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Home My WebLink About95-01287 " , i' I l() 0- o <. " Ln en - k "" "- '6 '~ ~ ~~' \~ ~~~ ~~ ~ ~ , o ('j - l") ,~ (h ,~ ~ cr: ~,.. .... or. 1..1 ~.1 ~..I.t ~:f:\J/' 'a. t'~ L ~: 't., ~r:.." s . :".\ ~~: ~~~; '. ~ ,. t!~ .~ . -' ~; I ~:~ ,~:.i ,",' .;J~;' l..~ .:> ::w:: ...." .... o cO ...., <>:: -, = -1 Ii>- w ;.,J ~o Z...J ~ Cl ~ ;; i ~ <<l~~ ~ui~~I~ ~~J:2 UUl~ Z a: " <{w" ~J: . . . . WE DO HERUV CI!ATIFV THAT THI!: WITHIN 'I A TAUI! AND COR, AfeT copy OF TIlE OfUOIHAL rIlED IN nllS ACTIOfi IV A"ORNIIiY LAWIHfICI!i :~ACintlSrnlr'm""1il ... ..."''''~ ~""OJl" 10 1HI :.~~rl'l',..t, IlI:Il DAn '''ow ..."YlC....HtIlfOfllAA.IOOW&Jlf W.'5'f"""'b~'nXJ I' .""~.,--- MANCKE. WAGN.ER, HE~SHEY & TULLY MAR I 4 1995 . l'" . MAURA A. TUMAS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 95'. /<18" 7 Ot-i./...:f;u", LICENSE SUSPENSIOn APPEAL Petitioner v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent ORDER 01' COURT AND NOW, this j,()-oA day of mAIlc..h upon Petition of MAURA A. TUMAS, a hearing is set suspension Appeal for the J/. tA day of m A V .:g: 011 o'clock, L.m. in courtroom No. , 1995, on the License , 1995, at / , cumberland county Courthouse, 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 thirty (30) days prior to the date of said hearing. pursuant to section 1550(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 pending a final determination in this matter. BY TH COURT: t'CQi:\ ..., J. I 1",Q!J c.l., L\ nJ ' !JP'U [jJ1)If\~V ,J01/1' . "'t' ";)'.'~ ,l .: ii A' I,:., ~ fjll': '";.; ;'j.:',., 1..J'\'l;~".1 . ;":',;0 ~l, II ~ /" 56. II~ Ll II 02 HUH ". petitioner : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. LICENSE SUSPENSION APPEAL MAURA A. TUMAS, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent LICENSE SUSPENSION APPEAL AND NOW, comes the Petitioner, MAURA A. TUMAS, by and through his attorneys, MANCKE, WAGNER, HERSHEY & TULLY, who make the fOllowing averments in support of this License Suspenion Appeal: 1. ' Petitioner, MAURA A. TUMAS, hereinafter "Petitioner", is an adult individual and a licenses driver within the Commonwealth of Pennsylvania with 'a residence address of 8 Winchester Gardens, Carlisle, cumberland county, Pennsylvania. 2. Respondent, pennsylvania Department of Transporation, Bureau of Driver Licensing, has a mailing address at Transportation and Safety Building, Harrisburg, Dauphin county, pennsylvania. 3. petitioner received a notice of a license suspension on February lB, 1995, for an allegedly refusing to take a chemical test. 4. Petitioner's suspension is unlawful, invalid and null and void for the following reasons: A. Petitioner was not advised of her rights prior to being asked to submit to a chemical test; B. petitioner was not advised that she did not have a right to consult with counsel regarding chemical tests; C. petitioner was not under arrest at the time of the request; D. police did not have probable cause to stop her vehicle or a reasonable basis to request a chemical test. E. petitioner was not advised as to the procedure to follow in taking a chemical test; and F. The suspension is invalid under current case law. WHEREFORE, Petitioner respectfully requests that this Honorable Court enter a supersedeas on the suspension and qrant the relief requested. RespectfUllJ,-"'Ubmi tted, / ~ ..:::;;:Y P. R a agner, Esqu re I.D. 103 / 223~North Front street L Jlarrisburg, PA 17110 ~_~'(717) 234-7051 '----~ Attorney for Petitioner DATE: .1/N/96" I / VBRII'ICATIOH I verify that the statements made in the foregoinq document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. section 4904, relatinq to uns~orn falsification to authorities. /!?IU{ (/~ (r~--r(I/ht( ,,/ DATE: .3/1 t/ IjtJ f , . ( . , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 FEBRUARY 10, 1995 MAURA A TUMAS 8 WINCHESTER GARDENS 950328415000090 001 02103/1995 19616675 04/19/1962 CARLISLE PA 17013 Dear Motorist: As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL on 