way that officers have a duty to confiscate all matorials which could potentially ~ntorfere with administration of the breathalyzer test. Submission to the ,-_., test is voluntary. The statute requires only that the arresting officer relate the consequences of refusal to the motorist, who is then free to choose his course of action. Therefore, the officers' failure to confiscate Mumma's cigarettes was an erroneous basis for the lower court's holding. I I The trial judge was also persuaded by the fact that the officers did not wait twenty minutes for the effect of smoking to wenr off and then nttempt to re-administer the test...; No roact!lllj of section 1547 can support a view that the police must wait through such a dolay, Department of Transportation, Buroau of Traffic Satety V. Wroblewski, 65 Pa, Commonwenlth ct. 333, [79PACMWLTIIl13] 336, 442 A,2d 407, 409 (1982), "[Tlime is or the essence In administering breath tests, due to the volatile nnturo of tho evidence to be obtained, nnd the public intorest In ancertainlng violatorn of section 37]1 Copyright (c) West PUblishing c~). 1993 No clnlm to orlglnn) U.9. Govt. works. .., Pa, Reporter, 251-480 A.2d 468 A.2d 891, 79 Pa,Cmw1th. 108, Com., Dept. 0... [driving under the influence] is so compelling as to justify a very otriot application of the law." Mumma's obstructive action in this caoe was not like the instantaneous equivocation in Department of Tranoportation, Bureau of Traffic Safety v. Tillitt, 49 Pa, Commonwealth ct. 343, 411 A.2d 276 (1980). In summary, neither the officers' refusal to tolerate delay detrimental to the test'o validity, nor the fact that they allowed the driver to keep his cigaretteo (nor the irrelevant circumstance that they brought Mumma to the station in handcuffo) provided any basio for disregarding the undisputed evidenc~ of his action, which wao, in context, a refuoa1 in fact. Accordingly, we reverse. ORDER NOW, December 15, 1983, the order of the Dauphin county Common Pleas court, dated December 13, 1982, is reversed, and the ouspension imposed by the Department of Tranoportation is reinstated. FN1. Our scope of review of a common pleaD court decision in a license suspension case io limited to determining whether the findings of that court are supported by competent evidence, whether there has been an erroneous conclusion of law or whether the common pleas court decision demonstrates a manifest abuse of discretion. Waigand V. Commonwealth, 68 Pa, Commonwealth ct. 541, 449 A.2d 862 (1982). FN2. To sustain a suopension under Sec. I547(b) of the Code, the Commonwealth must prove that the driver was (1) placed under arrest for driving while unde the influence of alcoho11 (2) wao requested to oubmit to a breathalyzer testl (3) refused to do SOl and (4) was warned that his license would be revoked if he refuoed to take the test. Capozzoli Appeal, 63 Pa. Commonwealth ct. 411, 437 A.2d 1340 (1981). Only the third element is involved in this appeal. FN3. The arreoted motorist is not entitled to have an attorney preoent during the test, nor to conoult one prior to reoponding to the police officer's request to take the test. Weitzel Appeal, 41 Pa. Commonwealth ct. 235, 400 A.2d 646 (1979). Copyright (0) West Publishing Co. 1993 No claim to original U.S, Govt. works. Pa. Reporter, 481-639 A.2d 638 A.2d 377, Com. v. Wendler, (Pa.Cmwlth. 