*1 Flora SWEENEY Pennsylvania,
COMMONWEALTH
DEPARTMENT OF TRANSPORTA
TION, LI BUREAU OF DRIVER
CENSING, Appellant. Pennsylvania.
Commonwealth Court Briefs Nov. 2000.
Submitted on July
Decided 2002.
Reargument En Banc Denied
Aug. 2002. Wile, P. Timothy N.
Elaine Blass In-Charge, Harrisburg, Asst. Counsel appellant. Boas, Pittsburgh, appellee.
Paul D.
DOYLE,
Judge,1
Before
Senior
McGINLEY,
SMITH-RIBNER,
Judge,
PELLEGRINI, Judge,
Judge,
FRIEDMAN,
KELLEY,
Judge,
Senior
FLAHERTY,
Judge.
Judge, and
Senior
Judge
BY
DOYLE.
OPINION
Senior
Pennsylvania,
The Commonwealth
Bureau
(DOT)
appeals from
Licensing
Driver
of Common Pleas
order of
Court
which
Allegheny County,
sustained
chal-
Flora
statutory
one-year
of a
lenging
imposition
DOT’s
driving privilege pursu-
suspension
her
1547(b)(1) of
Vehicle
section
ant to
(Code).2
reverse.
We
Code
judge
prior
on December
assigned
case
to the date
die status
senior
1. This
Judge Kelley
Judge Doyle
when President
January
judge
assumed the status of senior
Code,
1547(b)(1) of the
75 Pa.C.S.
Section
1, 2002,
Judge Flaherty
assumed
when
1547(b)(1)provides:
§
*2
suspended Sweeney’s driving privi-
Sweeney presented
DOT
Winek,
lege
reported
as the result of a
L.
a professor
refusal to Charles
of toxicolo-
and,
testing.
gy Duquesne University
submit to chemical
at
Sweeney
previous-
filed
Pleas,
ly,
the chief
toxiсologist
Allegheny
with Common
which held
(R.R.
de novo
County
thirty-two years.
a
hearing.
at
35a.) Winek testified that he “started the
hearing,
At the
presented
the testi-
in
testing program
Allegheny
mony of Officers Matthew Cornwall and County in
“taught
1966” and
it continuous-
McQuillan.
Howard
Officer Cornwall tes-
ly until
fur-
1998.”
at
Winek
(1)
tified that:
stopped Sweeney’s
he
vehi-
ther testified:
10, 1998,
cle April
because the vehicle
Q.
you
Can
tell us whether the check
(2)
through
light;
went
a red
he detected
through,
the machine runs
an odоr
coming
of alcohol
from the interior
they
when
it
and the cali-
up
start
(3)
vehicle;
Sweeney
explained that
machine,
bration of the
has
re-
just
she had
off
dropped
friends who had
function of the
lationship to the
(4)
been drinking;
performed
he
field so-
registering
machine that deals with
(4)
tests;
briety
Sweeney staggered while
samples?
insufficient
trying
line;
to walk
in straight
heel-to-toe
my knowledge,
A. To
it does not. The
(5)
he transported Sweeney to the
aspect
deficient
is a feed-
[a]
police
McQuillan,
station so that Officer
cylinder
back mechanism when the
qualified
administrator,
test
could adminis-
filled;
cylinder,
fill
order to
ter a breath
(Reproduced
test.
Record
you
pressure
enough
to have
(R.R.)
17a-18a.)
10a-15a,
by
overcome the
offered
cylinder in the instrument.
(1)
testified that:
by
cylin-
And the resistance offered
Sweeney readily agreed to submit
generally
der varies.
It is
set at
testing
chemical
before he even read her
factory
six
(2)
the warnings;
he
Sweeney
instructed
square
people
inch. Some
cannot
to take a deep breath and blow into the
in at
blow
that level.
mouthpiece of
5000 until he
Q.
completely
healthy?
Even
(3)
stop;
Sweeney
told her to
placed the
A That
depends [on
is true.
