Opinion
No. 2150 C.D. 2012
07-11-2013
Glenda Lopez-Pabon, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Glenda Lopez-Pabon (Licensee) appeals from an order of the Court of Common Pleas of Montgomery County (trial court). The trial court denied Licensee's statutory appeal of the suspension of her driving privileges by the Department of Transportation, Bureau of Driver Licensing (DOT), for refusing to submit to chemical testing pursuant to Section 1547(b)(1)(i) of the Vehicle Code (Code). Licensee contends that the trial court erred in concluding that her conduct during breath sample testing constituted a refusal to submit to testing. We affirm the trial court's order.
75 Pa. C.S. § 1547(b)(1)(i). Section 1547(b)(1)(i) of the Code provides that if any person who is arrested 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 privileges of the person . . . for a period of 12 months." This provision is commonly known as the Implied Consent Law.
DOT's regulation regarding chemical testing by breathalyzer is pertinent to this matter, and we note that 67 Pa. Code § 77. 24 requires authorities to obtain two consecutive valid breath samples.
On January 19, 2012, Limerick Township Police Officer David Bartok arrested Licensee and charged her with driving under the influence of alcohol. On February 16, 2012, DOT sent a notice of suspension to Licensee, informing her that her driving privileges were suspended for a one (1)-year period as a result of her refusal to submit to chemical testing following her arrest. Licensee filed a statutory appeal of the suspension notice, and the trial court conducted a hearing on September 17, 2012.
During the hearing, DOT introduced the testimony of Officer Bartok. Officer Bartok testified that on January 19, 2012, about ten minutes before midnight, the Limerick Township Police dispatched him to investigate a vehicle accident. Officer Bartok testified that he arrived at the scene of the accident about ten minutes later. He observed Licensee sitting in her car, which had left the roadway and landed at the bottom of a water retention basin or ravine. Officer Bartok noted that he detected smoke coming from a deployed airbag, and when he approached Licensee, he detected an odor of alcohol on her breath. Officer Bartok testified that, upon questioning, Licensee admitted that she had consumed two glasses of champagne. Officer Bartok testified on cross-examination that he initially attempted to obtain a breath sample using a portable breath test, but that Licensee "was not properly breathing into the device to give me an adequate answer of whether or not I felt that she was within a certain level of intoxication." (Reproduced Record (R.R.) at 21a.)
Officer Bartok testified that he then requested Licensee to perform two field sobriety tests, which he deemed Licensee to have failed. Thereafter, he placed Licensee under arrest and took her to the "Pottstown Fast Track," which apparently is a location where police authorities conduct breathalyzer testing on persons who have been arrested and are suspected of driving under the influence of alcohol.
DOT also offered the testimony of Deputy James Regan of the Montgomery County Sheriff's Department. Deputy Regan was the officer who operated the breathalyzer machine, known as a DataMaster, in attempts to obtain breath samples from Licensee. Deputy Regan testified regarding his attempts to obtain adequate breath samples from Licensee. Deputy Regan testified that he provided a complete demonstration to Licensee regarding how to perform the test. Deputy Regan testified that he informed Licensee that, in order to obtain a valid result, she would need to provide one consistent breath. In describing the manner of testing, he testified that he instructed Licensee that "[o]nce you start blowing into it, do not start and stop, do not inhale." (R.R. at 40a.) Deputy Regan testified that the breathalyzer machine will emit an on-going complete tone if the subject of the test provides a continuous breath as required, but that if the subject does not provide such a breath, the breathalyzer will not emit a constant sound. (R.R. at 41a.)
Deputy Regan testified regarding his certification to operate the DataMaster breathalyzer machine. DOT also offered as exhibits during Deputy Regan's testimony an accuracy test certification and calibration certification for the particular DataMaster machine that Deputy Regan operated during his testing of Licensee.