1994) i) '1~~~7--------------------- . , ~' ~ " If) ~I(, , Page 638 A.2d 377 follows --------------------------- COMMONWEALTH of Pennsylvania, v. Willis J. WENDLER, Appellant. Commonwealth Court of Pennoylvania. submitted Sept. 24, 1993. Decided Feb. 11, 1994. Motoriot's license was suspended for refusal to submit to chemical test following arrest for driving while intoxicated. Motorist appealed. The Common Pleas Court, Allegheny County, No. SA 3652 of 1992, Doyle, J., denied appeal. Motorist appealed. The Commonwealth Court, No. 774 C.D. 1993, smith, J., held that motorist's conduct in drinking soda prior to administration of chemical test, after he had been told by officers not to open can of soda, did not constitute refusal to submit to chemical teoting. Reversed. silveotri, J., dissented. 1. AUTOMOBILES k144.1(I.20) 48A 48AIV License and Regulation of Chauffeurs or Operators 48Ak144 Suspension or Revocation of Licenoe 48Ak144.1 In Generall Grounds 48Ak144.1(1.10) Intoxicationl Implied Consent 48Ak144.1(1.20) Refusal to take test. Pa.Cmwlth. 1994. When automobile licensee appeals license suspension imposed for having refused to submit to chemical testing, Department of Transportation (DOT) must eotablish that licensee was arrested for driving while under influence (DWI) of alcohol, was aoked to submit to chemical test, refused to do so, and wao specifically warned that refusal would result in license suspension. 75 Pa.C.S.A. Sec. 1547(b)(1). 2. AUTOMOBILES k144.I(1.20) 48A 48AIV License and RegUlation of ChaUffeurs or Operators 48Ak144 Suspension or Revocation of License 48Ak144.1 In Generall Groundo 48Ak144.1(1.10) Intoxicationl Implied Consent 48Ak144.1(1.20) Refusal to take test. Pa.Cmwlth. 1994. Regarding refusal of automobile licensee to submit to chemical test following arrest for driving while under influence (DWI) of alcohol, anything less than unqualified, unequivocal assent to ehemical testing is refusal. 75 Copyright (c) West PUblishing Co. 1994 No claim to original U.S. Govt. works. Pa. Reporter, 48I-6J9 A.2d 6J8 A.2d J71, Com. v. Wendler, (Pa.Cmwlth. 1994) Pa.C.S.A. Sec. I547(b)(I), J. AUTOMOBILES kI44.1(I.20) 48A 48AIV License and Regulation of Chauffeuro or Operators 4BAk144 Suspension or Revocation of License 48Ak144.I In General; Grounds 48AkI44.I(I.IO) Intoxication; Implied Consent 48AkI44.1(1.20) Refusal to take test. Pa.Cmwlth. 1994. Following arrest for driving while intoxicated (OWl), motorist's conduct in drinking soda prior to administration of chemical test, after he had been told by officers not to open can of soda, did not constitute refusal to submit to chemical testing, where motorist was not told that drinking soda would constitute a refusal to submit to chemical testing or would affect test results. 75 Pa.C.S.A. Sec. 1547(b)(I). Raymond N. Sanchas, for appellant. Kerry A. EberSOle, Legal Intern, and Timothy P. Wile, Assistant Counsel In-Charge Appellate Section, for appellant. Before SMITH and KELLEY, JJ., and SILVESTRI, Senior Judge. SMITH, Judge. Willis J. Wendler appeals from an order of the Court of Common Pleas of Allegheny county which denied his appeal from the Department of Tranoportation's (DOT) suspension of his operating privileges pursuant to Section 1547(b)(I) of the Vehicle Code, 75 Pa.C.S. Sec. 1547(b)(I). (FNl) The issue presented is whether the trial court's decision is contrary to decioions of this Court which require that a licensee not only be given a warning that certain action should not be performed but also an explanation that performance of a prohibited action constituteo a refusal to submit to chemical testing. On September 25, 1992, Wendler was arrested and charged with driving under the influence of alcohol. DOT notified Wendler that his driver's license would be ouspended for refusing to submit to chemical testing and he appealed to the trial court which held a hearing. DOT presented Trooper Arthur R. Giles who testified that at the time of Wendler's arrest, he read Wendler implied consent warnings which informed Wendler that he would lose his license for one year if he _________________________00 