IN THE COMMONWEALTH COURT OF PENNSYLVANIA Linda A. Belice, : : Appellant : : v. : No. 596 C.D. 2013 : Submitted: October 4, 2013 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: December 20, 2013 This matter is an appeal from an order of the Court of Common Pleas of Indiana County (trial court) denying the appeal of Linda A. Belice (Licensee) from the one-year suspension of her driver s license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) for refusal of chemical testing pursuant to the Implied Consent Law, Section 1547(b)(1)(i) of the Vehicle Code. 1 1 Section 1547 (b) of the Vehicle Code provides, in relevant part: We affirm. (b) Suspension for refusal.- (1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: (i) Except as set forth in subparagraph (ii), for a period of 12 months. (Footnote continued on next page )
The Department notified Licensee that her driver s license was being suspended for a period of one year for her refusal to submit to chemical testing on September 2, 2012. (January 29, 2013 Hearing Transcript (H.T.) at 3-4, Reproduced Record (R.R.) at 4a-5a.) Licensee filed a timely appeal to the trial court, and the trial court held a de novo hearing on the license suspension on January 29, 2013. At the de novo hearing, the Department offered the testimony of the arresting officer, Trooper Scott M. Smith, a 14-year veteran of the Pennsylvania State Police, and Corporal John Aloi, a certified intoxilyzer operator who administered the testing at issue at the Indiana state police barracks. Trooper Smith testified that, together with another state policeman, he responded to the report of a traffic accident on the night in question and, upon arrival, observed a Buick sedan that had rear-ended a black pick-up truck at a construction zone temporary red light. (H.T. at 5, R.R. at 6a.) Trooper Smith testified that Licensee was sitting in the driver s seat of the Buick sedan, confused and crying and, when he requested her registration and insurance, she handed him a restaurant menu. (H.T. at 6, R.R. at 7a.) He stated that Licensee s eyes were red and glassy, and there was a strong odor of alcohol emanating from the vehicle; when Licensee emerged from it, she had difficulty walking. (H.T. at 6-7, R.R. at 7a-8a.) Based upon his observations, Trooper Smith arrested Licensee for suspicion of DUI, and he transported her back to the state police barracks. (H.T. 6, R.R. at 7a.) Corporal Aloi testified that a yearly calibration test and 30-day accuracy test were performed on the intoxilyzer machine in accordance with (continued ) 75 Pa. C.S. 1547(b)(1)(i). 2
department regulations, and certificates of accuracy and calibration were introduced and admitted into evidence. (H.T. at 25-30, 33-37, R.R. at 26a-31a, 34a-38a.) In Trooper Smith s presence, Corporal Aloi read Licensee the DL-26 form warnings, 2 and Licensee signed the form. (H.T. at 8, R.R. at 9a.) Corporal Aloi testified that Licensee indicated to him that she would take the breath test, and he explained that he needed two identical samples, and demonstrated how to breathe in deeply and then exhale air in one even breath. (H.T. at 28, R.R. at 29a.) Corporal Aloi testified that he attempted three separate breath tests: in the first, for the entire 120 seconds of the test, Licensee took quick breaths, blowing them out each time, resulting in an invalid sample. (H.T. at 29, R.R. at 30a.) He stated that he informed Licensee that she was not breathing properly, re-set the instrument, and asked Licensee again if she wanted to take the test; he explained to Licensee that if she could not perform the test she would be taken to the hospital for a blood test. (H.T. at 30, R.R. at 31a.) Licensee agreed to take the test a second time, but on this attempt, she took a deep breath and blew the breath out with such force that she put saliva into the mouthpiece and only blew a fraction of the breath and stopped blowing completely, so that the instrument did not receive the required amount of air, and the sample was invalid. (Id.) Corporal Aloi testified that Licensee then indicated to him that she was not refusing the test, and she did not want to have a blood test because she was afraid of needles, so he re-set the instrument for a third attempt. (H.T. at 31, R.R. at 32a.) On this attempt, Licensee became very theatrical, started crying and hyperventilating, and she would give short samples, and it could be seen from the test graph that her breath was barely 2 A DL-26 form contains the warnings an officer must read to an individual suspected of driving under the influence before conducting a chemical test on that individual. See generally Commonwealth v. McCoy, 601 Pa. 540, 975 A.2d 586 (2009). 3