It
mouthpiece in her mouth and formed a
(4)
individual]....
tight seal
lips;
around
with her
Sweeney
So,
attempted many
machines]
times to blow
[the
we ...
lowered
рounds
per
square
into the mouthpiece, but her breaths were
about
three
(5)
inch....
enough
not hard
or long enough;
Swee-
ney appeared
trying
to be
Q. And would ... a properly calibrated
sample;
machine have
to do
anything
with
did
him
not inform
that she suffered from
function,
whether or not the
about
26a-28a,
a breathing disorder.
blowing
working
hard enough, is
correctly?
(b) Suspension
testing
for refusal.—
shall not be conducted but
any person placed
officer,
If
undеr arrest for a
upon
police
notice
the de-
(relating
violation of section 3731
to driv-
partment
suspend
operating
shall
ing under the influence of alcohol or con-
privilege
person
period
of the
for a
of 12
substance)
requested
trolled
to submit
months.
so,
testing
to chemical
and refuses to do
Code,
1547(b)(1)
of the Vehicle
75 Pa.C.S.
A.
It doesn’t tell
no.
1547(b)(1),
§
and the law is now well es-
Q.
they
through
And
run it
when
failure to
a breath-
tablished that
ampoules,
initial
does that have
test,
good
faith
alyzer
or not
whether
anything to do with insufficient
so,
effort was made
do
constitutes
samples working properly?
*3
per
Depart
se to take the test.
refusal
A.
to my knowledge.
Not
Driver
Bureau
Transportation,
ment
Q. And if
of
working properly,
it wasn’t
of
Kilrain,
484,
v.
140 Pa.Cmwlth.
Licensing
person,
that could affect whether a
(1991), petition
932
allowance
593 A.2d
driving, registered
who was
a sam-
for
625,
denied,
A.2d 541
appeal
529 Pa.
600
blowing
or
ple
capаble
long
of
of
(1991).4
has also con-
Supreme
Our
Court
enough;
correct?
that “fail-
sidered this issue
confirmed
A. Yes.
ure
supply
sample
to
a sufficient breath
36a-38a.) Sweeney
at
testified on
[breathalyzer]
[is]
for
of the
tests
a
her own behalf that she tried the best she
testing.”
to
De
deemed refusal to submit
could to follow the officer’s instructions
partment
Transportation, Bureau
of
of
provide
sample.
and to
a breath
Boucher,
440,
Licensing v.
547 Pa.
Driver
(1997).
448,
450,
691 A.2d
454
We hаve
considering
present-
After
the evidence
consistently
that failure
a
provide
held
to
ed,
Common Pleas accepted
tes-
required for
deep lung
sample
test
timony and
Sweeney’s appeal.
sustained
ing by
Intoxñyzer
machine constitutes
explained
Common Pleas
refusal,
can
a
unless the licensee
show'
test
“made the
effort
possible
best
time
produce
to
a
that the failure
provide
samples
to
but was unable to
inability
by a
physical
due to a
caused
do so for
her control.”
beyond
reasons
to ingestion
medical condition unrelated
of
(Common
1.)
Pleas
op.
Court
Depart
Pappas
See
drugs.
alcohol
Court,3
to
appeal
On
DOT ar
Driver
Transportation,
ment
Bureau of
of
gues that Common Pleas erred in sustain
(Pa.Cmwlth.
Licensing,
A.2d
508
669
ing Sweeney’s
relying on
appeal,
numerous
1996)
a
(stating
where
licensee fails
agree.
decisions of this Court. We
effort,
a
tо “exert
total conscious
fails
a sufficient breath
thereby
supply
Our
to
statute makes
clear that
blood,
to a refusal to
sample,
refusal to take a chemical test of
such is tantamount
of Budd,
in
required finding
test”)(quoting Appeal
breath or urine is a
a
take the
65
(1982));
314, 442 A.2d
suspension,
driver’s
license
Section Pa.Cmwlth.
404
appeal arising
good
complete
to
test and
suspension
In an
from a
of a
faith effort
license,
to
clearly
driver's
our reviеw is limited
deter-
stated:
mining whether the trial court's decision is
principal
is that
[sic] [...]