01/27/1995, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to comply with this sanction yoU are required to return any current driver's license, learner' s permit and/or temporary driver' s license (camera card) in your possession no later than the effective date listed. If YOU cannot comply with the requirements stated above, yoU are required to submit a DL16LC Form or a letter acknowledging the sanction of your driving privilege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Vehicle Code. Credit will not begin until all current driver's ,license productcs), the DL16LC Form, or a letter acknowledging your sanction is received in this Bureau. When the department receives your license or acknowledgement, it will send you ~ receipt. If yOU dQ not receive this receipt within 15 days contact the department immediatelY. Otherwise, You may not be given credit toward serving this sanction. Effective Date of Suspension I 03/17/l995, 12101 a.m. ******************************************************************** IWARNINGI If yoU are convicted for driving while your license is I Isuspended, the penalties will bel not less than 90 days imprison-( Iment and a $1,000 fine and an additional 1 year suspension. I ******************************************************************** Please see the enclosed application for restoration fee information. Exhibit A , . l , \ ~. , " ' , ' .' " . ~ ." . , , 950328415000090 You have the right to appeal to the Court of Common Pleas of the county of your residence within 30 days of the mail date (FEBRUARY 10, 1995) of this notice. Sending a COpy to this department of a timelY, filed appeal will stay the department's action pending a final decision by the court. The copy must be sent by certified mail tOI Room l03 Transportation and Safety Building Harrisburg, PA 17120 . Sincerely, ~ _ ~ ~- K....,-~ Douglas K. Tobin, Director BureaU of Driver Licensing SEND FEE/LICENSE/DL-16LC/TOI Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 Pittsburgh Area Philadelphia Area Harrisburg Area Toll Free AM TO 6:30 PM) - 412-565-5670 - 215-698-8100 - 717-787-3130 l- 800-932-4600 _ o-~,< """'- \ CBRTI~ICATB or SBRVICB I, P. RICAHRD WAGNER, ESQUIRE, of the law firm of MANCKE, WAGNER, HERSHEY & TULLY, hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the pennsylvania Rules of civil procedure, by depositing a copy of same in the united states Mail, postage prepaid, at Harrisburg, pennsylvania, on the /&~ day of March, 1995, at the address listed below: Matt Haeckler, Esquire Office of Chief counsel pennsylvania Department of Transporta~ion 103 Transportation and Safety Building Harrisburg, PA 17120~ BY'. "z-- P. Rich d ~aqnel:) Esquire , ,MANCKE, WAGNER, ,HERSHEY & TULLY / 2233 North Front street / /Harrisbur,9;/PA 17110 l / ~~,~?),,234-7051 ~_... _:"'~.-"",:-",--",_.,".''''''-':.. .. ..-1 I'" (.' 't .,- "MAS em e ...a sTfA Gj\ltDetJ ( C~41l-lll.E _R_NA ITAll 01111 TIlT UQIJIIlllATI -. , PIoAM ",1llttiMd 1IIo"OU'" _ undo'.....' ..,~ _...lnl_ 0/ olcoh<>l 01. _toIlOd.-.,.,.,...-" _1111", 'I ... VoNdo Codo, ., 1"\ "l ~11n'I roquo'~ lIIAl,ou .ubln" 10 . chomi<aIIl'l 01 L~ _~ 0' ",Ino ~ ohoatIl...........-1 , 1111 my dutr, At . pollCll o!floo" 10 Inlo,m 'OU 11I.1,1 ybU ,,"'.. .. .ub~1 You' opora1lno ptrriItD"'" '" .UIjlIftlIfd III. ' penod 01_ 1'"' ~ Th4I cona~lloIIaI righll'ou ha.- II. ..1",ln.1 del.ndanl, co",monl, ""own IIth.M"andl F\lghl."nduclng th. noh' 10 .......""'....,.. 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() I ..-. d' " , 'r ' ..\ SognalUr. 01 Offito', ..- 0..: ~,? ~ ,.... _ _ ".:".:.':'.", _, 1Iltl1ma. ~. UJ.tr.- '-/'.,...u. .;., 1'If' ,.. "r\!. I, ",,*,"1' ..luaod 10 .!gn. .Ill< boinQ .cMlId, ' .. '" ... Ai . ~';,J " SlgnolUrl 0/ Officlf: 0.11: ' ' . ..., _l,!{ AFFIDAVIT '/ ~ I. Tho obOvo moIOIIl,...1 pIacod undo< ~'IIOnd' driving unclt, thelnllutnct at ~ 0'. _~IUb&\ondI1n Wll.......ol ~ ~.!'" . aq Vo/Ilde Code, and lhll. ...,. ........... grou .10 bo1iIvelhallh. above .....".1 had "- ~"..., .....IOIIg Olin..., ..~----.... : J\'4 ... ..