Opinion
No. 809 C.D. 2011
04-20-2012
John Keenan, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
John Keenan (Licensee) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) denying Licensee's statutory 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 the trial court erred in finding that his conduct constituted a refusal to submit to chemical testing. Discerning no error, 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 August 27, 2009, Licensee was arrested in Philadelphia and charged with driving under the influence of alcohol. Reproduced Record at 50a (R.R. ___). On October 16, 2009, PennDOT notified Licensee that his operating privileges were suspended for a period of 12 months, effective August 27, 2009, as a result of his refusal to submit to chemical testing at the time of his arrest. Licensee filed a statutory appeal, and a hearing was held on March 16, 2011.
At the hearing, PennDOT presented the testimony of Pennsylvania State Trooper Jose Munez, who explained that at approximately 4:00 a.m. he stopped Licensee driving at 89 miles per hour on Interstate 95. When Licensee showed signs of intoxication, Munez conducted field sobriety tests, which Licensee failed. Munez then placed him under arrest for suspicion of driving under the influence and transported him to the Police Detention Unit.
Trooper Munez testified that he waited in line with Licensee until Officer Phillips escorted Licensee to the testing room. While Licensee was in the testing room, Munez stood just outside of the room, approximately three to five feet away. He observed Officer Phillips read from two sets of documents that provided warnings and explained to Licensee that his driver's license would be suspended if he failed to submit to a breath test or failed to complete the breath test. Munez watched Licensee agree to a breath test and sign the documents read by Officer Phillips. Munez saw Licensee attempt to supply three to five breath samples over the course of approximately three minutes, but each time Licensee was advised that he had not provided a sufficient amount of air. PennDOT submitted the printout from the breathalyzer machine from 5:41 a.m. that indicated that the sample was insufficient.
Licensee testified at the hearing that he gave his best effort to provide a sufficient sample but was unable to do so. Licensee admitted that he was permitted to make three or four attempts. Licensee stated that he was incapable of providing a sample, even when he got down on one knee during one attempt. Licensee recalled that after he was told he had failed the breath test, he asked if he could submit to a blood test. His request was denied. At the hearing, Licensee offered no explanation for his inability to provide a sufficient breath sample.
The trial court credited Trooper Munez's testimony and found that PennDOT had presented sufficient evidence that Licensee failed to provide a sufficient sample to complete the breathalyzer test. The trial court held that Licensee's conduct constituted a refusal and upheld the suspension of Licensee's operating privileges.
In his appeal to this Court, Licensee contends that the trial court erred. Specifically, Licensee claims that his failure to complete the breathalyzer test was not a refusal under Section 1547(b)(1)(i) of the Vehicle Code because he made a good faith effort to complete the test and then offered to take a blood test. PennDOT counters that Licensee was given sufficient opportunity to provide a breath sample and his failure to do so constituted a refusal.
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, 93 (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).
In order 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) (citing Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007)). Any response from a licensee that is less than an unqualified, unequivocal assent to a chemical test constitutes a refusal. Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003). A licensee's refusal need not be expressed in words; a licensee's conduct may constitute a refusal to submit to testing. Id. 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).
Here, Licensee challenges the trial court's finding that his conduct constituted a refusal to submit to chemical testing. Licensee argues that his appeal is controlled by this Court's decision in Bomba, where we held that because a licensee requested a second chance to do a breathalyzer test, she did not refuse to submit to chemical testing.
Bomba is distinguishable. In that case, the licensee was given one attempt to take the breathalyzer test and was unable to provide an adequate breath sample because she was very upset. Bomba, 28 A.3d at 951. The licensee immediately requested another opportunity to take the breath test, but her request was denied and her license was suspended. In reversing the suspension, the trial court found the licensee's explanation to be credible and that her conduct did not constitute a refusal. This Court affirmed. The licensee had been arrested only an hour before she failed the breathalyzer test, well within the two-hour window required for chemical testing under the Vehicle Code. There was no evidence in Bomba that the licensee was exhibiting dilatory behavior. We rejected PennDOT's contention that a licensee is entitled to one and only one chance to provide a breath sample.
Section 3802(a)(2) of the Vehicle Code establishes the "two-hour rule," providing:
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.
Unlike the licensee in Bomba, Licensee was given three chances to provide a sufficient breath sample, but each time he failed to do so. There is no evidence that Licensee was distraught or upset during the test. Licensee offered no explanation for his inability to produce an adequate breath sample. Based on the circumstances, Licensee was not entitled to further attempts beyond the three he was given. We agree with the trial court that Licensee's failure to provide a sample in this case constituted a refusal to consent to chemical testing.
Licensee is incorrect that his conduct cannot be considered a refusal because he offered to submit to a blood test. In McGee, 803 A.2d at 259, this Court held that the police officer, not the licensee, chooses which type of test will be administered. Because the officer in McGee chose to administer a breath test, he could deny the licensee's request for a different type of test. Id. at 259-60. Likewise, in the case sub judice, because Officer Phillips and Trooper Munez decided to administer a breath test, they were under no obligation to administer a blood test at Licensee's request.
Furthermore, the officers in this case did not have time to administer a different type of test. As noted, the Vehicle Code provides that an individual must be tested for chemical impairment within two hours after they last operated a motor vehicle. 75 Pa.C.S. § 3802(a)(2). Unlike in Bomba, where only an hour elapsed between the licensee's arrest and her failed breathalyzer test, significantly more time had passed in the present case. Licensee was arrested at approximately 4:00 a.m. and failed to complete the breathalyzer test at 5:41 a.m., at which time he requested a blood test. This left less than 20 minutes for the officers to administer a blood test, as opposed to the hour that remained in Bomba for the licensee to attempt a second breath test.
Accordingly, we affirm the trial court's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of April, 2012, the order of the Court of Common Pleas of Philadelphia County dated March 16, 2011 in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
75 Pa.C.S. § 3802(a)(2) (emphasis added).