The bedrock
evidence,
by competent
supported
whether
breathalyzer
complete
a
con-
failure
law, or
there has been an error of
whether the
finding
a refusal. A trial court’s
stitutes
of
trial
decision
court indicates manifest
attempt
good
made
faith
that a licensee
Transpor
Department
abuse
discretion.
breathalyzer test
is irrelevаnt
tation,
Kilrain,
Licensing v.
Bureau Driver
question of
the licensee re-
to the
whether
(1991),
A.2d 932
140 Pa.Cmwlth.
593
Anything less than a com-
the test.
fused
denied,
petition
529
allowance
registers
breathalyzer
pleted
test which
(1991).
Pa.
600
541
A.2d
breathalyzer
reading on
blood alcohol
Kilrain,
a refusal.
de-
constitutes
In
we reversed the trial court’s
added).
Kilrain,
(emphasis
at 935
had made a
A.2d
termination that
licensee
Department
Mueller v.
manner which
had instructed
Bureau
Licensing,
Driver
properly. longer, To blow blow they strument, don’t to blow harder. they blowing up
like are a bal- loon, real hard. They should be Q. stopping you Was she before told able to blow into the instrument and stop? her to fill the chamber. All right. A. Yes. Now, depending on their own ca- [vital (R.R., pp. And on redirect ex- if pacity], they capable are that. doing amination, Office testified: Q. Okay. Officer, Q. isn’t it true that during mul- made, tiple attempts So, people that she she A. there are with certain did not pulmonary blow into the machine in the chronic obstructive attempts asthma, things samples during multiple breath diseases such as refusal a test was deemed to administer nature, they take cannot (citing testing.” to Id. at to submit really should be Boucher). given a blood test. dispel misconception whatever We must good attempts faith still remains that Q. true that such—if she [I]sn’t test are sufficient long enough didn’t blow or hard 1547 of consequences Section avoid the enough 1547(b)(1). Code, Accep- § 75 Pa.C.S. conjecture possibilities tance of mere enough long A. If didn’t she blow operation Intoxi- regard with enough, proof she could not deliv- an offer of lyzer hard without in the case used specific cylinder, er fill inadequately, functioned before the court correct. years prece- would unravel of established Q. saying, though, are And viability effectively destroy dent and be may someone not able blow as an effective tool with the—with a sufficient amount unending against battle the drunken period of pressure for the time note that drivers on our roads. We *5 they required that is suffer from if recog- has Supreme Court United States type respirаtory a certain of disor- of reliability nized the effectiveness der. See, e.g., Intoxilyzer. the California A. That’s correct. 489, Trombetta, 479, 104 467 U.S. S.Ct. (1984) Now, case, Doctor, Q. in ... (commenting have L.Ed.2d 413 81 accuracy Intoxilyzer as hav- on of examined Ms. with re- requirements estab- ing passed accuracy gard respiratory disorder? Traffic Highway lished National IA. not. I not about do know Depart- of Administration the U.S. Safety respiratory system. her well as state Transportation, ment as of added.) (R.R., pp. (Emphasis certifications). in Supreme Depart Our Court Todd v. the Commonwealth We conclude ment Burean Driver requirements of clearly has met the A.2d Licensing, 555 Pa. 723 655 matter, order in this and the statute (1999), attempts held three failed Pleas Allegheny County Court Common produce completed test was a refusal to is reversed. testing, if submit to chemical even those dissents. Judge SMITH-RIBNER completed prior to attempts
three
were
dissents.
Judge KELLEY
Sеnior
Todd,
cycle.
the end
the machine
In
as
matter,
in the
the licensee claimed
instant
ORDER
consequences of an incom
that after the
NOW,
order of
July
he “exhaled
plete
emphasized,
test were
Allegheny
Pleas of
of Common
Court
able
as much force as he was
with
above-captioned matter
in the
County
and third at
generate on
second
hereby reversed.
he
failed to
tempts,” but
still
BY Judge
OPINION
DISSENTING
Id. at
Todd was found to
single test.