-101. ......, vthicll whill undat 1I\.lnllllonCII 01 Alcohol 01 . tonbolocl .ubt\lllal 01 0011\, " ,I ~ ' A ThaI'" _".."od "",tortll wllln"""" In.n ooddtftlln "'"'" ... opor- 01 po'lIngetollf'/ ""do In....vod 01 · ,..clt1PR...... <, __ II. ........1...11 0' .... ~I\od, ',j Z. The obOvo moIOII...... ..quulad" .ull""llo thtrnltolll'lIIl1l11 .ull101l1ad by - 1&4701... Vohldl Coclt, S. Tho obOvo moIOIIl,...llnlontlld b1. police 01_ 011hl dlemltllll.I...,nlng. conloinld In ...rag..p/l S.nd 4 ....., " 4, Tho obOvo no""" motorill ""'lid 10 .ubtnl! 10 dI""IcaI...~ng, " " OFfICER NOTE. n.o,olullllO .1gn thl.lorm I. no' . ,",u...1 10 .ubmlllo IhI c........, 'ilL You ..u...lnl gtvo... _lOtIoI..........' I nht 10 ......... ......1co1...'.III1'I'IIo..lng Ihl. lo.m, II \hi Indlvldual... opo..Ung I OOlIImarclll OIOlor ........ ""II II........, , ; llcio1tol or . _\to/loci .ubo......ln th.1r .y.l.m, you ",u.I.'.o ""'pl'l.thO'''II''~Id. 0111I1. ,_, ~ IUIIC_O"""" Off>co< SOgn.... - '1/./ - 10 .,OAI III' tlIJ ::x DU AlII ro ~ Olllell N.mo 'T"LM ' e Ff ~ttlt m ~.- i IlodDO Num... 10 JuriadocllOn: ~It )P4...<~I~ Pho" t:llJJ~l2.::O" "7 . tJaoI,ngAdlnll ....s.'L\lE.. ~"4.I"" .......-Irol1' PD';" '..<, (.,<4"1 ~ CA4."'....... lJ.u' .....j,:,,/.,;~ M~"'I\NI"'S'U4.(. PA '"1oS'f.i~;;;Ii~ Noll' Nr/ ....-llatI. noI....,...d by'" oIIlcltVII.'-*' lie ......-.. .i~ 1IpA,.1I IIlMI and aaodlod horelO, Thol ~ IIIoUId ~ lite .......,.. ' i .- _"",ai_III ""'IO/'f 10 pr_ .....-11 III wllidI you..-...... ' " ~1ONA1 WPPllU 0< TlU5'ORlI IIoAV B( alCURJ:D 8V couPlFlIHO IOIIlI O~II'A f~ FanrOld 10: OIpIIlmtnl 01 T,anopart.,lon , Bu.... III DrtAr Ucenalng P,O. Boa22P Hlr1laburv. PA 17105 na ronlulAY IE DUPLICATED , i , Ii !,; I!, COl11monwealth '5' EXHIBIT l.-PH '.- .-.- - "-. '-~:'~:;"."Y"4. A\WVU'-.." _~. !..",~.~3)"'~~'.'U,"" ito",;,;.,l.;)1 ...il:'..",.. "IHI~ GJIIH:". I~ 0& "fIl~"W "Will"" Oia.J11~ '., .. I A 11n.l III AilHS8ilH '8ilNDVM 'il>lONVII'J ~!P<'!llUV ~. NOI10'f' I1H1 "'1 01114 1VNIOlijO a.u "0 AdOO 10... ,.,00 ONV DOlI! If II NIH!IM IH1 lWHJ. "411UIO AUUIU 00 1M bn+JjIlMYl .. . ,- - ,- J:S: IN m :l> a lIlJl Z, w C'l J: '"' > I ~ !11 ~ ~~R>~~ ~~~G) ~ r- Z o r- m ,~ <Xl j ~ t (g. (" "- ,,~ . '<I )) ~ " '. ~ Petitioner . . . . . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA KAURA A. TOMAS, v. : NO. 1287 CIVIL 1995 . . LICENSE SUSPENSION APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION . . . . Respondent ORDER or COURT AND NOW, this ..:3(2). day of /17/:1 Y , 1995, upon request of Petitioner for a continuance, with no objection from Respondent, the hearing for May 4, 1995, at 3:00 p.m. is hereby continued until the X' 't/) day of ~L.( 1\/ f_ , 1995, at .3: c) 0 o'clock I) .m. in Courtroom No. 1 of the - ' cumberland county courthouse, Carlisle, Cumberland county, pennsylvania. All other provisions of the Order of March 20, 1995, shall remain in effect. BY THE COURT: IL./ (. ,\/[ / J. \ c5 I t ~ - '!:> / <;.t.J..) -1-' ,P; (CJ ' CO L-IJ' \~D I ; ~ .. \'1" , \' \' \(\ \ c)~\ ' i MAURA A. TUMAS, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-1287 CIVIL TERM vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, Respondent LICENSE SUSPENSION APPEAL IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL BEFORE. SHEELY. PJ. ORDER J,I........t.(} , 1995, petitioner's license suspcnsion ill AND NOW, this '2 ~ day of appeal is DENIED. BY THE COURT, LJcu~C l- -- Harold E. heely, .. ce: Maura A. Tumas Petitioner ~ t.,,~~,.., (l.~...(.rl 7/.:J. 'I/'is-. \J ~,):). Matthew Hacekler, Esquire For the Dept. of Transportation :sld ~ :';"', :c "- In ,"1 tll. t;. I '. (V) l..;,....,J G \,' --;} " vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 95-1287 CIVIL TERM MAURA A. TUMAS, Petitioner COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION. Re~pondent LICENSE SUSPENSION APPEAL IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL BEFORE. SHEELY. P.J. OPINION AND ORDER OF COURT The present ease arises as the result of petitioner's receiving notice of a license suspension for allegedly refusing to take a chemical test. Petitioner has appealed this suspension on various grounds. FINDINGS OF FACT " We held a hearing on June 8. 