The URL can be used to link to this page

Home My WebLink About01-5452 CIVILSONIA R. BIXLER, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT 01-5452 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., February 11, 2002:-- Petitioner, Sonia Bixler, filed this appeal from the suspension of her driving privilege for one year for failure to compete a test of her breath following her arrest for operating a motor vehicle while under the influence of alcohol. A hearing was conducted on February 4, 2002. We find the following facts. On July 14, 2001, Trooper Keir Dissinger of the Pennsylvania State Police, arrested petitioner for driving under the influence of alcohol on Interstate 81 in Cumberland County. Trooper Dissinger took petitioner to a booking center, where he read to her the following warnings: 1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to section 3731 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of BREATH. 3. It is my duty, as a police officer, to inform you that if you refuse to submit to the chemical test your operating privilege will be suspended for a period of one year. 4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to 01-5452 CIVIL TERM speak with a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil, not a criminal proceeding. b) You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree to submit to the test requested by the police officer your conduct will be deemed to be refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance. Petitioner signed the form on which these warnings were written acknowledging that she had been so advised. Trooper Dissinger then turned petitioner over to a booking agent, David Heckard. After observing defendant for twenty minutes, Agent Heckard started to conduct a test of petitioner's breath on an Intoxilyzer 5000. The certified unit was calibrated and working properly. In a procedure that was videotaped, petitioner was told that she would have to give two breath samples. She was instructed to make a tight seal around the end of the mouthpiece, and blow into it until she was told to stop. Petitioner took the mouthpiece at 2:19 a.m., and started to blow. She did not blow enough air into it to register even one beep on the machine. She was repeatedly instructed on how to blow a sufficient amount of air into the machine. After blowing five separate times, and not registering any air into the machine, Officer Heckard read her the same warnings as had Trooper Dissinger. Petitioner asked Officer Heckard how many times she had to blow into the machine. He told her that he -2- 01-5452 CIVIL TERM could already have deemed a refusal, but that he was going to "give her another shot." Officer Heckard had petitioner blow four more times into the mouthpiece, none of which registered any air into the machine. During this period, he again repeatedly instructed her on how to blow air into the machine sufficient to register a valid breath test. At 2:37 a.m., Officer Heckard told petitioner that he deemed her conduct a refusal to take a breath test. Section 1547(b)(1 ) of the Vehicle Code, provides: If any person placed under arrest for a violation of section $?$1 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. (Emphasis added.) The regulations of the Department of Transportation at 67 Pa. Code § 77.24(b) include: The procedures for alcohol breath testing shall include, at a minimum: (1) Two consecutive actual breath tests, without required waiting period between the two tests. The failure to perform two tests as required by this regulation warrants the suspension of an operator's driving privilege under Section 1547(b)(1 ) of the Vehicle Code. Commonwealth, Department of Transportation v. Schraf, 135 Pa. Commw. 246 (1990). In Pappas v. Commonwealth Department of Transportation, 669 A.2d 504 (Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated: In order to establish a prima facie case in support of a Section 1547(b) license suspension, DOT must prove inter alia~ that the licensee -3- 01-5452 CIVIL TERM refused to submit to chemical testing. DOT need not establish that the licensee objected to taking the test. Yi v. Department of Transportation, Bureau of Driver Licensing, 164 Pa. Cmwlth. 275, 642 A.2d 625 (1995). 'It is well established law that where a defendant, when taking a breathalyzer test, does not exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test.' Appeal of Budd, 65 Pa. Cmwlth. 314, 442 A.2d 404, 406 (1982). Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample. Yi. A refusal is supported by substantial evidence where the breathalyzer administrator testifies that the licensee did not provide sufficient breath. See Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth.), petition for allowance of appeal denied, 542 Pa. 637, 665 A.2d 471 (1995) (officer's testimony that licensee did not make a 'proper effort' was sufficient to meet DOT's burden regarding refusal); Books v. Department of Transportation, Bureau of Driver Licensing, 109 Pa. Cmwlth. 25, 530 A.2d 972 (1987) (officer's testimony that licensee did not provide sufficient breath and stopped blowing as soon as he saw the machine register was sufficient to meet DOT's burden); Budd (officer's testimony that licensee failed to tighten his lips around the mouthpiece of the breathalyzer was sufficient to prove refusal) .... [D]OT may establish refusal under these circumstances by presenting a printout form from a properly calibrated breathalyzer indicating a 'deficient sample.' Department of Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa. Cmwlth. 185, 624 A.2d 792 (1993); Pestock. In this situation, proper calibration may be proven by either documentary or testimonial evidence. See Lohner (calibration established by stipulation); Pestock (calibration established by testimony of administering officer); see also 67 Pa. Code § 77.25(c) ('The certificate of accuracy shall be the presumptive evidence of accuracy referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol or controlled substance).'). Once DOT has presented evidence that the licensee failed to provide sufficient breath samples, refusal is presumed and the burden of proof then shifts to the licensee to establish by competent medical evidence that he or she was physically unable to perform the test. Pestock. (Emphasis added.) In the case sub judice, petitioner, after being warned of the consequences of -4- 01-5452 CIVIL TERM refusing to submit to a test of her breath, failed to provide sufficient breath into an Intoxilyzer 5000 to register even one test. After being warned again of the consequences of refusing to give a sufficient breath sample to conduct a valid test, petitioner again failed to blow a sufficient amount of air into the machine to register even one test. Two test tickets were printed out, each registering a deficient air sample. Trooper Heckard then deemed that there was a test refusal. Not only did petitioner fail to provide a sufficient sample of breath to register two valid tests, it is obvious from looking at the videotape, that she made no good faith effort to comply. She has presented no medical evidence that she was physically unable to perform a test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2002, the appeal from the suspension of a driving privilege, IS DISMISSED. By the Court, Edgar B. Bayley, J. John B. Mancke, Esquire For Petitioner George H. Kabusk, Esquire For Respondent :saa -5-