Opinion
No. 1306 C.D. 2011
05-10-2012
Michael Paul Walker, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is an appeal from an order of the Court of Common Pleas of Montgomery County (the trial court) denying the appeal of Michael Paul Walker (Licensee) from the one-year suspension of his driver's license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) for refusal of chemical testing pursuant to the Implied Consent Law, Section 1547(b)(1)(i) of the Vehicle Code. We affirm.
By letter dated December 10, 2010, the Department notified Licensee that his driver's license was being suspended for a period of one year for his refusal to submit to chemical testing on November 12, 2010. (Letter from Department to Licensee, R.R. at 84a-86a.) Licensee filed a timely appeal to the trial court, and the trial court held a de novo hearing on the license suspension on June 13, 2011.
At the de novo hearing, the Department offered the testimony of Detective John Schramm, the arresting officer who attempted to administer the testing at issue, and introduced in evidence the D-26 Implied Consent Warnings form signed by Licensee. Detective Schramm testified that he stopped Licensee's vehicle for speeding on the night in question and that when he approached the vehicle, Licensee smelled of alcohol, his eyes were red and glassy and he was slurring his speech. (Hearing Transcript (H.T.) at 5-7, R.R. at 8a-10a.) Following field sobriety tests that indicated intoxication, Detective Schramm placed Licensee under arrest for driving under the influence of alcohol (DUI). (H.T. at 7-10, R.R. at 10a-13a.) After transporting Licensee to the police station, Detective Schramm, who is a properly certified breathalyzer operator, asked Licensee to submit to a breath test. (H.T. at 10-11, R.R. at 13a-14a.) Detective Schramm testified that he demonstrated to Licensee the proper method for completing the test, explaining to Licensee that he needed to give a long, continuous breath with his lips making a tight seal around the mouthpiece. (H.T. at 12-14, R.R. at 15a-17a.)
On Licensee's first attempt to complete the breath test, Detective Schramm observed that "he was attempting to manipulate the test" and that Licensee "would blow, stop, blow, stop, and then he also was not forming a tight seal around the mouthpiece." (H.T. at 14-15, R.R. at 17a-18a.) When Licensee failed to complete this first attempt satisfactorily, Detective Schramm read the Implied Consent warnings to him from a Form DL-26 and Licensee signed the DL-26 acknowledging that he received those warnings. (H.T. at 15-20, R.R. at 18a- 23a; Exhibit C-2, R.R. at 83a.) Detective Schramm then provided Licensee a second opportunity to attempt this breath test, but Licensee "did the same thing. He didn't form a tight seal again." (H.T. at 18, R.R. at 21a.) After Licensee failed these attempts to complete a breath test satisfactorily, Detective Schramm administered a second breath test. (H.T. at 21-22, R.R. at 24a-25a.) On this second test, Licensee provided a first breath sample with a blood alcohol content of 0.11%, but on the second sample needed to complete the test, "he was manipulating the test again. He was blowing intermittently and he was acting, like, he was blowing. There was no air going through the machine." (H.T. at 22-23, R.R. at 25a-26a.) The breathalyzer printouts, introduced in evidence, showed a failure to provide adequate breath samples and Licensee stipulated that the breathalyzer machine was accurate and properly calibrated. (H.T. at 24, R.R. at 27a; Exhibit C-4.) Because Licensee had repeatedly failed to provide adequate breath samples, Detective Schramm determined that Licensee had refused to submit to chemical testing. (H.T. at 23-24, R.R. at 26a-27a; Exhibit C-2, R.R. at 83a.)
Licensee also testified at the hearing. Licensee testified that he understood that he was instructed to give a long, continuous breath, but that he had difficulty blowing that long because he was nervous. (H.T. at 46-47, R.R. at 49a-50a.) There was no evidence that Licensee suffered from any respiratory condition or any medical condition that could affect his ability to supply adequate breath samples; the only medical conditions that Licensee claimed he suffered from were high blood pressure and acid reflux. (H.T. at 54, R.R. at 57a.) Licensee did not introduce any medical evidence.
The trial court found Detective Schramm's testimony credible and that the Department had met its burden of proof under the Implied Consent Law. (Trial Court Opinion at 3-6; H.T. at 76-77, R.R. at 79a-80a.) The trial court, accordingly, denied Licensee's appeal and ordered that the suspension of his driver's license be reinstated. This appeal followed.
This Court's standard of review of a trial court order sustaining a license suspension based upon a refusal to submit to chemical testing is limited to determining whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 17 n.5 (Pa. Cmwlth. 2010); Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 n.1 (Pa. Cmwlth. 2010). --------
To sustain a driver's license suspension under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1), the Department must prove "that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license." Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 18 (Pa. Cmwlth. 2010) (quoting Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa.Cmwlth. 2009)). If the Department satisfies this initial burden of proof, the driver's license suspension must be affirmed unless the licensee shows that he was physically unable to take the test or that his refusal was not knowing or conscious. Sitoski, 11 A.3d at 18; Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). Failure to supply adequate breath samples to complete a breathalyzer test despite reasonable opportunity to do so constitutes a refusal to submit to chemical testing, even if licensee made good faith efforts to comply, unless the licensee shows that he was physically unable to produce a breath sample as a result of a medical condition unrelated to intoxication. Burkhart v. Department of Transportation, Bureau of Driver Licensing, 934 A.2d 161, 164 (Pa. Cmwlth. 2007); Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002) (en banc).
The Department satisfied its burden of proof here. There is no dispute that Licensee was warned of the consequences of failing to comply with the breathalyzer test, that Licensee failed to supply adequate breath samples despite multiple attempts and that Licensee made no showing that he was physically unable to produce adequate breath samples due to a medical condition.
The only issue argued by Licensee in this appeal is that the instruction he was given on how to blow into the breathalyzer machine was allegedly confusing. (Appellant's Br. at 4.) That contention is without merit. The trial court found that Detective Schramm correctly and appropriately instructed Licensee how to provide the breath samples. (Trial Court Opinion at 5-6.) That finding is supported by substantial evidence. (H.T. at 12-14, R.R. at 15a-17a.) Moreover, Licensee's argument is contradicted by his own testimony. The record shows that Licensee admitted in his testimony that he understood the correct way to blow into the breathalyzer. (H.T. at 46-47, R.R. at 49a-50a.)
For the foregoing reasons, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 10th day of May, 2012, the order of June 13, 2011 of the Montgomery County Court of Common Pleas in the above-captioned case is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge