86 A.3d 344
Pa. Commw. Ct.2014Background
- Licensee Patricia Campbell was charged with DUI after a February 12, 2012 arrest by Montgomery Township Police Officer Deussing.
- DOT suspended Campbell’s operating privileges for one year for refusing to submit to chemical testing under the Implied Consent Law.
- A February 4, 2013 statutory appeal hearing followed the suspension notice issued March 27, 2012.
- Deputy Rorick, a certified breath test operator, administered the breath test after warnings under Implied Consent were read.
- Two breath-sample attempts by Campbell were deemed incomplete; testing was discontinued and a second, then a stated refusal, was recorded.
- The trial court denied the appeal; Campbell argues the DOT failed to prove a prima facie case and that Deputy Rorick is not a qualifying police officer under the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOT established the Implied Consent warning element against Campbell | Campbell argues Deputy Rorick wasn’t a police officer under 1547 and thus warnings weren’t properly given | DOT contends the warning element can be satisfied even with a deputy and that Campbell waived the issue | Waived; the issue was not timely raised and is not required to be reconsidered on appeal |
| Whether Campbell preserved the warning issue before the trial court | Campbell raised the issue at the appellate stage, not at trial | Waiver applied due to failure to raise during trial | Issue waived |
| Whether Deputy Rorick afforded a reasonable opportunity to complete the breath test | Campbell did not deliberately delay; she tried to provide a sample | Rorick provided explicit instructions and multiple opportunities; Campbell failed to comply | Two opportunities provided; sampling failures justified a refusal; testing compliant with law |
Key Cases Cited
- Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa.Cmwlth. 2011) (DOT must show reasonable and sufficient opportunity to test; facts control)
- Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336 (Pa.Cmwlth. 2010) (waiver where issues not raised to affect DOT’s initial burden)
- Thoman v. Dep’t of Transp., Bureau of Driver Licensing, 965 A.2d 385 (Pa.Cmwlth. 2009) (waiver for not raising Implied Consent warning issue)
- Renna v. Dep’t of Transp., Bureau of Driver Licensing, 762 A.2d 785 (Pa.Cmwlth. 2000) (preservation and waiver principles in DUI suppression appeals)
- In re Lokuta, 11 A.3d 427 (Pa. 2011) ( Supreme Court: raise issues at earliest opportunity; waiver admonition)
- Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989) (recusal/ disqualification must be raised at the earliest opportunity)