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HomeMy WebLinkAbout2009-7272 Civil DOUGLAS E. RHOADS, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-7272 CIVIL COMMONWEALTH OF PA, : DEPT. OF TRANSPORTATION, : DRIVER’S LICENSE SUSPENSION APPEAL BUREAU OF DRIVER’S : LICENSING, : Respondent : IN RE: LICENSE SUSPENSION APPEAL BEFORE HESS, P.J. OPINION AND ORDER Before the court is the appeal of Douglas E. Rhoads (“appellant”), who challenges the suspension of his driving privileges by the Department of Transportation (“Department”) for an alleged refusal to complete a breath test. For the reasons set forth below, we are constrained to deny the appeal. On August 29, 2009, Trooper Tandy Carey of the Pennsylvania State Police was traveling southbound on Interstate 81 in Silver Spring Township. (N.T. 6:13-17). Near mile marker 57.9, Trooper Carey observed a red Chevrolet S-10 truck driving erratically. (N.T. 6:20- 23). Specifically, she saw the vehicle pass over the fog line three times, over the dotted line twice, and make erratic lane changes. (N.T. 6:20-7:10). Based on these observations, Trooper Carey initiated a traffic stop. (N.T. 7:10-12). Trooper Carey testified that after she made contact with the appellant, the driver of the red truck, she observed him fumbling through paperwork when looking for his driver’s license, vehicle registration, and proof of insurance. (N.T. 7:19-25). Trooper Carey also recalled the defendant having bloodshot and glassy eyes, slurred speech, and the odor of alcohol on his NO. 09-7272 CIVIL breath. (N.T. 7:25-8:3). The appellant also informed Trooper Carey that he had had a few drinks that evening. (N.T. 8:7-10). Trooper Carey then asked the appellant to exit his vehicle so she could administer field sobriety tests. (N.T. 8:13-14). Trooper Carey testified that as the appellant exited his vehicle, he staggered and appeared unsure of his footing. (N.T. 8:14-16). Trooper Carey then attempted to administer a preliminary breath test. (N.T. 8:19-21). On his first attempt, the appellant did not blow enough air into the device to produce a valid test result. (N.T. 9:1-5). On his second attempt, the appellant blew into the device correctly, producing a BAC reading of 0.241. (N.T. 9:5-7). Trooper Carey then placed him under arrest and transported him to the Cumberland County Processing Center in order to complete another breath test. (N.T. 9:10-20). Once at the Processing Center, the appellant was brought to Officer John Leuck, the operator of the Intoxilyzer 5000. (N.T. 15-5:12). Officer Leuck read the appellant his chemical testing warnings as set forth on Form DL-26 and then instructed him on how to complete the breath test. (N.T. 18:23-19:9). After being read these warnings, the appellant told Officer Leuck that he had difficulty breathing due to asthma and emphysema. (N.T. 19:19-22). The appellant then attempted to complete the breath test, but over the course of the two chances he was given, he was unable to provide a valid sample. (N.T. 18:10-19:9). Prior to the appellant’s second opportunity to complete the test, Officer Leuck again warned the appellant of the consequences of a failure to provide a valid sample. (Respondent’s Exhibit D, admitted February 23, 2010). The video recording of the appellant’s breath tests showed him blowing with enough force to initially produce the audible tone from the machine, but on each attempt, his face quickly turned bright red and he was unable to continue blowing hard enough into the machine. Id. 2 NO. 09-7272 CIVIL The appellant has proffered the deposition testimony of his physician, Dr. Julienne Fahnestock, who has treated the appellant since 1989. (Fahnestock Deposition 4:2-3). Dr. Fahnestock testified that the appellant has suffered from chronic obstructive pulmonary disease, commonly known as COPD, since 1992. (Fahnestock Dep. 4:4-20). In July 2009, Dr. Fahnestock ordered a pulmonary function analysis of the appellant because he was coughing and short of breath following a cold. (Fahnestock Dep. 4:21-5:7). After reviewing the results of that analysis, Dr. Fahnestock concluded that the appellant also suffers from severe emphysema. (Fahnestock Dep. 6:1-2). As a result of the appellant’s breathing conditions, he is unable to exhale with any considerable force, exhaling at only 47 percent of the predicted standard for a healthy person of his age, height, and weight. (Fahnestock Dep. 6:3-15). Additionally, he is unable to sustain breathing output; during his pulmonary tests, the appellant’s breath output decreased from 1.02 liters of air per second during the first second to 0.27 liters per second after about two seconds. (Fahnestock Dep. 8:17-25). Because of the stiff, inelastic nature of the appellant’s lungs, Dr. Fahnestock expressed doubt about the appellant’s ability to generate enough force to blow up a balloon, the very rough equivalent of the resistance of the Intoxilyzer 5000. (Fahnestock Dep. 11:25-12:16). Despite the illuminating testimony of Dr. Fahnestock with regard to the appellant’s extremely diminished breathing function, she was unable to offer any opinion of how the appellant’s COPD and emphysema would affect his performance on the Intoxilyzer 5000 machine on which he was tested, because she was familiar with neither the machine’s specific requirements nor its resistance setting. (Fahnestock Dep. 16:25-17:10). Ultimately, she was 3 NO. 09-7272 CIVIL unable to rule out alcohol as having had an effect on the appellant’s breathing on the night he was unable to provide a valid breath test. (Fahnestock Dep. 17:15-21). Section 1547 of the Vehicle Code requires the suspension of a licensee’s driving privileges for refusal to submit to a breath test. 75 Pa.C.S.A. § 1547(b). In order to uphold this administrative sanction, the Department must establish that the licensee: (1) was placed under arrest for driving under the influence of alcohol, (2) was requested to submit to a breathalyzer test, (3) refused to submit to the test, and (4) was warned of the specific consequences of refusal to submit to the test. See, e.g., Wheatley v. Department of Transportation, Bureau of Driver Licensing, 104 Pa.Cmwlth. 