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Home My WebLink About2007-6801 Civil COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, DEPARTMENT OF : CUMBERLAND COUNTY, PENNSYLVANIA TRANSPORTATION : : V. : : DONALD E. MALEHORN : 07-6801 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., February 26, 2008:-- Pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547(b)(1)(ii), PennDOT suspended the driving privilege of Donald E. Malehorn for eighteen months for failure to submit to a chemical test following his arrest for driving under the influence. Malehorn filed this appeal upon which a hearing was conducted on February 13, 2008. We find the following facts. On October 8, 2007, at approximately 8:44 p.m., Officer Warren Cornelious, a Camp Hill Borough Police Officer, was in a patrol car stopped at a traffic light facing st north on 21 Street at the intersection of Route 15. He saw a vehicle proceeding west on Route 15 and into an intersection with the green light. The vehicle stopped in the middle of the intersection and then made an illegal left turn crossing through the st eastbound lane of Route 15 onto 21 Street southbound. Officer Cornelious turned his vehicle around and stopped the vehicle, which was driven by Donald Malehorn. Officer Cornelious smelled an odor of alcohol, and he saw that Malehorn had bloodshot eyes and had urinated himself. Malehorn said he had one drink. Malehorn got out of his 07-6801 CIVIL TERM vehicle and did a walk-and-turn test and a one-leg stand test. He failed both. Officer Cornelious arrested him for driving under the influence at 8:58 p.m. He took him to a booking center where they arrived at 9:30 p.m. The officer read the Implied Consent warnings to Malehorn. Malehorn signed the consent form and agreed to take an Intoxilyzer test. From the testimony of the booking officer, Tonya Roe, and our viewing a video, we find that the booking officer repeatedly explained to, and showed Malehorn how to blow into the mouthpiece of the Intoxilyzer 5000. Malehorn repeatedly failed to blow any air into the mouthpiece. He only blew enough air into the mouthpiece one time sufficient for the machine to make a sound, which, when sufficient air is being blown, sounds several times before a measurement of a valid breath sample is registered. At no time during his repeated “attempts” to blow into the machine did Malehorn state that he had any type of breathing problem or physical problem, nor did he show any signs of distress. Whistler v. Commonwealth of Pennsylvania, Department of In Transportation, Bureau of Driver Licensing, 882 A.2d 537 (Pa. Commw. 2005), the Commonwealth Court sated: . . . DOT has the initial burden of establishing that: (1) the licensee was properly stopped by police; (2) he was requested to submit to testing; (3) he refused; and (4) he was warned that a refusal would result in a suspension of his license. . . . Once DOT has met its burden, the licensee has the obligation to establish that his refusal was not knowing or that he was physically unable to take the test. (Citation omitted.) -2- 07-6801 CIVIL TERM Malehorn raises one issue, maintaining that he has shortness of breath that rendered him physically unable to perform the Intoxilyzer 5000 test on October 8, 2007. He presented the testimony of James Toth, who is a licensed respiratory therapist. Toth had Malehorn perform pulmonary lung function tests on February 5, 2008. Toth reviewed records from the Veteran’s Administration that reflected that in the summer of 2007, Malehorn received medical treatment during which he complained of shortness of breath and heart pain. The primary diagnosis was congestive heart failure. There was no diagnosis of pulmonary disease. Toth testified that there are predictable norms for pulmonary lung functioning based on age, gender and height. During the series of pulmonary lung function tests performed by Malehorn, he functioned at best at 82 percent of the norm and at worst at 68 percent of the norm. Toth testified that he did not know the amount of force and time necessary to produce a valid sample of breath on an Intoxilyzer 5000. While acknowledging that Malehorn could have blown air into the instrument, it was his opinion, based on his clinical findings, that Malehorn’s ability to perform the breath test was impaired by his condition. Hatalski v. Commonwealth of Pennsylvania, Department of In Transportation, Bureau of Driver Licensing, 666 A.2d 386 (Pa. Commw. 1995), the Commonwealth Court held that where a licensee suffered from a medical condition whose existence was not obvious, and it affected the licensee’s ability to perform a test, the licensee was required to inform the officer of the condition so that an alternative chemical test could be performed. Because the officer was not notified, the licensee -3- 07-6801 CIVIL TERM was precluded from relying upon any such condition or inability as an affirmative Bridges v. defense to a suspension as a consequence of a test refusal. However, in Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456 (Pa. Commw. 2000), the Commonwealth Court held that a licensee is not prevented from utilizing an affirmative defense if he had not been diagnosed with a condition that affected his ability to produce enough breath to complete a breathalyzer test. This is the situation in the present case. Barbour v. Commonwealth of Pennsylvania, Department of In Transportation, Bureau of Driver Licensing, 732 A.2d 1157 (Pa. 1999), the Supreme Court of Pennsylvania held that proof of physical inability to take a breath test to measure blood alcohol content must be by expert medical testimony to a reasonable degree of medical certainty. James Toth is a licensed respiratory therapist. He is not a physician, therefore, being unable to render any opinion within a reasonable degree of medical certainty as to whether Malehorn was physically unable to perform the Intoxilyzer 5000 test on October 8, 2007, there is insufficient evidence for this court to make such a finding. Even if we could consider Toth’s testimony on that issue, it was insufficient for us to conclude that Malehorn was physically unable to perform the Intoxilyzer 5000 test. Bridges, In a medical doctor testified on behalf of the licensee with whom he had administered a pulmonary function test. The test showed that the licensee suffered mild to moderate restriction in moving air. The physician was not aware of the exact -4- 07-6801 CIVIL TERM forced expiratory volume required to satisfy the requirement of the breathalyzer test, nor the amount of time that breath is needed to be maintained for the test, nor how hard a person needs to blow in order to satisfy the requirements of the test. Notwithstanding, the physician testified that the licensee would have had significant difficulty completing the breathalyzer test because of his lung disease, and his reduced ability to exhale would have made it more difficult to perform the test. The Commonwealth Court held that this was insufficient evidence to support a finding that the licensee could not produce the breath necessary to successfully complete the test Whistler, due to a medical condition. In the physician testified that the licensee had advanced pulmonary disease and could not physically perform the breathalyzer test due to his prior exposure to smoke and his emotional issues, and that the licensee “probably would have a difficult time performing that test adequately, and to do so without medications might have provoked a worsening of the disease.” The physician did not know what force of air was necessary to get a reading on the testing device used in the case. The Commonwealth Court concluded that this was not competent evidence to support a conclusion that the licensee had a medical condition which prevented him from performing a breathalyzer test. sub judice, Likewise, in the case the opinion of James Toth, who did not know the amount of force and time necessary to produce a valid breath test on an Intoxilyzer 5000, that Malehorn’s ability to perform the test was impaired by his pulmonary functioning ability is not sufficient for us to conclude that Malehorn had a physical -5- 07-6801 CIVIL TERM condition whereby he could not produce the breath necessary to successfully complete the test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this _________ day of February, 2008, the within appeal from the IS DISMISSED. suspension of a driving privilege, By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Gary Lysaght, Esquire For Petitioner :sal -6- COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, DEPARTMENT OF : CUMBERLAND COUNTY, PENNSYLVANIA TRANSPORTATION : : V. : : DONALD E. MALEHORN : 07-6801 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this _________ day of February, 2008, the within appeal from the IS DISMISSED. suspension of a driving privilege, By the Court, Edgar B. Bayley, J. George Kabusk, Esquire For the Department of Transportation Gary Lysaght, Esquire For Petitioner :sal