introducing into the instrument. And then just before she quit she blew two high spike samples, which were two quick exhales. And then she stopped blowing. (Id.) At that point, Corporal Aloi deemed Licensee s failure to follow instructions and provide a proper sample to constitute a refusal of the breath test, and he recommended to Trooper Smith that he take Licensee for a blood test. (H.T. at 32, R.R. at 33a.) Corporal Aloi stated: I would say that from the point [Licensee] put the mouthpiece in her mouth she quit cooperating because the breaths were not provided properly. She was instructed, demonstrated as a single exhale of air. And, as you can see by the graphs, on all three attempts, the second attempt she blew so fast and so hard that it just roller-coastered. (H.T. at 44, R.R. at 45a.) Trooper Smith then transported Licensee to the Indiana Regional Medical Center, where she refused a blood test. (H.T. at 18, R.R. at 19a.) He testified that he did not read Licensee the DL-26 form warnings again at the hospital, because it had been previously done. (H.T. at 20-21, R.R. at 21a-22a.) At the hearing, Licensee testified that she had been drinking on the night of the accident. (H.T. at 50, R.R. at 51a.) She stated that when she blew into the intoxilyzer the first time, she thought that she was doing it correctly. (H.T. at 47, R.R. at 48a.) She stated that on the second attempt, she was trying to do it the way Corporal Aloi was asking her to do it. (H.T. at 48, R.R. at 49a.) She testified that she remembers trying to blow into the instrument on the third attempt, but by that time, she was probably having a hard time breathing, and she was upset and confused; she did not recall whether she indicated to Corporal Aloi that she was afraid of needles. (H.T. at 48-49, R.R. at 49a-50a.) She stated that she remembers 4
signing something at the police barracks, but that she does not remember having been read the DL-26 warnings. (H.T. at 50, R.R. at 51a.) The trial court denied Licensee s appeal; the trial court found that the Department had satisfied its burden in proving that Licensee refused to submit to the breath test, and stated that the finding that she refused is supported by substantial evidence. (Trial Court March 12, 2013 Opinion and Order at 6.) This appeal followed. 3 In a second opinion issued pursuant to Pa. R.A.P. 1925(a), the trial court addressed Licensee s argument that since the intoxilyzer machine used in her breath test has been found to be unreliable, a refusal cannot be deemed to have occurred. (Trial Court May 13, 2013 Opinion (5/13/13 Tr. Ct. Op.)) The trial court noted that a Dauphin County Court of Common Pleas case, Commonwealth v. Jason Richard Schildt, 4 Docket No. CP-22-CR-0002191-2010, reversed and remanded, Docket No. 196 MDA 2013 (Pa. Super. Sep. 5, 2013), petition for allowance of appeal, Docket No. 757 MAL 2013 (Pa. Sup. Ct. October 4, 2013), 3 This Court s standard of review of a trial court order sustaining a license suspension based upon a refusal to submit to chemical testing is limited to determining whether the trial court s findings are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 17 n.5 (Pa. Cmwlth. 2010); Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 n.1 (Pa. Cmwlth. 2010). 4 In Schildt, the Dauphin County Court of Common Pleas found the intoxilyzer machine used was not accurate beyond a blood alcohol reading of 0.15 percent (and the Commonwealth could not therefore prove beyond a reasonable doubt that the defendant was so intoxicated as to qualify him for the heightened statutory sentence). Before the trial court, Corporal Aloi testified that since Schildt has been handed down and while on appeal, the Pennsylvania State Police have suspended the use of the intoxilyzer machine. (H.T. at 39, R.R. at 40a.) In its September 5, 2013 decision to reverse and remand, the Superior Court did not address the accuracy of intoxilyzer machines, but held that issues of accuracy go to the weight of the evidence presented against the defendant, and so should be raised and challenged at trial. 5
