Opinion
No. 651 C.D. 2014
01-08-2015
Amanda Fenchak v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from the Order of the Court of Common Pleas of Cambria County (trial court), which sustained the statutory appeal of Amanda Fenchak (Licensee) from the Department's one-year suspension of her operating privilege pursuant to Section 1547(b) of the Vehicle Code. On appeal, the Department argues that: (1) the trial court erred as a matter of law in holding that Licensee did not refuse chemical testing of her breath; (2) Licensee failed to satisfy her burden of proof that she was physically incapable of completing a breath test due to a medical problem; and (3) the trial court erred as a matter of law in holding that Licensee did not refuse chemical testing because she would have submitted to a blood test if she had been requested to do so. Based on our precedent we must conclude that the trial court erred and, therefore, we reverse.
75 Pa. C.S. § 1547(b). Section 1547(b) provides, in relevant part, that:
(b) Suspension for refusal.--
(1) If any person placed under arrest for a violation of section 3802 [relating to driving under the influence of alcohol or a 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 as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months...
(2) It shall be the duty of the police officer to inform the person that:
(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).
(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.
On May 11, 2013, Licensee "was arrested for suspicion of driving under the influence of alcohol." (Rule 1925(a) Trial Court Opinion (Tr. Ct. Op.) at 1.) Licensee was later "charged with violating Section 1547 of the Motor Vehicle Code for refusing to submit to chemical testing." (Tr. Ct. Op. at 1.) The Department informed Licensee, by letter, that her operating privilege was suspended for one year due to her refusal to submit to testing. (Tr. Ct. Op. at 1.) Licensee appealed the suspension to the trial court, which held a de novo hearing on December 6, 2013. (Tr. Ct. Op. at 1.) Although the arresting officer appeared and testified at that hearing, Licensee was not present; therefore, a continuance was granted and a subsequent hearing was held on March 26, 2014, at which time Licensee testified. (Tr. Ct. Op. at 1.)
Based on the testimony and evidence presented at both hearings, the trial court found as follows. The arresting officer transported Licensee to the Cresson Borough Police Department in order to conduct chemical testing of her breath. (Tr. Ct. Op. at 2.) Licensee "provided one [breath] sample, but was unable to give subsequent breath samples due to a tonsil infection and difficulty breathing." (Tr. Ct. Op. at 2.) Licensee submitted an "Explanation of Benefits" form into evidence, "which indicated that she had been hospitalized for a three day period as a result of the [tonsil] infection." (Tr. Ct. Op. at 2.)
Licensee testified that she did not refuse to submit to chemical testing, stating that '"I never once came out and said no, I'm not going to do that."' (Tr. Ct. Op. at 2.) Licensee "inform[ed] the arresting officer of her physical [tonsil] condition and advised the officer that she was unable to complete the second test because of that condition." (Tr. Ct. Op. at 2.) Licensee also testified that, if asked, "she would have submitted to a blood test." (Tr. Ct. Op. at 2.) The arresting officer did not provide Licensee with the opportunity to take a blood test. (Tr. Ct. Op. at 2.)
The trial court concluded that the Department "failed to meet its burden of establishing that [Licensee] refused to submit to testing." (Tr. Ct. Op. at 2.) In reaching this conclusion, the trial court found Licensee credible when she testified that she did not refuse or tell the arresting officer that she would not take the breath test and that she would have undergone a blood test if asked. (Tr. Ct. Op. at 3.) Thus, the trial court concluded that the Department "did not meet its initial burden." (Tr. Ct. Op. at 3.) Because the Department had not satisfied its initial burden, the trial court further determined that the burden did not shift to Licensee to prove that she was incapable of performing the second breath test and, therefore, Licensee "was not required to produce competent medical evidence." (Tr. Ct. Op. at 3.) Accordingly, the trial court sustained Licensee's appeal and vacated the suspension. The Department now appeals the trial court's Order to this Court.