Page 6JB A.2d J78 follows --------------------------- did not submit to chemical testing. lie then asked Wendler to oubmit to a breath teot and Wendler refused to take the test and to sign the refusal form. Trooper Giles further tostified that when he gave Wendler a second chance to take the breath test, he agreed to take the test. DOT also introduced the testimony of Trooper Timothy Campbell who testified that he gave Wendler a second opportunity to take the test after his initial refusal, Copyright (c) West Publiohing Co. 1994 No claim to original U.S. Govt. works. Pa, Reporter, 481-639 A.2d 6]0 A.2d 377, Com. V. Wendler, (Pa.cmwlth. 1994) that Wendler said he was thirsty and was permitted to purchase a can of soda from a vending machine, and that he told Wendler not to open thO can ofaotn1. He stated that when the intoxiiyzor oporat'or'ontered;Wend111r opened the can and drank some ooda. The intoxi1yzer operator decided not to administer the teot and Trooper Campbell told Wendler that his refusal was going to stand. Wendler teotified that he drank the soda to quench his thirst and that .~lk; although one of the troopers told him not to open the can, the trogpers ,dig,. poct.@ll him ,!;hat. drinking soda would constitute a refuoal fa-SUbmit to #che~J~Al-IeBting. The trial court determlne~ that Wendler disobeyed-tne trooper's specific inotructions by drinking oodal the troopers clearly and concisely tranomitted the implied consent warnings to Wendlerl and Wendler comprehended the warnings to the degree that he was able to formulate an evaoive maneuver in an attempt to avoid the teot. The trial court dismissed Wendler'S appeal and Wendler appeals to this Court. [1][2] Wendler contends that the trial court erred in determining that he refused to oubmit to a chemical test because the police officers did not advise him that drinking soda would affect the test results or constitute a refuoal to submit to chemical testing. (FN2) When a licensee appeals a license suspenoion under Section 1547(b)(1) of the Code, DOT must establish that the driver was arrested for driving under the influence of alcohol, was asked to submit to a chemical test, refused to do so, and was specifically warned that refuoa1 would result in hio or her license being suspended. Cartwright V. commonwealth, 130 Pa.commonwealth ct. 325, 5B7 A.2d 909, appeal denied, 52B Pa, 645, 600 A.2d 196 (1991). Anything leos than an unqualified, unequivocal asoent to chemical testing is a refusal. Department of Tranoportation, Bureau of Driver Licensing V. Mumma, 79 Pa.commonwealth ct. lOB, 46B A.2d 091 (I9B3). [3] Wendler relies upon Mumma to support his argument that drinking soda io not a refusal to submit to chemical testing because the troopers did not inform him that drinking soda would constitute a refusal. In Mumma, the Court upheld a license suspension where the licensee smoked a cigarette after the police officers warned him not to omoke and that it would interfere with the breath test and be considered a refusal to submit to chemical testing. Wendler also cites Department of Transportation, Bureau of Driver Licensing V. Orlando, 114 Pa.commonwealth ct. 441, 53B A.2d 957 (I90B), in which the court upheld a license suspension where 11 licensee put chewil}9 tobacco in his mouth after police officers instructed him not to pu~'anvthing in his mouth for twenty minutes hefore the test and that it would negate the results of the teot. In orlando, the Court stated: [T]he arresting officers gave orlando a warning that his refusal to submit to the breath test would result in an automatic suspension of his license. The arreoting officere also directed Orlando not to put anything into his mouth as thlo would negate the effects of the test. We believe that this ie all the warning a motorist is entitled to receive. Id. at 444, 530 A.2d at 958. COPYright--(Cfwllllt--i;UhlIBhrnq--co~--1i)94-- No claim to original u.s. Govt. works. Pa, Reporter, 481-639 A.2d 638 A.2d 377, Com. v, Wendler, (Pa.Cmwlth. 