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HomeMy WebLinkAbout01-2916 CIVILCHARLES M. FOGARTY COMMONWEALTH OF PENNSLYVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2916 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE alcohol. appeal. Pennsylvania. avers: PROCEDURE 1925 Bayley, J., October 3, 2001:-- Petitioner, Charles Matthew Fogarty, filed this appeal from an order of Respondent, Commonwealth of Pennsylvania, Department of Transportation, suspending his operator's license for one year for failure to complete a test of his breath following his arrest for operating a motor vehicle while under the influence of Following a hearing, an order was entered on August 8, 2001, dismissing the Petitioner filed a direct appeal from that order to the Superior Court of In a concise statement of matters complained of on appeal, petitioner 1. Petitioner (licensee) contends that the officer who administered the breath test failed to adequately instruct the Petitioner on how to complete the test. 2. The officer who administered the test did not explain to the licensee that the intoxilyzer required approximately ten (10) seconds of uninterrupted breath, and further, at several points, indicated "o.k." to the licensee while he was attempting to comply with the request for a breath 01-2916 CIVIL TERM test. 3. The Petitioner believes he made a conscious effort to supply sufficient breath (noting that one sample in fact was sufficiently supplied), that the operator failure in instruction cannot be considered a refusal. We find the following facts. On January 28, 2001, at approximately 2:30 a.m., Officer William Meneses of the Mechanicsburg Police stopped petitioner in the Borough of Mechanicsburg for summary violations. Following an investigation at the scene, Officer Meneses arrested petitioner for operating a motor vehicle while under the influence of alcohol. Petitioner was taken to a booking center. He was advised of his rights under the Implied Consent law. After considerable hesitation, the visibly, acutely intoxicated petitioner agreed to undertake a test of his breath on an Intoxilyzer 5000. A booking agent told petitioner to make a tight seal around the mouthpiece and blow one steady, strong breath into it until he was told to stop. Petitioner hardly put any breath into the machine. The Agent repeatedly told him to blow, blow, blow, blow, and that he is not blowing enough air into the machine. The constantly argumentative petitioner maintained that he was blowing air into the machine. It is obvious he is hardly blowing any.1 The Agent told petitioner that it was a constant beep of the machine that he was looking for, and to keep blowing air into the machine until he was told to stop. Petitioner was told several times to take a deep breath and make a tight seal around the mouthpiece. As petitioner continued to blow insufficient amounts of air into the machine, the Agent took another mouthpiece and blew into it to show petitioner 1 All of this is memorialized on a videotape that was admitted into evidence. -2- 01-2916 CIVIL TERM how to blow enough air into the machine. breath, "like you are forcing up a balloon." The Agent told petitioner to take a deep On the seventh try, petitioner finally blew enough air into the machine to register a valid test. The Agent then told him to do it one more time. He gave petitioner six separate opportunities to do what he had already done. Petitioner blew virtually no air into the machine on any of those occasions. The Agent then deemed that petitioner refused to perform a valid second test. The Intoxilyzer was properly calibrated, certified as accurate, and working properly. Section 1547(b)(1 ) of the Vehicle Code, 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. (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 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 Code. Commonwealth, Department of Transportation v. Schraf, 135 Pa. Commw. 246 (1990). -3- 01-2916 CIVIL TERM 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, 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 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 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 § -4- 01-2916 CIVIL TERM 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.) In a brief, petitioner cites Barner v. Commonwealth of Pennsylvania, Department of Transportation, 19 D. & C.4th 523 (Dauph. 1993), in support of his contention that he made a conscious effort to perform a valid second breath test, and due to operator error his license cannot be suspended. In Barner, the Dauphin County trial court stated: In a studied review of the videotape, counsel and the court attempted to record the results of five attempted tests. The number of seconds during which the tone was activated in each test is as follows: Test 1, three seconds; test 2, nine seconds; test 3, four seconds; test 4, three seconds; test 5, six seconds. During one of these tests the machine provided a momentary reading of .215. Benner also explained that the machine emits a beep when a sufficient sample has been received. In this case, Mr. Benner conceded that he did not instruct the defendant to blow into the machine until she heard a beep. He did not explain to her that the machine required approximately ten seconds of uninterrupted breath or that she would have to take a deep breath before beginning to blow. At one point, the defendant stopped blowing after the operator said "okay" even before the beep had sounded. We find that the lack of clarity in Mr. Benner's instructions was a primary cause of the failure to obtain a valid test. If the licensee makes a conscious effort to comply but is unsuccessful because of operator failure, there can be no refusal. See e.g., PennDot v. Marion, 109 Pa. Commw. 299, 530 A.2d 1053 (1987). (Emphasis added.) The regulations of the Department of Transportation at 67 Pa. Code § 77.24(b), include: -5- 01-2916 CIVIL TERM Procedures ... Alcohol and breath tests ... shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. (Emphasis added.) In Lackman v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, __ Cumberland L.J. __ (opinion filed September 27, 2001), the same claim was made that is being made in the present case. We stated: The Operator's Manual of the manufacturer of the Intoxilyzer 5000, Federal Signal Corporation of Minturn, Colorado, sets forth an operating procedure for the administration of a breath test. The manual includes the following: Request subject to blow into the mouthpiece until the tone stops; the subject has three minutes to provide an adequate breath sample. To insure a delivery of a sufficient sample, the display command requests the subject to blow into the mouthpiece until the tone stops. The tone, however, does not actually stop until the subject stops blowing .... If the subject stops blowing before providing a sufficient sample, then 'PLEASE BLOW' flashes on the display and beep sounds every five seconds. If this occurs, request the subject to blow into the mouthpiece until the tone stops. [A]gent Mitchem never told petitioner to blow into the mouthpiece until the tone on the machine stopped. However, he did tell petitioner to make a tight seal around the mouthpiece, to blow harder, and to blow in one sustained breath. He repeatedly told petitioner to make one steady, strong breath until he was told to stop. In Bamer, the Dauphin County court reversed a license suspension because, on the facts of that case, the court concluded that "the licensee did make a conscious effort to comply with the testing but was unsuccessful because of operator failure." Here, in contrast, we know, despite petitioner's testimony to the contrary, that he knew how to perform a valid test because he blew a valid .202% on his third try. On his next sixteen efforts, he failed to do -6- 01-2916 CIVIL TERM the same thing that he had just done. When Agent Mitchem repeatedly told him to make one steady, strong breath, with a tight seal on the mouthpiece until he was told to stop, something he did not do, the procedure was comparable to that set forth in the operator's manual. The procedure used by the Agent complied with 67 Pa. Code § 77.24(b). As long as petitioner was informed on how to successfully complete the test, which he was, there are no magic words that must be imparted to him. Our review of the videotape satisfies us that the Agent was correct in that petitioner did not exert a total conscious effort to complete a second valid breath test, which he was told how to perform, and which he knew how to perform. There was no operator error. (Emphasis added.) In the case sub judice, the booking agent told petitioner to make a tight seal around the mouthpiece of the Intoxilyzer 5000, and blow one steady, strong breath into it until he was told to stop. The Agent repeatedly told petitioner that he was not blowing enough air into the machine. The Agent blew air into another mouthpiece to show petitioner exactly how to perform the test? He explained to petitioner that he should take a deep breath, "like you are forcing up a balloon." The Agent explained to petitioner that it was a constant beep of the machine that he was looking for, and to keep blowing air into the machine until he was told to stop.3 When petitioner finally blew a valid test on his seventh try, the Agent told him to do it one more time. Despite six separate opportunities, petitioner blew virtually no air into the machine. Our review of the videotape satisfies us that the Agent was correct in his conclusion that petitioner did not exert a conscious effort to complete a second valid breath test, which he was factor not present in Lackman. -7- 01-2916 CIVIL TERM 3 A factor not present in Lackman. -8- 01-2916 CIVIL TERM told how to perform, and which he knew how to perform having just blown a valid test. There was no operator error. The order of August 8, 2001, dismissing petitioner's appeal from the suspension of his operator's license for one year pursuant to Section 1547(b)(1 ) of the Vehicle Code, was properly entered. (Date) George Kabusk, Esquire For the Department of Transportation P. Richard Wagner, Esquire For Petitioner :saa Edgar B. Bayley, J. -9-