Opinion
No. 1028 C.D. 2013
12-27-2013
Kenneth Paul Freese, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kenneth Paul Freese (Licensee) appeals an order of the Court of Common Pleas of Allegheny County (trial court) denying his appeal of the suspension of his operating privileges by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) for refusing to submit to chemical testing pursuant to Section 1547(b)(1)(i) of the Vehicle Code. Licensee contends that PennDOT did not prove that he refused to submit to a breathalyzer test. Discerning no merit to this argument, we affirm the order of the trial court.
75 Pa.C.S. §1547(b)(1)(i). That section provides, in pertinent part, that if any person placed under arrest for driving under the influence of alcohol "is requested to submit to chemical testing and refuses to do so, . . . the department shall suspend the operating privilege of the person . . . for a period of 12 months." Id.
On February 10, 2012, Licensee was arrested and charged with driving under the influence of alcohol. On June 11, 2013, PennDOT notified Licensee that his operating privileges were being suspended for a period of 12 months, effective July 23, 2013, as a result of his refusal to submit to chemical testing at the time of his arrest. Licensee appealed.
At the hearing of January 24, 2013, Licensee stipulated that the arresting police officer had reasonable grounds to believe that he was operating or was in actual physical control of the movement of a vehicle at the time of his arrest. PennDOT presented the testimony of City of Pittsburgh Police Officer Kevin Walters, who administered a breathalyzer test on Licensee using a DataMaster DMT machine. Officer Walters testified he had been certified as an operator of the machine for over a year.
Section 3802(a) of the Vehicle Code states:
(a) General impairment.--
75 Pa. C.S. §3802(a).(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
After Licensee consented to a breathalyzer test, Officer Walters advised him that he needed to blow "one long, strong, steady breath" while Officer Walters counted to five. Reproduced Record at 16a (R.R. ___). On his first attempt, Licensee "gave . . . a short breath, stopped, and then started to blow again, and then stopped." R.R. 16a. Officer Walters again explained the test procedure to Licensee, and Licensee gave "another breath, two breaths, [which] totaled about 5 seconds in duration." R.R. 17a. Officer Walters stopped the test and read Licensee the chemical test refusal warnings from PennDOT's Form DL-26.
After reading the warnings, Officer Walters gave Licensee a third opportunity to take the test. According to Officer Walters, "[Licensee] gave a breath sample, again two short puffs that lasted combined about 5 seconds . . . . I then got three short puffs that combined took just over 10 seconds." R.R. 18a. Based on Licensee's multiple failed attempts to give a sample of sufficient length, Officer Walters deemed him a refusal.
It is unclear from the record exactly how many breaths Licensee gave. Officer Walters testified that Licensee had two "tickets," and Licensee made multiple breath attempts per ticket. From reviewing Officer Walters' testimony, it appears that Licensee tried close to ten times to provide a sufficient breath sample.
During the hearing, the following exchange took place:
Q. [PennDOT]: On February 10th of last year, was the DataMaster DMT instrument at the SDD station properly functioning and calibrated and certified for accuracy according to PennDOT breath testing regulations?R.R. 14a. The attorney for PennDOT did not repeat the question and no response was given by Officer Walters. Thus, no evidence was introduced at the hearing regarding the machine's calibration and accuracy.
Mr. Emmi [for Licensee]: I object unless they have verification or documentation to certify that the machine was properly operating.
Mr. Kuhar [for PennDOT]: Your Honor, under the Pappas case the officer can testify to that. We do not have to produce the certification for calibration.
The Court: I'll note your objection.
Mr. Emmi: Thank you.
The trial court held that PennDOT did not need to introduce evidence of the machine's calibration because PennDOT had proven a refusal based on Officer Walters' testimony. In support, the trial court cited Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996), and Books v. Department of Transportation, Bureau of Driver Licensing, 530 A.2d 972 (Pa. Cmwlth. 1987). The trial court upheld the suspension of Licensee's operating privileges.
In his appeal to this Court, Licensee contends that the trial court erred. Specifically, Licensee argues that PennDOT did not prove that the breathalyzer machine used to test his breath sample was properly calibrated and, thus, failed to carry its evidentiary burden. PennDOT counters that Officer Walters' testimony established a refusal and therefore it was not required to submit evidence of the breathalyzer's calibration.
