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HomeMy WebLinkAbout2005-5331 Civil CORNELIA M. TAMININI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. COMMONWEALTH OF PADEPARTMENT OF TRANSPORT ATION BUREAU OF DRIVER LICENSING NO. 2005 - 5331 CIVIL TERM CIVIL ACTION - LAW IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., July , 2006 Petitioner has appealed our order of April 19, 2006 which dismissed her appeal from the Department's suspension of her operating privileges pursuant to Section 1547 of the Vehicle Code(75 Pa. C.S.A. S 1547). In effect, her position on appeal is that we erred in finding that she refused to submit to the requested breath test. On August 15,2005 petitioner was arrested for driving under the influence by Officer Edward Curtis of the Lower Allen Township Police Department. She was transported to the Cumberland County Booking Center where she was asked to submit to a breath test. Because the booking agent concluded that she did not supply a sufficient breath sample, he deemed her conduct to be a refusal. We held an evidentiary hearing in connection with petitioner's appeal on February 27, 2006. At that hearing petitioner contended that the breath test ticket proved that she did not give a deficient sample. She pointed out that if she had not provided a sufficient breath sample, the ticket would have read "deficient" rather than "invalid test", as it did in this case. 1 Petitioner's position is based on the instruction manual for the 1 See Commonwealth Exhibit 3. NO. 2005 - 5331 CIVIL TERM Intoxilyzer 5000? She argued that according to the instruction manual "invalid test" could mean only one of three things: 1) the start test button was pushed at the wrong time; 2) the evidence card was pulled from the printer; or 3) the instrument's pump inadequately purged the sample chamber? The Commonwealth presented the testimony of booking agent Rodney Gsell. Agent Gsell testified that the petitioner did not follow his instructions with regard to providing "one steady breath". Therefore, she did not provide sufficient breath for a valid test. Furthermore, he testified that he has performed over 600 tests on the Intoxilyzer 5000. He knew very well how to operate the machine. He did not push the start button at the wrong time; nor did he pull the evidence card from the printer to cause the "invalid test" print out. Regardless of the reason for the print out, he was satisfied that petitioner did not give a sufficient breath sample. We believed his testimony. Furthermore, we were able to observe the petitioner's actions on the videotape entered into evidence by the Commonwealth.4 It was clear to us that she was making a conscious effort to not supply a sufficient breath sample. Despite Agent Gsell's repeated instructions to the contrary, she constantly started and stopped blowing into the machine. The law applicable to this case is well established. As the Commonwealth Court has stated: In order to sustain a license suspension under the Code, the Department must establish that the licensee (1) was arrested for driving under the influence (DUI) based on reasonable grounds that he was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to submit to the requested chemical test and (4), was warned that refusal would result in a license suspension. 75 Pa. C.S. S 1547 (a); 2 See Petitioner's Exhibit 1. 3 See Petitioner's Exhibit 1, p. 25. 4 Commonwealth Exhibit 4. 2 NO. 2005 - 5331 CIVIL TERM Spera v. Commonwealth Dept. of Transportation, 817 A.2d 1236, 1239 (Pa. Commonwealth 2003). The Spera Court went on to say: Failure to submit a sufficient breath sample, whether or not a good faith effort was made to do so, constitutes a refusal per se to take the test. ... If a licensee does not exert a total conscious effort to supply a sufficient breath sample, he will be deemed to have refused the test. 817 A.2d at 1240 (citations omitted) (emphasis added). The only one of the above elements in dispute in the instant case was whether petitioner refused to submit to the requested chemical testing. Based upon the facts as we found them to be, we were satisfied that she did refuse. Furthermore, the reason for the "invalid test" printout is irrelevant to our finding. Based upon the testimony of agent Gsell as well as our observations of her actions on the videotape, we were satisfied that she did not "exert a total conscious effort to supply a sufficient breath sample". Spera, supra. To the contrary, we found as a fact that she intentionally attempted to supply an insufficient sample. DATE Edward E. Guido, J. P. Richard Wagner, Esquire 2233 North Front Street Harrisburg, Pa. 17110 George H. Kabusk, Esquire Riverfront Office Center 1101 South Front Street Harrisburg, Pa. 17104-2516 :sld 3