Our review of the trial court's "decision in a license suspension case is limited to determining whether the trial court's findings of facts are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision." Orloff v. Department of Transportation, Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa. Cmwlth. 2006) (citation omitted).
The Department first argues that the trial court erred as a matter of law in holding that Licensee did not refuse chemical testing of her breath. The Department argues that a licensee's failure to complete a breath test, as occurred in this case, is a refusal of chemical testing as a matter of law.
In response, Licensee argues that the trial court correctly found that the Department failed to provide credible evidence of Licensee's refusal to submit to a chemical test. Because the trial court found that Licensee's testimony regarding her inability to complete the breath test was credible, Licensee argues that we cannot reverse the trial court's decision unless the trial court's credibility determination was clearly erroneous.
When operating privilege suspensions are under review, it is the Department's burden to prove that the licensee:
(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under [the] influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999). Here, it is undisputed that: (1) the arresting officer had reasonable grounds to arrest Licensee; (2) Licensee was asked to submit to a chemical test and was warned that her refusal would result in the suspension of her operating privilege; and (3) Licensee agreed to the test. Therefore, the sole question is whether Licensee's inability to complete a second breath test constituted a refusal.
"[T]he question of whether a licensee has refused chemical testing is one of law, based upon the facts found by the trial court." Giannopoulos v. Department of Transportation, Bureau of Driver Licensing, 82 A.3d 1092, 1095 (Pa. Cmwlth. 2013) (quotation omitted). Under the Department's regulations, in order to complete a breath test the licensee is required to provide "[t]wo consecutive actual breath tests, without a required waiting period between the two tests." 67 Pa. Code § 77.24(b)(1). It is well established by this Court "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) (emphasis omitted) (citation omitted); see also Department of Transportation, Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 935 (Pa. Cmwlth. 1991) (holding that a licensee's "good faith attempt to complete the breathalyzer test is irrelevant to the question of whether the licensee refused the test [and] [a]nything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal"). Therefore, whenever "a licensee fails to supply a sufficient breath sample, such conduct is tantamount to a refusal, thus warranting the suspension of the operating privilege." Department of Transportation v. Gross, 605 A.2d 433, 435 (Pa. Cmwlth. 1991).
In Sweeney, the licensee assented to chemical testing; however, when the licensee attempted to blow into the breathalyzer machine, she was unable to provide a sufficient sample. Sweeney, 804 A.2d at 686. In spite of the licensee's good faith effort to complete the breath test, we held that "[a] failure to provide a deep lung breath sample required for testing . . . constitutes a test refusal, unless the licensee can show that the failure to produce a sample was due to a physical inability caused by a medical condition unrelated to ingestion of alcohol or drugs." Id. at 687.
In this case, although the trial court found that Licensee did not outright refuse chemical testing and, in fact, attempted to complete the second breath test, Licensee's apparent good faith efforts to produce a second breath sample are not determinative. Sweeney, 804 A.2d at 687. Licensee only produced one of the required two breath samples when she underwent testing. Thus, based on our precedent, Licensee's failure to complete a second sufficient breath sample constitutes a per se refusal to take the test. Id. Accordingly, unless we revisit our longstanding precedent, we must find that the trial court erred as a matter of law in concluding that the Department did not satisfy its burden of demonstrating that Licensee refused chemical testing.
Next, the Department argues that Licensee did not offer any expert medical testimony to demonstrate that her tonsil infection prevented her from completing a breath test. As a result, the Department asserts that Licensee failed to satisfy her burden of proving that she was physically incapable of completing the test. In contrast, Licensee asserts that she never had the burden of proving, by competent medical evidence, that the tonsil infection prevented her from completing the second breath test because the Department did not satisfy its burden of proving that she refused the test.