The issue of whether there was a refusal to submit to chemical testing is a question of law subject to plenary review by this Court. Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90, 92 (Pa. Cmwlth. 1995). Our scope of review is limited to "determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determinations demonstrate a manifest abuse of discretion." McCloskey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth. 1999). Determinations on the credibility of witnesses and the weight assigned to their testimony are solely within the discretion of the trial court; this Court is bound by those findings. McGee v. Department of Transportation, Bureau of Driver Licensing, 803 A.2d 255, 258 (Pa. Cmwlth. 2002).
To sustain a suspension of operating privileges, PennDOT must establish that the licensee:
(1) was arrested by a police officer who had reasonable grounds to believe that the licensee was operating a motor vehicle 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 refusal would result in a license suspension.Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011). When a defendant fails to "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, 442 A.2d 404, 406 (Pa. Cmwlth. 1982). A licensee's attempt to comply with the test may constitute a refusal where the licensee does not supply a sufficient breath sample. Pappas, 669 A.2d at 508; Department of Transportation, Bureau of Driver Licensing v. Kilrain, 593 A.2d 932, 935 (Pa. Cmwlth. 1991) ("Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal."). Once a refusal has been established, PennDOT does not need to prove the operability and functionality of the machine. Pappas, 669 A.2d at 508; Appeal of Budd, 442 A.2d at 406-07. The burden then shifts to the defendant to prove that he was medically unable to perform the test. Pappas, 669 A.2d at 508.
Essentially, PennDOT has two ways of establishing a refusal: (1) having the breathalyzer administrator testify that the licensee failed or refused to provide a sufficient breath sample, in which case no proof of calibration or proper operation is required, or (2) presenting a printout from a calibrated machine indicating a deficient sample, in which case the proper calibration must be proven by either documentary or testimonial evidence. Postgate v. Department of Transportation, Bureau of Driver Licensing, 781 A.2d 276, 279 (Pa. Cmwlth. 2001) (citing Pappas, 669 A.2d at 508).
At the hearing, Licensee stipulated that the arresting officer had reasonable grounds to arrest him and that he was asked to submit to a breathalyzer test. Licensee does not challenge Officer Walters' testimony that he read Licensee the warnings on Form DL-26, including that a refusal would result in a license suspension. The only issue on appeal is whether Licensee refused to submit to testing.
Licensee contends that PennDOT did not meet its burden of proof because it offered no evidence that the breathalyzer machine used by Officer Walters was reliable. Licensee further argues that "absent evidence that a breathalyzer is properly calibrated, it can not be said that an insufficient breath sample is the result of a non-compliant licensee rather than a defective machine." Appellant's Brief at 16. Licensee contends that without proof of a "flagrant attempt" to evade testing, PennDOT should be required to introduce evidence of the machine's calibration and accuracy. Id. Otherwise, Licensee's rights would be "wholly eviscerate[d]." Id. at 17.
The trial court held that because PennDOT had introduced affirmative evidence of Licensee's refusal, it did not need to introduce evidence on the machine's calibration. Officer Walters testified that Licensee failed multiple times to sustain a breath for the required 10 to 15 seconds, despite having the test explained to him twice. Based on that testimony, the trial court inferred Licensee's failure to "exert a total conscious effort" to provide a sufficient breath sample. Pappas, 669 A.2d at 508; Appeal of Budd, 442 A.2d at 406. Consequently, the trial court held that it was irrelevant whether the machine was properly calibrated. See also Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236, 1240 (Pa. Cmwlth. 2003) (where PennDOT can establish a refusal without relying on results from the breathalyzer machine, the operability or suitability of the machine is not at issue). We agree with the trial court.
Once PennDOT introduced evidence of a refusal, the burden shifted to Licensee to prove that his refusal was not knowing or that he was physically unable to take the test. Department of Transportation, Bureau of Driver Licensing v. Pestock, 584 A.2d 1075, 1078 (Pa. Cmwlth. 1990). Licensee did not introduce such evidence at the hearing. Essentially, Licensee argues that PennDOT must always prove the device's calibration, regardless of consent. Such is not the law of this Commonwealth, and the trial court committed no error in denying Licensee's statutory appeal.
Notably, Officer Walters testified on cross-examination that the calibration records were located in the witness room. R.R 22a. Licensee could have requested a brief recess while Officer Walters retrieved the records and then had the records introduced. Nothing in the record indicates that Licensee was prevented by the trial court from doing so. --------
For these reasons, we affirm the trial court's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 27th day of December, 2013, the order of the Court of Common Pleas of Allegheny County dated May 30, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge