Summary
In Commonwealth of Pa. Dept. of Transportation v. Hudock (Pa. Commw. 1983), 457 A.2d 188, 190, the court stated: "Appellee's testimony that he attempted but was unable to blow into the breathalyzer is legally insufficient to prove inability, absent other competent evidence that he was physically unable to take the test."
Summary of this case from Wilder v. MccullionOpinion
March 15, 1983.
Motor vehicles — Suspension of motor vehicle operator's license — Refusal to submit to breath test — Offer to submit to blood test.
1. A mere statement unsupported by other evidence that a motor vehicle operator was physically unable to perform a breath test is not sufficient to excuse a refusal of a properly requested breath test. [610]
2. A motor vehicle operator's license is properly suspended when a licensee refuses to submit to a properly requested breath test and when insufficient evidence supported the claim of the licensee that he was physically unable to perform the test. [611]
3. There is no obligation to offer a blood test to a motor vehicle operator in the absence of sufficient evidence to support his claim that he was physically unable to perform a properly requested breath test, and an offer by such operator to submit to a blood test does not negate his refusal of the breath test. [611]
Submitted on briefs November 15, 1982, to President Judge CRUMLISH, JR. and Judges MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 1752 C.D. 1980, from the Order of the Court of Common Pleas of Northampton County in case of Commonwealth of Pennsylvania v. George Hudock, No. 1980-C-4432.
Motor vehicle operator's license suspended by Department of Transportation. Licensee appealed to the Court of Common Pleas of Northampton County. Appeal sustained. GRIFO, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Richard E. Santee, Jr., Sigmon Ross, P.C., for appellee.
The Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Northampton County which reversed the Department's suspension of George R. Hudock's motor vehicle operator's license for refusing to submit to a breathalyzer test. Following a thorough review of the record, we reverse the common pleas court.
Section 1547(b) of the Vehicle Code, 75 Pa. C. S. § 1547(b) provides that any person who is arrested for driving under the influence of alcohol and refuses a request to submit to a chemical test shall, upon notice to the Department, have their operating privileges suspended for a period of six months.
On March 20, 1980, George Hudock (Appellee) was observed by Officer Donald Borger getting out of an automobile which had gone off the road and lay in an adjacent field. As the police officer approached the automobile, he noticed that a nearby traffic sign had been knocked down, a telephone pole had been scraped, and the right rear corner panel of Appellee's car was pushed in. Although he did not take any paint scrapings, the officer did find a piece of molding from Appellee's car laying in the road next to the telephone pole. As Appellee explained how his automobile had come to rest in the field, Officer Borger noticed the odor of alcohol on his breath. Appellee was then placed under arrest for driving under the influence of alcohol. Soon thereafter, Officer Robert Stuffet, who is qualified as a breathalyzer operator, arrived at the scene. When Appellee was asked if he had any medical problems, he responded in the negative. Appellee was then asked to take a breathalyzer test. He was advised that should he refuse, his license would be suspended for six months. Appellee agreed to take the test, Approximately three times Appellee placed the equipment to his mouth but failed to inflate the chambers. Each time, Appellee was warned concerning the consequences of refusal and given complete instructions. The test operator, Officer Stuffet, informed Appellee that his failure to fill the chambers would be considered a refusal. Subsequently, the Department was informed of Appellee's refusal to take the test, and thereafter issued a notice of a six-month suspension.
On appeal of the suspension before the court of common pleas, Appellee contended that his failure to inflate the breathalyzer was the result of a medical problem with his lungs. No other evidence in support of this statement was offered however. Appellee's testimony that he attempted but was unable to blow into the breathalyzer is legally insufficient to prove inability, absent other competent evidence that he was physically unable to take the test. Department of Transportation, Bureau of Traffic Safety v. Medalis, 24 Pa. Commw. 12, 354 A.2d 43 (1976). After the arresting officer had determined that Appellee's conduct constituted a refusal, Appellee offered to take a blood test. The police, however, did not agree to a blood test because approximately an hour and a half had elapsed during the attempts to take the breathalyzer test, thereby making the validity of a blood test questionable. See Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commw. 333, 442 A.2d 407 (1982). Since there is insufficient evidence to establish Appellee's physical inability to take the breathalyzer test, there was no obligation to offer a blood test. Department of Transportation, Bureau of Traffic Safety v. Hanes, 49 Pa. Commw. 407, 411 A.2d 571 (1980). Appellee's consent to a blood test does not negate his refusal to submit to the breathalyzer test. Department of Transportation, Bureau of Traffic Safety v. Smith, 6 Pa. Commw. 78, 293 A.2d 158 (1972). Therefore, we find that the trial court's conclusion that the Department failed to sustain the burden of proving Appellee's refusal was in error.
ORDER
NOW, March 15, 1983, the order of the Court of Common Pleas of Northampton County in the above referenced matter, dated September 3, 1980 is hereby reversed.