The URL can be used to link to this page

Home My WebLink About2007-1487 Civil SONDRA MAE SCHREINER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER’S LICENSING : 07-1487 CIVIL TERM IN RE: APPEAL FROM DRIVER LICENSE SUSPENSION OPINION AND ORDER OF COURT Bayley, J., August 17, 2007:-- Petitioner, Sondra Mae Schreiner, filed an appeal from the suspension of her driving privilege for one year for refusing a breath test by failing to give two valid breath samples following her arrest for driving under the influence. A hearing was conducted on August 13, 2007. We find the following facts. On October 26, 2006, at approximately 4:10 a.m., Officer Matthew Claeys of the Lower Allen Police went to Society Hill Drive in Lower Allen Township where it had been reported that a person was passed out behind the wheel of a vehicle. He found the vehicle in a lane of Society Hill Drive. The headlights were on; the motor was running; and the windows were up. A woman was in the driver’s seat. No one else was in the vehicle. Officer Claeys knocked on the driver side window and yelled without getting a response. He did that several more times until the woman looked up. The Officer opened the driver’s side door and asked her if she was okay. She said that she was just talking to her children. Her speech was 07-1487 CIVIL TERM slurred and her eyes were bloodshot and glassy. The Officer smelled an odor of alcohol on her breath. He asked her for her license. She could not find it and said that it was in her purse. She handed the Officer the purse and told him to get her license, which he did. She was Sondra Mae Schreiner. Officer Claeys asked her where she was coming from and she said he should know because he pulled her over. The Officer had her get out of the vehicle and she almost fell. He gave her a preliminary breath test which was positive for alcohol. He felt that it was unsafe to conduct field sobriety tests. Believing that Schneider was under the influence of alcohol to a degree that rendered her incapable of safe driving, Officer Claeys arrested her for driving under the influence. He then checked her mouth and took her to a booking center where he read Implied Consent warnings to her. Schreiner consented to a breath test. She had been under the continuous observation of Officer Claeys for well beyond twenty minutes. With Officer Claeys present, and with a qualified breath test operator using an Intoxilyzer 5000, Schreiner blew one valid breath sample. Despite clear instructions and repeated opportunities, she did not blow sufficient breath to register another valid sample because she kept starting and stopping rather than continuously 1 blowing into the mouthpiece for a sufficient time for it to register a valid second test. __________ 1 At the hearing, notwithstanding that she had blown one valid breath sample, Schneider blamed her failure to blow a second valid sample on a tongue ring that she claims was in her mouth at the time. We watched the videotape of the testing and could see nothing that would support her position that any tongue ring impeded in any way her ability to blow an adequate amount of breath into the machine to register a valid test. -2- 07-1487 CIVIL TERM Section 1547(b)(1) of the Vehicle Code, provides: If any person placed under arrest for a violation of section 3802is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police the department shall suspend the operating privilege of the officer, person ... (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 a 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 Commonwealth, Department of Transportation v. Schraf, Code. 135 Pa. Commw. Pappas v. Commonwealth Department of Transportation, 246 (1990). In 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 where a defendant is well established law that , when taking a does not exert a total conscious effort, and thereby breathalyzer test, 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 Even a licensee’s good faith attempt to comply with 404, 406 (1982). 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 -3- 07-1487 CIVIL TERM 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 (officer’s of Driver Licensing, 109 Pa.Cmwlth. 25, 530 A.2d 972 (1987) 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); (officer’s testimony that licensee failed to Budd tighten his lips around the mouthpiece of the breathalyzer was sufficient to prove refusal) . . . . 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. (Emphasis added.) Officer Claeys had probable cause to arrest petitioner for driving under the influence. While petitioner blew one valid breath test on the Intoxilyzer 5000, she did not exert a total conscious effort to blow a second sufficient sample. Failing to provide a second sufficient breath sample constitutes a refusal to take the test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2007, the appeal of Sondra Mae -4- 07-1487 CIVIL TERM IS DISMISSED. Schreiner from the suspension of her driving privilege for one year, -5- 07-1487 CIVIL TERM By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Shawn M. Curry, Esquire For Sondra Mae Schreiner :sal -6- SONDRA MAE SCHREINER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION, BUREAU OF : DRIVER’S LICENSING : 07-1487 CIVIL TERM IN RE: APPEAL FROM DRIVER LICENSE SUSPENSION ORDER OF COURT AND NOW, this day of August, 2007, the appeal of Sondra Mae IS DISMISSED. Schreiner from the suspension of her driving privilege for one year, By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Shawn M. Curry, Esquire For Sondra Mae Schreiner :sal