1994) Wendler asserts that Orlando and Mumma establish that in this case a two-step warning was required, and that the troopers should hove also informed him that drinking coda would constitute a refusal to submit to chemic~l testing or that drinking soda would __________________________ Page 638 A.2d 379. follows -------------------------- affect the results of the test, (FN3) Although DOT asserts that any failure to follow the officers' instructions constitutes a refusal, the cases upon which it relies do not support this proposition. See Books V. Department of Transportation, Bureau of Driver Licensing, 109 Pa.commonwealth ct. 25, 530 A.2d 972 (1987); and Budd Appeal, 65 Pa.Commonwealth ct. 314, 442 A.2d 404 (1982). In Books and Budd, this Court held that giving an insufficient breath sample when taking 0 breath test constitutes a refusal to submit to chemical testing. Books and Budd ore distinguishable from the caoe sub jUdice because the licensees in those cases disobeyed the officers' instructions about the actual administration of the test. Although Wendler disobeyed the troopers' directions not to open the can of soda, he did, not disobey any,ordars which eKplicitly pertained to the administration of the breath test. since Wendler was not told that'drinking sooii would constitute ua refusal" to submit to chemical testing or affect the test resulto, his conduct did not conotitute a refusal to take the test. DOT did not establish that Wendler refused to submit to chemical testing; therefore, the trial court's order is reversed, ORDER AND NOW, this 11th day of February, 1994, the order of the Court of Common Pleas of Allegheny County is reveroed. SILVESTRI, Senior Judge, dissents. FN1. Section 1547(b)(I) provides: If any person placed under arrest for a violation of section 3731 (relating to driving under the 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. FN2. Before the trial court, DOT's counsel conceded that the troopers' second offer to submit to chemical testing vitiated Wendler's initial refusal to tak the test. Although an assent to submit to chemical testing cannot vitiate a prior refusal, Department of Transportation v. Monohan, 144 Pa.Commonwealth ct. 328, 601 A.2d 489 (1991), DOT is bound by its concession before the trial court. Marmo v. Department of Transportation, 121 Pa,commonwealth ct. 191, 550 A.2d 607 (1900). FN]. Wendler also relies upon olbrish V. Deportment of Transportation, Bureau of Driver Licensing, 152 Pa.Commonwealth ct. 423, 619 A.2d 397 (1992), in which the Court determined that a licensee's failure to breathe into a Copyright (c) West PUblishing Co. 1994 No claim to original U.s. Govt. works. Pa. Reporter, 481-639 A.2d 638 A.2d 377, Com. v. Wendler, (Pa.Cmwlth. 1994) breathalyzer constituted a refusal to submit to chemical testing. The Court in Olbrish based its decision, in port, on the fact that the officers spacifically told him that his actions would constitute a refusal. 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CHEMICAL TESTING WARNINGS AND REPORT OF REFUSAL TO SUBMIT TO CHEMICAL TESTING AS AUTHORIZED BY OF TltE VEHICLE CODE (;) SE CTlON 1547 HAWl III UO(XI CIIV /I' 111 .1 All r.