FRIEDMAN.
Supreme
the tеst. The
have refused
Here, the licen-
previously
remarked that
had
I
dissent.
respectfully
Court also
(1)
expert
credible
testimo-
presented:
adequate
see
supply
that “failure to
held
ny
Intoxilyzer
with a
resis-
the record contains substantial evidence to
setting
pounds
tance
above
per
three
those
support
findings. See Thomas v.
square
may
inch
prevent
sober and Unemployment Compensation Board of
healthy person
providing
Review,
from
sufficient
104 Pa.Cmwlth.
jority’s contrary holding a dan- establishes testing program in Allegheny gerous precedent, allowing penal- and, many years, County innocent ize simply motorists because the taught 5000 certification level breathalyzer of a machine police at 35a- courses officers. Thus, not set I properly. would af- *6 Intoxi- Winek testified that: the firm trial the court. lyzer registers a breath 5000 deficient Holding I. Trial Court when sample the licensee not blow does trial appeal
The
court
enough pressure
sustained the
of with
to
the re-
overcome
Sweeney
Flora
because the trial court ac-
offered by
sistance
the feedback mecha-
(2)
cepted her testimony and concluded that
the
cylinder;
nism in
instrument’s
the
made
“she
the best effort
at
possible
by
the
resistance offered
the
can
cylinder
(3)
to provide
time
the
but
un-
samples
vary;
the
the
manufacturer sets
resis-
able to do so for
beyond
reasons
her con-
at six pounds per square
tance level
inch
(Trial
1.)
However,
op.
trol.”
court
factory;
at
the
at
healthy
the
some sober and
trial court did not make specific findings
persons
provide
are unable to
sufficient
fact to indicate what it meant
“reasons
breath
when the Intoxilyzer 5000’s
beyоnd her
and,
control.”
fact finder
is at
factory setting;
Where
resistance
the
result,
to make its findings
explicit
County
fails
of fact
Allegheny
as a
decided
decision,
its
this court will examine the
the
fact
to
resistance
to three
setting
lower
(R.R.
implicit
finder’s
see
findings
pounds per square
to
whether
inch.2
at 36a-
688-689.)
Todd v.
jority op.
See
at
It is true that Winek
Licensing,
Bureau Driver
Pa.
setting
testified he does not know
of the
(1999) (stating
A.2d
that a motorist must
Sweeney April
actual machinе used to test
on
oppor-
allowed a
be
reasonable and sufficient
(R.R.
38a.) However,
there is
tunity
testing).
to
chemical alcohol
conjectural
nothing
merely possible
or
about
explanation
of the
5000's
Winek’s
majority
2. The
Winek's testimo-
characterizes
mechanism,
opinion
his
(Ma-
ny
conjecture
possibilities.
as
and mere
samples
38a.)
Winek,
breath
words,
trying
provide
to
sufficient
to
according
In other
trying when she was
keep
to
and wanted
pounds per square
any setting above three
19a.)
(R.R. at
do so.3
healthy per- unable to
may prevent
inch
sober
McQuillan
Sweeney
testified
sam- Howard
providing
son from
sufficient
breathing
disor-
him of
did not inform
ples.
(R.R. at
during
test.
prior
der
to
Second,
Sweeney’s
in order
sustain
31a.)
testify
later
that she
Sweeney would
testimony regard-
on Winek’s
based
“why it
Intoxi-
[the
could not understand
inability
healthy
ing
some
(R.R. at
work.”
lyzer
didn’t
5000]
persons
sufficient
sam-
accepted
trial court
It
clear that the
necessary
it
for the trial court to
ples, was
April
explanation
Sweeney
healthy Sweeney’s
find that
was sober and
driver
designated
had been the
she
breathalyzer
took the
test.
when she
It is
equally
of her friends.
group
testimony and
Sweeney’s
gave
weight
much
clear
the trial court
and Howard
Matthew Cornwall
Officers
no
Sweeney
signs
fact that
exhibited
implicit finding.
support
vehicle,
her
when she exited
of intoxication
testified as follows.
Officer Cornwall
her own and when she
when
stood on
she
April
stopped
He
vehicle on
gave
weight
little
spoke. The trial court
through
light.
red
1998 because went
Sweeney
did not follow Offi-
fact
inquired
the odor of alcohol
When he
about
touch heel to
cer
instruction to
Cornwall’s
vehicle,
coming from
interior of the
line.
Final-
walking
straight
toe while
just
explained that
had
Sweeney
she
Sweeney
ly,
trial court believed that
drink-
dropped off friends who had been
and considered
breathing
had no
disorder
10a-12a,
ing.
He then
during
efforts
the test
Sweeney’s sincere
Sweeney
step
asked
out
the vehicle
inability to
over her
her confusion
sobriety
had no
field
tests.
samples to be
provide sufficient breath
vehicle,
exiting
trouble
had no difficul-
sobriety.
indications
her
ty
prob-
on her
no
standing
own
had
Sweeney was sober
speech.
Given the fact that
lem with her
*7
healthy
the fact that some sober
Sweeney
straight
He
to walk in a
asked
Sweeney
healthy people
provide
cannot
suffi-
line on a downhill
but
did
grade,
Intoxilyzer
cient
when the
samples
not
his
to touch her
follow
instruction
setting is above three
transported
He then
resistance
heels to her toes.
5000’s
inch, it
square
was reasonable
police
pounds per
a breath
Sweeney to the
station for
to conclude that
18a,
During
for the trial court
test.
Intoxilyzer
test,
on
setting
in resistance
Sweeney appeared
be sincere
something
peal
“beyond her con-
ability
on
setting
person’s
affects a
based
the resistance
samples
trol,”
provide
his
accepted
sufficient
could
the trial court
not
square
McQuillan’s
opinion that three
testimony and found
setting.
proper
inch is a
problem
caused the
blow-
herself
point
I
out
ing improperly
the machine.
into
that, according
majority
to the
3. The
states
credibility are for the trial
questions McQuillan, Sweeney did
testimony Officer
Department
v.
to resolve. Burke
court
(Majori-
properly
the machine.
not blow
into
Licensing,
Transportation,
Driver
Bureau
However,
688.)
ty op.
clear from the
(Pa.Cmwlth.1999), appeal grant-
The
It
majority
important
to note
resists affirming
currently,
the trial
court in
there are no regulations
this case
governing
because it
the re-
would “effec-
sistance level of
tively
breath test
destroy
equipment.
the viability of the Intoxilyz-
Winek has testified that
er
some sober and
5000 as an effective tool in
unending
healthy people
provide
cannot
sufficient
against
battle
the drunken drivers on our
breath samples
factory
at the
689.)
roads.” (Majority op. at
I disagree.
setting of six pounds per square inch. As-
It is a simple matter for DOT to present
suming that some counties do not alter the
evidence in per se refusal cases to establish
factory setting
Intoxilyzer
particular
machine’s resistance setting.
may
have suspended the operating
Moreover, I point out that a licensee privileges of many sober and healthy licen-
once challenged the reliability of the
sees simply because they could not blow
Breathalyzer 1000 machine because radio
enough
Moreover,
breath into a machine.
signals
operation.5
interfered with its
See
this situation will continue unless DOT is
Baldinger
Commonwealth,
116 Pa.
promulgate
forced to
regulations establish-
(1986).
Cmwlth.
firm the trial court. AND
INDEPENDENT GAS ASSO OIL PENNSYLVANIA, OF Hess
CIATION Inc., Energy
Energy, TXU Services Company, New Enron Power Services, Inc., Energy
Energy UGI
Services, Inc., Energy Services, PG
Inc., Ashland, Inc., MidAmerican Nat Resources, Inc., Agway Energy
ural
Services-PA, Inc., Energy East Solu Inc., Petitioners,
tions, UTILITY
PENNSYLVANIA PUBLIC
COMMISSION, Office Consumer
Advocate Busi Office Small Advocate, Respondents.
ness of Pennsylvania.
Commonwealth Court
Argued April July
Decided