1995, from which we make the following findings of fact:' 1. On January 27. 1995, at approximately midnight. Officer Jeffrey Potteiger of the Sliver Springs Township Police was advised to investigate a driver suspected of Dut. traveling on Route 11. 2. Officer Potteiger intercepted the vehicle on Route 81 South nnd made contact with the driver, whom he identified as petitioner. Maura Tumas. 3, Officer Potteiger arrcsted the petitioner after she failed the field sobriety test, and then the officer transported her to the Lower Allen Township Police Department. 4. For purposes of this hearing, petitioner stipulated that Officer Potteiger had probable eause to stop the vehicle and reasonable basis to request breath and urine samples. 'petitioner did nolleslity allhe hearing, , \ 95.1287 CIVIL TERM 5. Petitioner requested to speak with her attorney ntthe West Shore Booking Center, where she was processed. 6, Officer Potteiger read petitioner the Implied Consent Form (Commonwealth Exhibit #1), part of which contains instructions that petitioner did not have the right to speak with an attorncy rcgarding the chemical test, 7. Orticer Pottciger signed the form to indicate that he read it to her; petitioner, who did not question the officer about the form, also signed and dated it. 8, James R. Akers, an officcr of the Cumberland County DUI Department for nine years. administered the field sobriety test and breathalyzer test to petitioner. 9. Prior to the testing, petitioner asked if she could call a friend to pick her up. but when Officer Akers discovered that petitioncr's friend was her former employer. an atlorney, he would not let pctitioner make the call herself, 10. Petitioner's former employer. Mr. Norman Hetrick, testified that he heard Officer Akers tell Petitioner, "All right, babe, I'm not going to let you talk to him," when he returned to the phone after retrieving some paper to write directions to the booking center. t 1. The Commonwealth presented Exhibit #2, a videotape of the processing of Maura Tumas by Officer Akers. 12. Officer Akers administered the field sobriety test and then directed petitioner to the breathalyzer maebine. 13. Officer Akers is certified to operate the breathalyzer device and has administered the chemical test ROO to 900 times, 14. The machine was working properly on January 27, 1995, 15, Orticer Akers explained to petitioner that if she refused to take the test, she would 2 95.1287 CIVIL TERM lose her license for one year as a civil penalty, and the criminal prosecution for DUI would continue. 16. Officer Akers testified that the device would register a tone as long as there Is " sufficient breath, and when there is a sufficient sample, a zero appears to the left of the decimal point on the screen, which Is not visible to petitioner. 17. Officer Akers testified that it normally takes four to ten seconds to adequately record the sample because of normal fluctuations, and that the slope meter, which registers only when sufficient breath is received, has to register, several identical readings of the reporting sample. 18, Officer Akers directed petitioner to take a normal breath and blow into the tube, but he did not explain how many seconds to blow, nor did petitioner ask any questions about how the device works. 19. When petitioner did not produce sufficient breath to provide a reading, Officer Akers told petitioner that she was not blowing hard enough, that she should continue to blow until he told her to stop, and that failure to follow direetiClns constituted a refusal. 20. Each time petitioner breathed into the tube, Officer Akers kept instructing her, .Continue to blow," even when the tone sounded. 21. Officer Akers administered the test five times, but petitioner did not produce a sufficient breath sample. 