~~ r t-. ." ')1, ~(\: ___ ______._, ~W 9lAlI cul" tlSf RloUlSI IJAlI "., "( f)A '.d:.wJ' L!,: 'OCIAl9(CuAI1'V NU".lR SECTION 1547. CHEMICAL TESTING WARNINGS 1 PIGUO bo Idvlltd thll ruu 1ft now u,..OOt I"OU 10' OftVlng U"'Ool Ih, Influonce 01 .lcohol 01 . conlloUed tub"lnee purlu.nllo I"\lon 313 1 01 thl Voh~11 Code 2 11m r~uoallng 'hi I rou tubmlllo /I chumlc..aIIOII 01 . . . h_.F'I_~.vII_~.. _. _ tbloalh. blood 01 UFfno Ofhcol thOO"1 thl ch.mICII'"'1 3 1111 my duty, II I pollon 01l1C4' InH'lIOlm you Ihalll yOll16lu.o 10 tubmlllo Ihn chllml\'.l11l1I1 yOllt O,III1AII"g JlIIVllog. ""III b. IlllptlO<tlld 101 " pcmod 01 anD rell . "I Thu tOnlllluho,..allluhll you hftVI' In 0' IlItllnal dll'llnd,'HI I ClIll",onl, "nu"n Ulllll ~llnnd" fl.glll. lndud'ng Ih" Ilghlla . pet.'" wllh Ilnw,UI .nd Ihu "ghIIU rumBlfl.,lunlllppl, only 10 (llml".,l Jl'\JUKlJllon\ IIInd do nol apply 10 Ill" (hunllc.1 hIlling p1or.oduILI undUll'onn.,I.lnll'. Impllod Con.unll.iN .....hlch II. clwll nol IIlllmlna' p1O(;,",dong bl You hlVo no ftghllO Ipo.,k 10 .,..,., 0' .n,MlJ II.. belDl' lI"lng 1111 chlmttlllvU'ltqutllllJd b, thv poilU olllcel nOf 00 yOU h.", I uyhllO tum'ln Illonlwhon ....od br Iho POlitO OIlI'tI'IO lubm'llo LN chemical I.., Unkr.. tOU aQlIIIO lutlm.llu tho lUll tUQue.1ed b, the pQhto ollleQ' ~ou' eonduel WIll be duomt<llo b, ,olunl'nd ,our OJMfllllng ptlVlI.gv ",.11 bv IU'~~ lUt' one ,,,, cl You' 10lUllllo lubmlllo chtm1ullO.llng untJ., Ih, Implttd Conhnlll. m., ~ V'I\lc,duUJd Iflto l't'Idtnct In I Cllmanel P'OIKuban 10' dl'lVlng ",hila undut Iho Inlluon" ollleohol 0' . (.Qntlol~ lublllnOl I cCfllly Ihlll hi VI "ad 1M Ibov' WI~ 10 I~ mo My 10 lubmlllQ chemlCIII.lllng Slgn,'ul, 010 . II t..~"dIng thllUlrnl.o:-tllhlll oporllu'O PflV\lt;e and VIW !he motorllt In opportu. A_!_~~ .15' 0,," _6:..J:.~qy_____ I hIV. boon Id~..d 011110 11>0.. 0 ~ 6~nllulI OII.lOIO')'J -{cJr.r--:.. ~co, ,~fO ,- 'v /" MOlonn r"lulud 10 Ilgn Itt., bOlng IdY,.,d SIgn.lu,u 01 Olhcnl 0.,. _6::..2~rd___.__'m_ _.., ,. 0.1. A"IOAVIl Hm oborG mOIO"" 'IlIIII' pl'CAtd undo' "'01110' dr.wlnO undlt'lhe Inlluer'<<J 01 .'<.ohol 01 I (Of'tllcMhtd lullllln(u In __lollllOn 01 Sefhon 3731 01 1M \'nlll(.lo Coda and IholD .UffJ 'fJIIonllt,l\! Olourl(h 10 LIII'n.", Ih.llhl .bowl "'010'.11 h4d blten drlWlno ope,.hng 0' In ICIUII ph"I,,1 cenllol 01 Iho mevnmonl 01. molol vlIluuv tIIIllIlu undut Iha ,"llulntA 01 lkohol 01' . lOnlloUtld 'vblllntAf 01 bolh .. 'hlllho lbove nlm~ molo',,,w,, "Iwolved 1M In ItCrdu/'ll.rt .htth fhII op".to, 0' PIIl.ng.' 01 In, "'hide IMolved or I pedelll'ln 18Q\Jtlod HlllmUll1 .11 medlcalllcllttr or... 'tllad 2 Th, IborG mOlO'III... '"qu"lud III .ubm.llo lhtlmlc.all.."ng.. IvlhOl.ted br 5fKltOt't 't>41 01 the V.hlCl. Cod. 3 Tho .bo..... molorlll "II Info'lTI'ld b, . poltt. ollt(nl 01 the ch'"t"e..I.." .1,",nOI c.onl......d I'" PI'IO"ph 3 Ind ~ .bov. . Tho atJuY'lllI:"mod mol'lII\1 '"'..m' 10 4uhm.llo chlmlCall.lI.no QUlC..tBJ<<l1L thl "'UIII to 'Ign 1hl' 101m It nal I ,,'uIII to 'ub",U 10 Ih. chemical 1..1. You mUlt ,11I1 gin the lftO~rl'l In oppor,u- nlly 10 1.~'lh. chemlcll t,,,.llltll IIvl...lng lhlt 101m It Ih. andl,td"II... op.t,Uat( oommllcltl milIa' .ehlcl. ....,.. 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RAYMOND Lo SMITll I IN THE COURT OF COMMON PLEAS OF Appellant I CUMBERLAND COUNTY, PENNSYLVANIA I V I I COHHONWBAL'rll OF PENNSYLVANIA, I NO. 94-3424 CIVIL TERM DBPARTMBNT OF TRANSPORTATION, I Appellee I IN RII APPILLAHT'S LICBNSB SUSPENSION APPEAL I.FORB SHEELY. P.J. ORDIR or COURT ,"t;l II day of S':V/ilfl.i~1994, AND NOW, this appellant's lieenee euepension appeal is hereby DENIED. By the Court, /~,!/lI/~ ~~d E. Sheely, P.J. Arthur To McDermott, Esquire For the petitioner Matthew llaeekler, Esquire For the Commonwealth Isld SEP 30 2 2G i'H '9~ L :-~ rlce of ':' ! 