171, 172, 521 A.2d 507, 508 (1987). It is well settled that “failure to complete a breathalyzer test, whether or not a good faith effort was made to do so, constitutes a refusal per se to take the test.” Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa.Cmwlth. 2002) (citing Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Cmwlth. 484, 593 A.2d 932 (1991), appeal denied, 529 Pa. 625, 600 A.2d 541 (1991)) (emphasis in original). Once the Department establishes each of the four elements listed above, the burden then shifts to the driver to demonstrate that his refusal was either not knowing or conscious or that he was physically unable to take the test. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997) (citing Commonwealth, Department of Transportation v. O'Connell, 521 Pa. 242, 248, 555 A.2d 873, 876 (1989)). The medical condition causing a licensee’s physical inability to provide an adequate sample must be unrelated to the ingestion of alcohol or other drugs. Sweeney, 804 A.2d at 687 (citing Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa.Cmwlth. 4 NO. 09-7272 CIVIL 1996)). Where no obvious inability is apparent to officers, a finding that the driver was unable to take the test must be supported by competent medical evidence. Larkin v. Commonwealth, 109 Pa.Cmwlth. 611, 614, 531 A.2d 844, 846 (1987). Licensees asserting the defense of physical inability to complete the breath test face a decidedly uphill battle. In Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456 (Pa.Cmwlth. 2000), the Commonwealth Court held that testimony of the licensee’s medical doctor was not competent when he was unaware of the exact respiratory force and duration needed to produce a valid breathalyzer result. Bridges, 752 A.2d at 460. In Sweeney v. Dept of Trans., Bureau of Driver Licensing, supra, the Commonwealth Court reversed the trial court’s order sustaining an appeal of a licensee who, as in this case, argued that she was physically unable to provide a sufficient breath sample. Sweeney, 804 A.2d at 686. The licensee offered the expert testimony of a toxicology professor who previously served as the chief toxicologist of Allegheny County for thirty-two years. Id. The licensee’s expert testified that the factory resistance settings on the breathalyzer machines were typically set so high that some sober, healthy individuals would be unable to provide an adequate sample. Id. The Commonwealth Court rejected this testimony, stating: Sweeney’s expert indicated that generally Intoxilyzers needed to be set to a lower expiratory volumetric force of 3 pounds per liter. But Sweeney presented absolutely no evidence that this Intoxilyzer required an expiratory volumetric force of 6 pounds per liter rather than the 3 pounds per liter that her expert said was a better setting. Sweeney, 804 A.2d at 688 (emphasis in original). In short, the Commonwealth Court requires that medical testimony must be able to link the licensee’s specific ailment(s) to the requirements 5 NO. 09-7272 CIVIL of the particular breathalyzer machine used in order to be regarded as competent for the purpose of demonstrating physical inability. Were it not for this guidance from the Commonwealth Court, we would sustain the appeal before us. The video evidence and the deposition of Dr. Fahnestock demonstrate that the appellant made his best effort to provide a sufficient sample to the Intoxilyzer 5000 machine, but that his severe respiratory ailments prevented him from successfully doing so. We are satisfied that the appellant’s testimony challenging his alleged refusal was credible. Moreover, the appellant’s conduct during the breath tests bore out Dr. Fahnestock’s observations with regard to the appellant’s respiratory force: he was able to produce a short burst of breath, but what little force he could muster quickly subsided. Despite our conclusion that the appellant’s respiratory ailments – not the appellant’s failure to properly blow into the machine, as asserted by the Department’s witnesses – prevented him from being physically able to provide a valid breath sample, we are nonetheless constrained to find that the testimony of Dr. Fahnestock is insufficient to satisfy the standards set forth by the Commonwealth Court in Sweeney and Bridges. ORDER th AND NOW, this 26 day of August, 2010, the appeal of Douglas E. Rhoads from the suspension of his driving privileges is DENIED. BY THE COURT, _____________________________ Kevin A. Hess, P. J. 6 NO. 09-7272 CIVIL Philip Bricknell, Esquire For PennDOT Edward F. Spreha, Jr., Esquire For the Defendant :rlm 7 DOUGLAS E. RHOADS, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-7272 CIVIL COMMONWEALTH OF PA, : DEPT. OF TRANSPORTATION, : DRIVER’S LICENSE SUSPENSION APPEAL BUREAU OF DRIVER’S : LICENSING, : Respondent : IN RE: LICENSE SUSPENSION APPEAL BEFORE HESS, P.J. ORDER th AND NOW, this 26 day of August, 2010, the appeal of Douglas E. Rhoads from the suspension of his driving privileges is DENIED. BY THE COURT, _____________________________ Kevin A. Hess, P. J. Philip Bricknell, Esquire For PennDOT Edward F. Spreha, Jr., Esquire For the Defendant :rlm