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Home My WebLink About00-0245 civil termSU ANN DIFFENBAUGH, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, RESPONDENT 00-0245 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this ~" day of June, 2000, the within appeal from the suspension of petitioner's driving privilege for a period of one year, IS DISMISSED. By the COurt,- ~y Hubert X. Gilroy, Esquire Edgar B. Bayley, J./ For Petitioner George H. Kabusk, Esquire For Respondent :saa SU ANN DIFFENBAUGH, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PEN N SYLVAN IA, RESPONDENT 00-0245 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 19, 2000:-- Petitioner, Su Ann Diffenbaugh, filed this appeal from the suspension of her driving privilege for one year by respondent, Department of Transportation of the Commonwealth of Pennsylvania, for refusing to submit to a chemical test pursuant to Section 1547(b)(1) of the Vehicle Code, that provides: If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. A hearing was conducted on June 5, 2000. We find the following facts. On November 10, 1999, Carlisle Police Officer Matthew Kennedy was dispatched to a hit- and-run accident involving damage to a parked car. He located petitioner, who he 00-0245 CIVIL TERM determined had caused the accident and had left the scene. He then determined that there was probable cause to believe that petitioner was under the influence of alcohol to a decree that rendered her incapable of safe driving. Officer Kennedy arrested petitioner for driving under the influence and took her to the Cumberland County Booking Center. At the center, Officer Kennedy read petitioner her rights under the Implied Consent Law and asked her to take an Intoxilyzer test? Petitioner consented to taking the test, which was performed by a booking agent, Daniel Lutz. Agent Lutz testified that the machine was calibrated and operating properly. He instructed petitioner of how to blow into the mouthpiece. As a videotape was running, petitioner blew into the mouthpiece many times but did not blow enough air into the machine to register a valid test. Agent Lutz and Officer Kennedy repeatedly told petitioner that she was placing the mouthpiece on the roof of her mouth, which prevented a sufficient amount of air from entering the machine. They repeatedly told her how to blow into the mouthpiece properly. When'petitioner continued to blow an insufficient amount of air into the machine, Agent Lutz changed the mouthpiece, and again instructed her how to properly blow into the machine. Petitioner, however, continued placing of the mouthpiece on the ~ Section 1547(b)(2) of the Vehicle Code requires that, "[i]t shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing." The warnings Officer Kennedy gave to petitioner included telling her that her driving privilege would be suspended for one year if she refused to submit to chemical testing. -2- 00-0245 CIVIL TERM roof of her mouth while haphazardly blowing an insufficient amount of air into the machine. The machine had printed three test tickets at 2:41 a.m., 2:45 a.m. and 2:51 a.m.; however, it designated each test as a deficient sample. At 2:50 a.m., Agent Lutz informed petitioner that her conduct constituted a refusal to submit to the test. Petitioner testified that she tried to blow sufficient air into the machine but was unable to do so. She acknowledged that there was nothing medically wrong with her and that she had been advised of the consequences of failing to provide a sufficient amount of air to register a valid test result. 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 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, __. Pa. ,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 -3- 00-0245 CIVIL TERM 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). If DOT establishes refusal by utilizing the testimony of the administering officer, it need not prove that the machine was in proper working condition at the time of the test. Books; Budd. That is, once DOT establishes refusal, the operability or suitability of the breathalyzer is not at issue. Books; Budd. Alternatively, DOT 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. The Court noted that: DOT, for the purposes of establishing refusal, introduced into evidence two printouts from the breathalyzer which indicated that Pappas prSvided insufficient breath samples during the chemical tests conducted by Officer Mentesana. Regarding the calibration of the machine, DOT presented the testimony of Officer Mentesana who stated that the breathalyzer had been calibrated within thirty days of the date on which it was administered to Pappas. Further, although Pappas stated she had respiratory problems, no medical evidence of such problems was presented by the defense. (Footnote omitted.) In Pappas, the Commonwealth Court reinstated a suspension of driving privileges which the trial court had reversed on a finding that DOT had failed to present documentary evidence that the breathalyzer was properly calibrated. In the case sub -4- 00-0245 CIVIL TERM judice, testimonial evidence was presented that the Intoxilyzer was properly calibrated and working properly. It is obvious from viewing the videotape that petitioner was not blowing a sufficient amount of air into the machine to register a valid test. DOT has met its burden of proof, which requires that we dismiss petitioner's appeal from a one-year suspension of her driving privilege for not blowing a sufficient amount of air into the Intoxilyzer to register a valid test. ORDER OF COURT AND NOW, this ~°t,~'"' day of June, 2000, the within appeal from the suspension of petitioner's driving privilege for a period of one year, IS DISMISSED. B.-'~agley, Edgar J. Hubert X. Gilroy, Esquire For Petitioner George H. Kabu~sk, Esquire For Respondent :saa -5-