'IO~11,\h\ GiH1.', _;:.i~11!i [j;lL:!1 TY }~ ~~""h\j--"n,\ RAYMOND L. SMITH Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I I I I I COMMONWEALTH OF PBNNSYLVANIA, I DBPARTMENT OF TRANSPORTATION, I Appellee I v NO. 94-3424 CIVIL TERM IN RBI APPBI,UNT'S LICENSE SUSPENSION APPEAL BEFORE SHEELY. P.J. OPINION AND ORDER OF COURT Here we are aoked to decide whether the Department of Tranlportation hao proven that appellant'o actions amounted to a refulal to submit to chemical testing. A hearing wao held on Augult 31, 1994, from which the following Findingo of Fact were made. FINDINGS OF FACT 1. On June 2, 1994, Officer Gregory S. Martin observed the appellant swerve off the road and drive into a patch of weedo. Appellant subsequently drove back onto the road, and continued to weave and cross the double yellow dividing line. 2. Upon pulling over the appellant, Officer Martin detected a strong odor of alcohol on appellant'o breath and noticed appellant's bloodshot, glassy eyeo and olurred opeech. 3. Appellant wao placed under arreot by Officer Martin and transported to the Mid-Cumberland Valley Regional Polioe Station, where he was placed into the custody of Officer David E. Herb, a qualified basic intoxilyzer operator. 4. At the station, Officer Herb advised appellant of his Miranda righto and hie rights under the Implied Consent Law and explained the proper way to take a breathalyzer teot. NO. 94-3424 CIVIL TERM 5. However, appellant refuoed to sign the conoent form to submit to chemical teoting (Commonwealth Ex.1). 6. Officer Herb warned appellant that an outright refuoal to take the teot or any attempt to omoke, chew gum, vomit or otherwise interfere with the test would be deemed a refusal, which would reoult in the automatic revocation of hie license. 7. Deopite these warnings, appellant placed a clenched hand to his mouth, the Dame hand that had held a cigarette lighter, and blew into the mouthpiece of the breathalyzer. 8. The breathalyzer monitor read "interferant," which indicates that a chemical compound other than alcohol hao been blown into the mouthpiece. 9. After concluding that appellant had inhaled butane from hio lighter, Officer Herb charged appellant with refuoing to take the breathalyzer test. DISCUSSION To suotain a ouopension of a driver'o license under the Pennsylvania Vehicle Code, the Department of Transportation muot preoent prima facie evidence that the motorist wao l)arrested for driving under the influence of alcohol; 2) requeoted to oubmit to chemical teoting; 3)refuoed to submit tc ouch teoting; and 4) opecifically warned that a refuoal would result in the revocation of the driver's license. Department cf Tranoportation. Bureau of Driver Licensinq v. Garlan, 121 Pa, Commw. 400, 550 A.2d 873, Allocatur denied, 563 A.2d 499 (1988). "(A]nything oubotantially 2 NO. 94-3424 CIVIL TERM less than an unqualified, unequivocal aosent to take a breath teot io a refusal under section 1547 (a) of the Code," Commonwealth. Department of Transportation Bureau ~ ~icenoinq v. Orlando, 114 Pa.Commw. 441, 444, 5J8 A.2d 957, 958 (1988). As the trier of fact, it is thio oourt'o duty to determine the credibility of witnesoeo and the evidentiary weight. HAJ9and v. Commonwealth, 68 Pa.Commw. 541, 449 A.2d 862 (1982). In the preoent caoe, the Department of Tranoportation has clearly preoented prima facie evidence of three of the four elemento necesoary to suotain a license ouspenoion. First, appellant was arrested for driving under the influence. While on duty, Officer Martin oboerved the appellant owerve off the road, drive into a patch of weeds, and continue to drive erratically after pulling back onto the road. When Officer Martin oignalled appellant over to the side of the road, he detected the smell of alcohol on appellant'o breath and observed that the appellant's eyes were glaooy and blood shot and that his speech was olurred. At that point, the officer arreoted the appellant and tranoported