Under the burden shifting test applied by this Court since at least 1991, "[o]nce the Department has established that the driver failed to submit to the chemical test, the burden then shifts to the driver to prove by competent evidence that she was physically unable to take the test or not capable of making a knowing and conscious refusal." Gross, 605 A.2d at 435. While the question of whether the licensee "has satisfied this burden is a factual determination to be made by the trial court . . . where no obvious inability [to submit to testing] is apparent, a finding that a driver was unable to take the test must be supported by competent medical evidence." Id. (emphasis added); see also Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 509 (Pa. Cmwlth. 1996) (holding that because licensee "failed to introduce any medical testimony showing that her alleged respiratory condition prevented her from properly performing the breath test, it was error for the trial court to have sustained [licensee's] appeal of her license suspension").
In Gross, the licensee claimed she was unable to produce sufficient breath samples due to allergies. Gross, 605 A.2d at 435. At trial, the licensee testified that at the time of the breath test, she informed the officer of her allergies and that she was having difficulty drawing breath. Id. at 436. The officer who administered the test testified that he could not recall whether Gross had informed him of her allergies. Id. The trial court determined that the issue of the licensee's allergies was one of credibility and ruled in favor of licensee. Id. On appeal, we concluded that although the trial court was justified in determining that the licensee "was credible, it erred by concluding that [the licensee's] testimony was competent." Id. Because the licensee's allergies were neither obvious nor apparent, the licensee was required to produce competent medical evidence. Id. Therefore, due to the licensee's failure to produce competent medical evidence we reversed the trial court decision and upheld the Department's suspension of the licensee's operating privilege. Id.
Here, although the trial court found that Licensee informed the officer of her tonsil condition and advised the officer that the condition prevented her from completing the test, like the licensee in Gross, Licensee failed to produce competent medical evidence to support that a tonsil infection prevented her from giving a sufficient breath sample. Licensee testified that she had recently been hospitalized for the infection and entered into evidence an "Explanation of Benefits Form" from her health insurance provider. (Tr. Ct. Op. at 2.) While the Explanation of Benefits Form indicates that Licensee was hospitalized from April 17, 2013 to April 20, 2013, it does not specify a medical condition or a causal link to her inability to take the test and, thus, does not provide medical evidence to support Licensee's contention that her tonsil infection prevented her from completing the breath test on May 11, 2013. (Explanation of Benefits Form, R.R. at 97a-105a.)
Moreover, under Gross, Licensee's own testimony is not considered competent medical evidence. Gross, 605 A.2d at 436; see also Department of Transportation v. Berta, 549 A.2d 262, 264 (Pa. Cmwlth. 1988) (holding that the licensee's self-serving testimony is legally insufficient for establishing that licensee was medically incapable of completing a sufficient breath test). Although the trial court could determine that Licensee was credible when she testified that her tonsil infection prevented her from completing the breath test and that she informed the officer of her condition, because Licensee's condition was neither obvious nor apparent, she was required to produce competent medical evidence. Gross, 605 A.2d at 436. As Licensee has not supported her testimony with competent medical evidence, Licensee did not satisfy her burden of proving that she was physically unable to complete the breath test.
Two separate hearings were held and, at the first hearing, there was a discussion of the requirement that Licensee present competent medical evidence in support of her argument that a medical condition caused her failure to complete the breath test. At the second hearing, at which Licensee was present and testified, she produced only health insurance records showing general laboratory and hospital treatment without any specification of what medical condition she had treated or evidence showing the causal link between a medical condition and her inability to complete the breath test.
Lastly, the Department argues that the trial court erred as a matter of law in sustaining Licensee's appeal based, in part, on its finding that Licensee would have submitted to a blood test, if asked. The Department argues that the arresting officer was not required to offer alternative testing, and that Licensee's failure to complete the breath test constitutes a refusal regardless of her willingness to submit to a blood test.