With regard to Licensee's testing, Deputy Regan testified that she made her first attempt at 1:14 a.m. (R.R. at 47a.) Deputy Regan testified that because Licensee did not provide a consistent breath, but rather stopped and started her breathing into the breathalyzer tube, he recorded that testing attempt as a failure. (R.R. at 45a.) Deputy Regan testified that Licensee failed in her next two attempts to provide a sufficient breath sample and that the tone of the breathalyzer indicated that Licensee again stopped and started her breathing into the tube. (R.R. at 46a.) Deputy Regan testified that Licensee's fourth attempt was successful and she provided a valid sample. (R.R. at 48a.) With regard to this success, Deputy Regan testified that "[a]t that time she did provide a valid sample, but it was a little contentious. It's like I really had to work to get it." (Id.) Deputy Regan attempted to obtain a consecutive valid sample, but, he testified, "she wasn't giving a proper sample . . . she wasn't giving me complete breath. The [breathalyzer] was giving me broken tones again, and then . . . I put in a refusal." (R.R. at 49a.)
We note that Deputy Regan's testimony could be interpreted to mean that Licensee's third sample was valid, but our review of the DVD recording of Deputy Regan's attempts indicates that he could not obtain a valid sample until Licensee's fourth attempt. (Licensee's Hearing Ex. D.)
Officer Regan also testified on cross-examination regarding the effect of inhaling while attempting to provide a breath sample, as follows:
Q. And that was actually my point, is that any inhalation would result in an improper sample or improper testing procedure?
A. Well, the instrument would come up as a reading as is this a refusal. Now I can either push a yes or no. And if the person is cooperating, I'm going to push no and give her another opportunity to do it. And that's when the instrument has to purge itself out again and then we can redo the test.(R.R. at 60a.) Deputy Regan also testified, however, that he did not "remember her inhaling at all, sir. I just remember it was a broken breath. All four times I don't remember any inhaling." (R.R. at 61a.)
Q. So because an inhalation could adversely affect the test, you would never instruct an individual to inhale during the test administration?
A. No, I would not.
Q. Do you know in this case you did exactly that? Do you know that after the fourth test you told [Licensee] that if she had any problems in providing a breath sample and needed to inhale, she should inhale through her nose? Do you recall that?
A. No, I don't sir.
We note again that it seems apparent that in his testimony Deputy Regan thought he had only attempted four rather than five tests.
Licensee offered her own testimony regarding the fifth and final sample she provided. Licensee testified that Deputy Regan "said that if I needed to take a breath, to inhale through your nose." (R.R. at 82a-83a.) A review of the DVD supports Licensee's testimony in this regard, as Deputy Regan did state to Licensee that she could inhale through her nose. Licensee testified that she did inhale through her nose during the course of the fifth test "because I felt that, those, like the last tests were extremely long and I couldn't exhale anymore." (Id. at 83a.)
The trial court dismissed Licensee's appeal and reinstated the suspension of her driving privileges. In doing so, the trial court concluded that DOT satisfied its burden of proof and that Licensee failed to demonstrate that Deputy Regan's apparently inconsistent instruction before the final attempt to obtain a second valid sample was the reason she could not provide a valid sample. (Trial Ct. Decision at 6.) Licensee then appealed to this Court.
On appeal, Licensee raises the question of whether Deputy Regan's inconsistent instruction given before Licensee's fifth attempt to provide a valid breath sample precluded Licensee from having a "meaningful opportunity" to comply with Section 1547(b)(1)(i) of the Code. In other words, Licensee contends that Deputy Regan's inconsistent instruction preceding her fifth attempt to provide a sample negated conduct that otherwise would clearly constitute a refusal under the Implied Consent Law.
This Court's review of an order of a trial court denying a licensee's statutory appeal from a license suspension by DOT is limited to considering whether the trial court's factual findings are supported by competent evidence, and whether the trial court erred as a matter of law or demonstrated a manifest abuse of discretion. McCloskey v. Dep't of Transp., Bur. of Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth.), appeal denied, 559 Pa. 708, 740 A.2d 235 (1999). --------
In order to suspend a licensee's driving privileges for refusing to submit to chemical testing, DOT must establish the existence of the following elements: (1) police arrested the licensee based upon reasonable grounds to believe that the licensee was operating a motor vehicle while under the influence of alcohol; (2) the police asked the licensee to submit to a chemical test; (3) the licensee refused to submit to testing; and (4) the police warned the licensee that refusing to submit to testing would result in license suspension. Bomba v. Dep't of Transp., Bur. of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011).