him to the Mid-Cumberland Valley Regional Police station. At the police station, Officer Herb advised appellant of his Miranda righto and hie rights under the Implied Consent Law. He also provided detailed inotructiono on the proper way to take a breathalyzer teot. Officer Herb then asked appellant to oubmit 3 NO. 94-3424 CIVIL TERM to chemical testing, thuo, oatiofying the second element required to uphold a license ouspenoion. Next, Officer Herb teotified that he informed appellant that a refuoal to take the breathalyzer teot or any attempt to okow the breathalyzer test resulto would be dsemed a refuoal and would result in the revocation of his driver'o licenoe. Accordingly, the Department of Tranoportation has oatiofied the third requirement for sustaining a license ouopension. The controversy in the inotant case involves the final element of whether the appellant refused to oubmit to chemical teoting. As previously noted, anything leBo than an "unqualified, unequivocal aooent to take a chemical teot will conotitute a refuoal." Orlando at 444, 538 A.2d at 958. It is well-oettled that a refuoal to take a breathalyzer test need not be expreooed in wordo, but can be implied from a motorist'o actions. Commonwealth. Department of Transportation Bureau of Traff~ Safetv v. Mumma, 79 Pa. Commw. 108, 112, 468 A.2d 891, 893 (1983). Thuo, the Commonwealth Court in Orlando found a refuoal where a motoriot placed a pinch of chewing tobacco between his cheek and gums after a directive not to place anything in his mouth becauoe it would negate the resulto of the breathalyzer test. Orlando at 442, 538 A.2d at 957-58. Although the officer did not opecifically prohibit the use 4 NO. 94-3424 CIVIL TERM of chewing tobacoo, the Orlando court held that thio instruotion was sufficient and wao "all the warning the motorist was entitled to receive." ld. at 444, 538 A.2d at 958. The fact scenario in Orlando is diotinguiohable from a oituation where an offioer oimply told a motoriot not to open a can of ooda without implying that drinking the coda would constitute a refusal to submit to chemioal teoting. Commonwealth v. Wendler, ____ Pa.Commw. ____, 638 A.2d 377, (1994). Although the motoriot dioobeyed the trooper's instructiono not to open the soda can, the Wendler oourt found no refusal becauoe the motorist "did not dioobe}' any orders which explicitly pertained to the adminiotration of the breath teot." ld. at 379. By contrast, the appellant in the present case ignored Officer Herb'o direotive which specifically related to the adminiotration of the breathalyzer teot. Officer Herb warned appellant not to omoke, chew gum, vomit or otherwioe interfere with the breath that he wao required to blow into the breathalyzer. Although appellant did not smoke, chew gum or vomit, we believe that appellant was oufficiently apprised that inhaling butane from a lighter would amount to activity that would "otherwise interfere" with the breathalyzer test. We also note that Officer Herb's failure to remove appellant'o lighter before the test io of no oonsequence because the Vehicle Code doeo not imply that an officer hao a duty to 5 NO. 94-3424 CIVIL TERM confiocate all materials which could potentially interfere with the administration of a breathalyzer teot. Mumma at 112, 468 A.2d at 893. Accordingly, the Department of Tranoportation has preoented prima facie evidence of all four elements required to uphold a licenoe ouopension. ORDER OF COURT AND NOW, thio U%~~)) day Of_\;~,~c/ll1994, appellant's license suspenoion appeal is hereby DENIED. By the Court, 101 Harold B. Sheelv Harold E. Sheely, P.J. Arthur T. McDermott, Esquire For the Petitioner Matthew Haeckler, Eoquire For the Commonwealth lold 6 J {f -i~ 4f f j -...J