By advising the officer of a medical condition the licensee does not avoid testing, "but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition." Martin v. Department of Transportation, Bureau of Driver Licensing, 20 A.3d 1250, 1253 (Pa. Cmwlth. 2011) (emphasis omitted). In Gross, the licensee requested a blood test after first refusing to submit to a breath test due to breathing problems resulting from her alleged allergies. Gross, 605 A.2d at 435. We held that a licensee's prior refusal to take a breath test is not "vitiated by her subsequent request to submit to a blood test." Id. at 436. Moreover, we concluded that "once a [licensee] refuses a chemical test under 75 Pa. C.S. § 1547, the Department may properly suspend the motorist operator's license regardless of whether or not the motorist subsequently assents to a chemical test." Gross, 605 A.2d at 436 (citation omitted). Because the licensee in Gross refused a breath test and did not present competent medical evidence to justify her refusal, we upheld her license suspension in spite of her willingness to take a blood test. Id.
The instant case bears significant resemblance to Gross. Although the trial court found that Licensee would have submitted to a blood test if asked, as we stated previously, Licensee's failure to complete the breath test constitutes a refusal to take the test, as a matter of law. Thus, in the absence of competent medical evidence to support her refusal, Licensee's post facto willingness to submit to a blood test does not vitiate her refusal to initially complete the breath test. Gross, 605 A.2d at 636. Accordingly, the trial court erred to the extent that it sustained Licensee's appeal on the basis of her not being offered an alternative test.
For the foregoing reasons, consistent with longstanding precedent, we are constrained to reverse the trial court's Order.
We note that our Supreme Court recently granted a Petition for Allowance of Appeal in Nardone v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 2195 C.D. 2013, filed August 4, 2014), petition for allowance of appeal granted, ___ A.3d ___ (Pa., No. 587 MAL 2014, filed December 11, 2014). In Nardone, the licensee refused to submit to blood testing due to alleged medical reasons, but requested that the arresting officers permit him to take an alternative chemical test. Id., slip op. at 3-4. This Court determined that the licensee had refused chemical testing, in spite of his request to submit to alternative testing. Id., slip op. at 8. In its order granting licensee's Petition for Allowance of Appeal, our Supreme Court frames the issues for review as follows:
(1) Whether, in response to a police request for chemical testing arising out of a D.U.I arrest, a motorist has a statutory right to request alternative chemical testing under section 1547(i) of the Motor Vehicle Code (75 Pa.C.S.A. § 1547(i))?
(2) If a motorist has a statutory right to request alternative chemical testing under section 1547(i) of the Motor Vehicle Code when arrested for a D.U.I., does section 1547 require that any such request be conditioned upon the motorist having a medical condition preventing him from undergoing the chemical test requested by the police?
(3) Whether, in response to a police request for chemical testing arising out of a D.U.I. arrest, a motorist's request for alternative chemical testing, without more, constitutes a refusal to undergo chemical testing under 75 Pa.C.S.A. § 1547(b)(1)?
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 8, 2015, the Order of the Court of Common Pleas of Cambria County, entered in the above-captioned matter, is hereby REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE COLINS
I must dissent from the scholarly opinion of the majority. I believe that we should revisit both Sweeney and Kilrain.
Under the unique factual scenario in this case, the result is simply too draconian. The "[t]wo consecutive actual breath tests" are not required by statute but are regulations which have heretofore been elevated to statutory level by this Court.
The trial court found the testimony of Licensee credible as supported by the "Explanation of Benefits" form. Questions of the weight and sufficiency of the evidence are, and should be, the province of the trier of fact.
In this case, we are further eviscerating the statutory and common law duties and obligations of the Commonwealth's trial judges.
/s/ _________
JAMES GARDNER COLINS, Senior Judge
Id.
Nardone, ___ A.3d at ___ (Pa., No. 587 MAL 2014, filed December 11, 2014) (emphasis added). Here, however, Licensee did not request alternative chemical testing but merely testified at the hearing that "she would have submitted to a blood test," if she had been asked. (Tr. Ct. Op. at 2.) This Court's decision in Nardone does not address to what extent, if any, arresting officers are required to offer alternative testing in instances where the licensee does not specifically request an alternative test. Because Licensee in this case did not request alternative testing, this case is distinguishable from Nardone.