Bomba v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
2011 Pa. Commw. LEXIS 462
| Pa. Commw. Ct. | 2011Background
- Licensee Heather Bomba was arrested for DUI in Pittsburgh on Oct. 25, 2009, leading PennDOT to suspend her license for 12 months due to alleged refusal to submit to chemical testing.
- The Court of Common Pleas sustained Licensee's statutory appeal, finding her conduct did not constitute a refusal.
- At the suppression hearing, Officer Lawniczak testified Licensee consented to a breath test and signed Form DL-26; the first breath sample was insufficient within the two-minute window.
- Licensee attempted to provide a single breath sample, then immediately requested a second test; the officer stated the second test would take about ten minutes.
- Licensee argued she never refused and had merely failed to provide a sufficient sample; PennDOT argued a single attempt suffices and that a failure to provide a proper sample constitutes a refusal.
- The trial court held Licensee did not refuse; PennDOT appealed, and the Commonwealth Court affirmed, distinguishing prior cases as factually distinguishable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Licensee's failed breath sample amount to a refusal? | Bomba did not refuse; she tried to comply and immediately sought a second attempt. | Failure to complete a valid breath sample constitutes a refusal under controlling precedent. | Not a refusal; conduct did not show deliberate delay or noncompliance. |
| Was PennDOT required to offer a second breath test after an inadequate first sample? | Argues the officer should have offered a second test given immediate request to retake. | Officer was not required to provide a second opportunity in every case; one chance suffices absent stall tactics. | Second test was not mandated under these facts; no delay or stall tactics were shown. |
| Whether the evidence shows licensee deliberately delayed or undermined testing in light of the relevant case law? | Licensee acted in good faith and immediately sought a second chance. | Cases require consideration of potential delays to avoid inaccurate results; here delay was not implicated. | PennDOT failed to prove deliberate delay; Licensee's conduct did not constitute a refusal. |
Key Cases Cited
- Commonwealth v. Belle, 105 Pa. Cmwlth. 468 (Pa. Cmwlth. 1987) (delay in testing raises concern for accuracy; not applicable where no delay shown)
- Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685 (Pa. Cmwlth. 2002) (failure to complete a breathalyzer constitutes a refusal unless good faith attempts shown)
- Kilrain v. Department of Transportation, Bureau of Driver Licensing, 593 A.2d 932 (Pa. Cmwlth. 1991) (multiple attempts to complete a second breathalyzer can still be considered a refusal if no effort to comply)
- Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236 (Pa. Cmwlth. 2003) (total conscious effort to supply a sufficient breath sample required)
- Ferrara v. Department of Transportation, Bureau of Traffic Safety, 89 Pa. Cmwlth. 549 (Pa. Cmwlth. 1985) (police not required to cajole or wait for an arrestee to change mind)
- Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Cmwlth. 2003) (any response less than unqualified assent constitutes a refusal)
- Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236 (Pa. Cmwlth. 2003) (reiterates requirement of total conscious effort to provide a sample)
- Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268 (Pa. Cmwlth. 2007) (to sustain suspension, must show lawful grounds, request to submit, and a refusal)
- Department of Transportation, Bureau of Driver Licensing v. O'Connell, 521 Pa. 242 (Pa. 1989) (credibility is for the trial court)
- Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth. 1995) (review standard for refusal questions)