22. Based on his observations of her and the device, Officer Akers believed petitioner would stop breathing when she heard the tone register and only hold the tube In her mouth. DISCUSSION Petitioner has appealed her driver's license suspension on the following grounds: 1) petitioner was not advised of her rights prior to being asked to submit to a chemical test; 2) 3 95-12117 CIVIL TERM petitioner wns not advised thnt she did not hnve n right to consult with counscl regnrding chemicnltests; 3) pctltloner wns notundcr nrrestnt the time of the request; 4) petitioner wns not ndvised ns to the procedure in tnking n chemical test; nnd 5) the suspension Is invalid under current ense law, The Department of Trunsportation (DOT) imposed a one year suspension of petitioner's operator's license for refusal to take n breathalyzer testns required by the Motor Vehicle Code, 75 Pn,C,S. Section 1547(b): (b) Suspension for refusal. (1) If any person placed under arrest for a violation of section 3731 (relating to driving under Influence of nlcoholor controlled substance) Is requested to submit to chemical testing and refused to do so, tbe tcsting shall not be conducted but upon notice by the police orticcr, the department shall suspend the opcrating privilege of the person for a period of 12 months. (2) It shall be the duty of the police orticer to Inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing. (3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons. In cases Involving the suspension of n driver's license for rcfusalto submit to chemical testing, DOT must prove: 1) thatlhe licensee was placed under arrest for driving under the influence; 2) that he was requested to submit to chemical testing; 3) that he was informed that a refusal to submit to such testing would result in n suspension of his operating privileges; and 4) that the licensee refused to submit 10 the test. Denarlmenlof Transportation. Bureau of Driver Licensin\,! v, Pestock, 136 Pa,Commw. 694. 697.911, 5114 A,2d 1075. 1077 (1990), Thc failure to 4 95.1287 CIVIL TERM supply a sufficient breath sample is a per se refusal. Department of Transportation. Bureau of Driver Ucenslnl! v. Kilrain, 140 Pa.Commw. 484, 490, 593 A.2d 932, 935 (1991), appeal denied, 529 Pa. 625, 600 A,2d 541 (1991). Once DOT has established that the driver failed to submit to ; I ; the chemical test, the burden then shifts to the driver to prove by competent evidence that she was physically unable to take the test or not capable of making a knowing and conscious refusal. Department of Transportation. Bureau of Driver Licensing v. Norton, 103 Pa.Commw. 78, 81, 519 A,2d 1085, 1087 (1987). We now consider the issues that petitioner has raised in light of the above standard. In her first two arguments petitioner claims that she was not advised of her right prior to being asked to submit to a ehemlealtest and specifically, that the officer failed to advise her that she did not have a right to counsel regarding chemiealtests. Our supreme court clarified in Department of Transportation. Bureau of Driver Licensing v. Ingram. _ Pa. _, 648 A.2d 285 (1994), that a motorist must be Informed that his driving privileges will be suspended for one year if he refuses chemical testing, and further, that his Miranda rights do not apply to chemical testing. Id. at 294.295. In the Instant case, the following factors provide sufficient proof that petitioner was advised of her rights according to the holding oflnl!ram: 1) Oflicer Potteiger testified that he read to petitioner the Implied Consent Form, Commonwealth Exhibit #2, which explains the motorist's rights; 2) Officer Potteiger signed the form, indicating that he read it to her; 3) petitioner signed the form, and there was no testimony to reveal that petitioner may have been confused: and, 4) Officer Akers explained during the videotaped processing of petitioner that a refusal to take the test results in an automatic driver's license suspension for a period of one year and that not following directions constitutes a refusal. 5 95.1287 CIVIL TERM Petitioner next contends that she was not under arrest at the time of the request to submit to chemical testing. However, petitioner stipulated at the hearing that Officer Potteiger had reasonable basis to request the breath sample. Beeause the driver must be arrested for driving under the influence prior to the officer's request to the driver to submit to chemical testlng,Z petitioner has impliedly stipulated to her arrest. Additionally, DOT presented unrebutted testimony that petitioner was placed under arrest before her transPQrtto the booking center. Petitioner's fourth argument is that she was not advised as to the procedure in taking a chemical test. At the hearing, petitioner presented further argument that Officer Akers interrupted petitioner during her breath test by telling her, "Continue to blow," even when the tone sounded. It is petitioner's position that Officer Akers was initially upset with her because she attempted what the officer calls "subterfuge" by asking to call a friend for a ride, and the friend turned out to also be an attorney. Whether or not Officer Akers may have been angry with petitioner has nothing to do with the issue of petitioner's Insufficient breath sample, as long as the evidence shows that the officer met the conditions set forth previously. Petitioner relics upon Barncs v. PennDOT. 19 D & C 4th (1993) In support of her appeal, in which the court revcrsed the drivcr's conviction for failure to supply the two required breath samples. We find Barnes distinguishable from thc facts here. It is true that in Barnes the court took Into consideration that the driver was not told how many seconds to blow. rd. at 526. The officer, though, said "okay" even before the tone sounded, llb whereas in the present case, Officer Akers told petitioner to keep blowing even after the tone. He explained at the hearing 2See 75 Pa.C.S.A. llI547(b). 6 95.1287 crVIL TERM that the slope meter nccds sevcral idcntlcal readings to registcr the hlood alcohol contcnt, which can takc anywhcrc from four to ten scconds. Although hc did not explain thc mechanics of the dcvicc to petitioncr, she did not ask any questions nhout thc dcvicc nor do wc find any cnsc law that statcs thc officer must cxplain thc workings of thc dcvlcc. Morcovcr, thc Barncs court hclicvcd that nppcllant, n small womnn (ns is pctitioncr), was cxtremcly distrnught throughout the tcst and was physicnlly unable to producc thc rcquired sccond brcath sam pic.' Id. at 527. In thc prcscnt case, once DOT met its hurdcn of proof that pctltioacr did not providc a sufficient breath samplc, thc burden shiftcd to pctitioncr to prove that shc was physically incapablc of giving a breath samplc or not capablc of making a knowing and conscious refusal. Shc did not do so. The videotape and tcstimony show that Officcr Akcrs advised petitioncr scvcral times that she was not hlowing hard enough and that shc should kcep blowing until she was told to stop. Officcr Akers believed when petitioner hcard the tonc, she mcrely held the tube in her mouth whereas petitioner claims the orticer distracted her by directing her, "Continue to blow" after the tone sounded. The solc issuc is whcther or not petitioner providcd sufficient breath. A "good faith" cffort to supply a breath sample is not a recognizablc excusc for failing to complete the brcnthnlyzer test. Dcpartmcnt of Transportation v. Bcrta, 120 Pa.Commw. 558, 562.63, 549 A.2d 262, 264 (1988). Petitioner did not provide n hreath sample, and she did not prove that shc was physically unable to or not capahle of mnking a conscious refusal. In conclusion, pctitioncr hns nut presentcd a recognizahlc dcfensc under current case law to rcbut n pcr sc refusal to supply n hreath sample. 'The first sample registered nt .21. Pctitioncr In thc case at har did not supply the first sample. 7 , . 95.1287 CIVIL TERM ORDER AND NOW, this .J y ell day of 1lU / Y ,1995, pctitioncr's license suspcnsion appeal Is DENIED. BY THE COURT, Harold E. Sheely, P.J. ce: Mauro A. Tumas Petitioner Matthew Haeeldcr, Esquire For the Dept. of Transportation :sld ., 8