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HomeMy WebLinkAbout01-2543 CivilCLEONE P. KARNS, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2543 CIVIL TERM CIVIL ACTION - LAW IN RE: LICENSE SUSPENSION APPEAL BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is the appeal of Ms. Karns from the one year suspension of her operating privileges. The Commonwealth of Pennsylvania Department of Transportation (hereinafter "Department") suspended her operating privileges for failing to complete a breath test as required by Section 1547(a) of the Vehicle Code.~ A hearing was held before this Court and the parties have briefed their respective positions. This matter is now ready for disposition. F1NDINGS OF FACT On the evening of March 21, 2001, Ms. Karns was arrested by Officer O'Donnel of the West Shore Regional Police Department and was charged with driving under the influence of alcohol. After being informed of the appropriate warnings under the Implied Consent Law,2 she agreed to submit to a chemical test of her breath test. 1 75 Pa. C.S.A. § 1547(a). 2 75 Pa. C.S.A. § 1547. NO. 2001-2543 CIVIL The test was conducted by Processing Agent Carol Franks. The test began at 22:31 hours and the entire procedure was videotaped.3 It is apparent from the videotape that Ms. Karns was making a good faith effort to comply with the instructions of Agent Franks. It is also apparent that she was confused, emotionally distraught and not feeling well. Try as she might, she simply was not able to provide a sufficient sample of her breath to obtain a valid reading on the Intoxilyzer 5000. The test timed out at 22:38 hours. Officer O'Donnel was summoned back to the booking center to determine whether he wanted to have Ms. Karns submit to a blood test. When the officer arrived, Ms. Karns was vomiting and complaining of chest pains.4 Despite the fact that he knew she was going to the hospital via ambulance, he elected not to have her submit to a blood test. Rather, he chose to treat her failure to complete the breath test as a refusal.5 DISCUSSION To sustain a license suspension under Section 1547 of the Vehicle Code, the Department has the burden of proving that the driver was: (1) arrested for driving under the influence; (2) asked to submit to a chemical test; (3) refused to do so; and (4) was properly advised of the license suspension resulting from a refusal. Car/in v. Commonwealth v. Dept. of Transportation, 739 A.2d 656 (Pa. Cmwlth. 1999). The only issue in the instant appeal is whether Ms. Karn's failure to supply a sufficient 3 See Commonwealth Exhibit 2. 4 The onset of the vomiting was 22:45 hours. s As part of her treatment at the hospital, blood was drawn and tested for alcohol content. The results were above a 0.10% and were subpoenaed by the arresting officer for use in the underlying prosecution. 2 NO. 2001-2543 CIVIL breath sample amounts to a refusal under section 1547(b) of the Vehicle Code.6 "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." Pappas v. Commonwealth Dept. of Transportation, 669 A.2d 504, 508 (Pa. Commonwealth 1996). Therefore, we are satisfied that the Commonwealth has sustained its burden. However, our inquiry does not end there. Ms. Karns may still avoid a license suspension if she can "prove by competent evidence that.., she was physically unable to take the test or was incapable of making a knowing and conscious refusal." Carlin, 739 A.2d at 659. The Department argues that Ms. Karns had to present competent medical evidence to sustain her burden of proof on those issues. We disagree. As the Commonwealth Court recently stated in Carlin, supra: With regard to a driver's physical inability to take the test, each case must be decided on its individual facts. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa. Cmwlth. 49, 500 A.2d 214 (1985). Medical evidence of a driver's physical incapacity is not a per se requirement. Department of Transportation, Bureau of Driver Licensing v. Groscost, 142 Pa. Cmwlth. 36, 596 A.2d 1217 (1991). Where a driver's physical incapacity is obvious, there is no need for the driver to present medical evidence to prove it. McQuaide v. Department of Transportation, Bureau of Driver Licensing, 166 Pa. Cmwlth. 683,647 A.2d 299 (1994). In determining the obviousness of a driver's incapacity, a court does not "leave [its] common sense at home." Id. at 302. 739 A.2d 659. The Commonwealth Court has also recognized: Many factors must be considered in determining whether the refusal of a driver to submit to a blood test or the breathalyzer was a 6 The relevant portion provides as follows: (b) Suspension for refusal. - (1) 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. 75 Pa. C.S.A. § 1547(b)(1). 3 NO. 2001-2543 CIVIL knowing and conscious refusal. One of the most important is the driver's mental and physical state at the time .... ·.. With regard to the motorist's physical condition, each case must be decided on its individual facts. ·.. the evidence was substantial enough to support the trial judge's finding that the refusal was not conscious and knowing, even absent medical testimony to form a nexus between the injuries sustained and the refusal to take the test. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Commonwealth 49, 500 A.2d 214, 215 (1985). In the instant case, after hearing Ms. Karns testify and after viewing the videotape, we are satisfied that she sustained her burden of proof. We could see the attempts made by Ms. Karns to complete the breath test. We are satisfied that she was not trying to sabotage the test. It was obvious that she was emotionally distraught and, as it turns out, physically ill. We concluded that her physical condition and emotional state were such that she was not able to give the requisite breath samples, even though she desired to do so. We are also convinced that she was so preoccupied with her physical illness that she did not, and could not, make a knowing and conscious decision to refuse the breath test. For those reasons, the appeal from the suspension of her operating privileges will be sustained. 4 NO. 2001-2543 CIVIL ORDER OF COURT AND NOW, this 13TM day of DECEMBER, 2001, for the reasons set forth in the accompanying opinion, Plaintiff' s appeal from the suspension of her operating privileges is SUSTAINED and the action of the Department is REVERSED. By the Court, John B. Mancke, Esquire For the Plaintiff George Kabusk, Esquire For the Department of Transportation :sld /s/Edward E. Guido Edward E. Guido, J.