The focus of the issue in this case is whether DOT established that Licensee refused to submit to chemical testing. In considering whether a licensee has refused to submit to chemical testing, "[a]ny response that is less than an unqualified, unequivocal assent to a chemical test constitutes a refusal." Id. Conduct that appears inconsistent with verbal acquiescence also may constitute a refusal. Id. Additionally, part of DOT's burden includes establishing that the arresting authorities provided a licensee with a meaningful opportunity to comply with Section 1547 of the Code. Solomon v. Dep't of Transp., Bur. of Driver Licensing, 966 A.2d 640, 642 (Pa. Cmwlth.), appeal denied, 603 Pa. 678, 982 A.2d 67 (2009).
Licensee argues that the inconsistent instructions Deputy Regan provided effectively denied her a meaningful opportunity to comply with Section 1547 of the Code. In addressing the question of whether a licensee has been offered a meaningful opportunity to comply with the implied consent requirements, the Courts have generally considered fact situations in which the authorities' actions resulted in a denial of an opportunity to submit to testing. See Brown v. Dep't of Transp., Bur. of Driver Licensing, 738 A.2d 71 (Pa. Cmwlth. 1999) (driver's refusal to leave her young child with strangers while being transported to hospital was not refusal under Section 1547 of the Code); Lutz v. Dep't of Transp., Bureau of Driver Licensing, 734 A.2d 478 (Pa. Cmwlth. 1999) (motorist who refused to sign hospital financial responsibility form because he could not afford to pay for financial costs of testing was not provided meaningful opportunity to comply).
In this case, Deputy Regan offered Licensee an opportunity to submit to a fifth test. The trial court understood that Deputy Regan told Licensee that she could breathe through her nose, but the trial court specifically determined that Licensee had not proved her factual contention that it was Deputy Regan's faulty instruction that caused her failure to provide a valid sample during her last attempt. Rather, the trial court, after reflecting on Licensee's conduct in her previous attempts (her inability to provide valid samples in her first three attempts and her difficulty in producing a valid result in her fourth attempt), apparently concluded that Licensee was not credible when she claimed that she inhaled during the fifth attempt.
Although Licensee attempts to liken this case to one involving lack of a meaningful opportunity to comply with Section 1547 of the Code, we believe this case more appropriately may be characterized as involving the question of whether or not Licensee's conduct constituted a refusal. In analyzing Licensee's conduct, we must consider whether she made a good faith but unsuccessful attempt to supply a valid sample. If so, the question becomes whether Deputy Regan's inconsistent instruction caused her to be unable to provide the valid sample, such that her conduct should not have been regarded as a refusal. We find our decision in Department of Transportation v. Berta, 549 A.2d 262 (Pa. Cmwlth. 1988), to be instructive. In that case, and cases which followed, we held that although a licensee may make what he describes as a good faith attempt to supply sufficient breath, such a failed attempt still will constitute a refusal in the absence of medical evidence that a licensee is physically incapable of providing sufficient breath. We note that even when a licensee claims to have a medical excuse that prevents him from providing sufficient breath, he or she must present sufficient and competent evidence to support the alleged excuse.
Here, we need not consider whether Deputy Regan's inconsistent instructions provided Licensee with a legal excuse for not providing sufficient breath for a valid sample, because the trial court discredited her testimony that Deputy Regan's incorrect instructions were the reason for her failure. Rather, the trial court made a factual determination that Licensee did not provide sufficient breath because of other reasons, including her inability to do so in three of her four previous attempts. It is the trial court's function, not this Court's, to decide the credibility of witnesses and to reconcile conflicts in the evidence. Rich v. Cmwlth., 458 A.2d 1069, 1071-72 (Pa. Cmwlth. 1983). In this case, the trial court correctly identified the issue before it as involving credibility. Determinations of credibility are not within our scope of review. Id. at 1072.
Accordingly, we conclude that the trial court did not err in sustaining DOT's suspension of Licensee's driving privileges based upon her refusal to submit to chemical testing.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 11th day of July 2013, the order of the Court of Common Pleas of Montgomery County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge