M. Mushinsky v. PennDOT, Bureau of Driver Licensing, M. Mushinsky v. PennDOT, Bureau of Driver Licensing

On November 14, 2015 Licensee Marie Mushinsky was involved in a minor vehicle accident; officer smelled alcohol, found her unsteady, and arrested her for suspected DUI.
At the Luzerne County DUI Center Detective Casey administered an evidentiary breath test on a Datamaster device. The first sample produced a 0.259% BAC reading but reflected an irregular breathing pattern.
During the second test the Datamaster registered a “suck-back”/invalid sample after Licensee’s breath faded and she inhaled, invalidating the second sample.
Detective informed Licensee she had not performed the test correctly and recorded a refusal; Licensee refused to sign the DL-26 form.
DOT suspended Licensee’s driver’s license for one year for refusal under the Implied Consent Law; Licensee appealed, and the trial court granted her appeal. DOT appealed to the Commonwealth Court.
The Commonwealth Court reviewed whether Licensee’s failure to provide a valid second sample constituted a legal refusal and reversed the trial court, reinstating the one-year suspension.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Licensee "refused" chemical testing under 75 Pa. C.S. § 1547 when a second breath sample was invalidated.	Mushinsky argued she made a good-faith attempt, was not given a third chance or blood test, and did not intentionally refuse.	DOT argued multiple improper attempts and failure to follow instructions amounted to a refusal; good-faith attempts do not negate refusal absent medical inability.	Court held invalid second sample and failure to follow instructions constituted a refusal; reinstated one-year suspension.
Whether good-faith effort can excuse failure to produce a valid sample.	Mushinsky relied on Bomba to argue good-faith inability followed by request to retest negates refusal.	DOT contended precedent holds even good-faith attempts that result in insufficient samples are refusals absent proven medical incapacity.	Court rejected Mushinsky’s reliance on Bomba as distinguishable and applied precedent finding good-faith attempts insufficient to avoid refusal.
Whether DOT failed to administer tests within a statutory two-hour window (affecting validity).	Mushinsky asserted timing challenge under 75 Pa. C.S. § 3802(a)(2).	DOT maintained tests occurred within two hours and timing provision is not a basis to overturn civil license suspension.	Court found timing argument meritless: tests were within two hours and timing relates to criminal impairment statute, not civil suspension defense.

Budd v. Department of Transportation, 442 A.2d 404 (Pa. Cmwlth. 1982) (failure to supply sufficient breath sample tantamount to refusal)
Pappas v. Department of Transportation, 669 A.2d 504 (Pa. Cmwlth. 1996) (good-faith attempts do not excuse failure absent medical reason)
Kilrain v. Department of Transportation, 593 A.2d 932 (Pa. Cmwlth. 1991) (anything less than a completed breathalyzer reading constitutes refusal)
Sweeney v. Department of Transportation, 804 A.2d 685 (Pa. Cmwlth. 2002) (same: insufficient sample equals refusal absent medical proof)
Bomba v. Department of Transportation, 28 A.3d 946 (Pa. Cmwlth. 2011) (distinguishable precedent where licensee made single attempt, immediately sought retest and was denied)
Mueller v. Department of Transportation, 657 A.2d 90 (Pa. Cmwlth. 1995) (question of refusal is legal issue subject to plenary review)
McCloskey v. Department of Transportation, 722 A.2d 1159 (Pa. Cmwlth. 1999) (scope of review for trial court factual findings and legal errors)
Sitoski v. Department of Transportation, 11 A.3d 12 (Pa. Cmwlth. 2010) (civil license appeal cannot be used to vindicate alleged defects in criminal proceedings)