upon which Licensee relies, is a non-precedential opinion and further, is irrelevant in a refusal case. Before this Court, Licensee argues that the Department failed to establish its prima facie case: she avers that her actions did not constitute a refusal to take the breath test, and states that she did not submit to the blood test because she was afraid of needles. (Licensee s Brief at 8-10.) Further, she states that her refusal to take the blood test was excusable, because the police officers failed to inform her why the second test was necessary, and failed to provide the DL-26 warnings at the hospital, prior to requesting the blood test. (Id. at 9-10.) To sustain a driver s license suspension under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. 1547(b)(1), the Department must prove that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver s license. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 18 (Pa. Cmwlth. 2010) (quoting Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa.Cmwlth. 2009)). If the Department satisfies this initial burden of proof, the driver s license suspension must be affirmed unless the licensee shows that she was physically unable to take the test or that her refusal was not knowing or conscious. Sitoski, 11 A.3d at 18; Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). Failure to supply adequate breath samples to complete a breath test despite reasonable opportunity to do so constitutes a refusal to submit to chemical testing, even if licensee made good faith efforts to comply, unless the licensee shows that he was physically unable to produce a breath sample as a result of a medical condition unrelated to intoxication. Burkhart v. 6
Department of Transportation, Bureau of Driver Licensing, 934 A.2d 161, 164 (Pa. Cmwlth. 2007); Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002) (en banc). See also Bell v. Department of Transportation, Bureau of Driver Licensing, 607 A.2d 304, 308 (Pa. Cmwlth), appeal denied, 533 Pa. 613, 618 A.2d 403 (1992) (licensee s testimony that she was crying, nervous, and confused was insufficient to satisfy her burden of proof that she was incapable of making a knowing and conscious refusal to submit to chemical testing). The Department satisfied its burden of proof here. There was substantial, unrefuted evidence that Licensee was warned of the consequences of failing to comply with the breath test. In addition to reading Licensee the DL-26 warnings, Corporal Aloi stated that throughout the administration of the breath test, he explained to Licensee in layman s terms the loss of license, what is going to happen, it wasn t an option, and you had the right to ask for one more sample or one more breath options, test options, whether it be blood, breath or urine. We did have that discussion. (H.T. at 43, R.R. at 44a.) There was also substantial, unrefuted evidence that Licensee failed to supply adequate breath samples despite three attempts, and that Licensee made no showing that she was physically unable to produce adequate breath samples due to a medical condition. Licensee s argument that her refusal to take the blood test at the hospital was excusable must also fail. Licensee s stated fear of needles, without competent evidence of a medical reason therefore, cannot stand as a legitimate basis for refusing a blood test. Wright v. Department of Transportation, Bureau of Driver Licensing, 788 A.2d 443 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 712, 796 A.2d 989 (2002). Nor are we persuaded by Licensee s argument that the police officers erred in failing to provide DL-26 warnings again at the hospital; 7
Trooper Smith was under no obligation to re-read the DL-26 warnings at the hospital because Corporal Aloi had already read them to her at the state police barracks. See Trobovic v. Department of Transportation, Bureau of Driver Licensing, 553 A.2d 531, 533 (Pa. Cmwlth. 1989). Moreover, the record demonstrates that Licensee was repeatedly advised that if she did not complete a breath test, she might be asked to take a blood test, and she was made well aware that her breath samples were invalid. Corporal Aloi testified that after the first breath test attempt, he explained to Licensee that if she could not perform the test, she would be taken to the hospital for a blood test it was at that point that Licensee first informed Corporal Aloi of her fear of needles. (H.T. at 30, R.R. at 31a.) Corporal Aloi testified as to his discussion with Licensee after she failed to complete the second breath test, and Licensee s insistence at that point that she was not refusing the breath test, but desired to take it, and she told him that she didn t want to take the blood test because she was afraid of needles. (H.T. at 31, R.R. at 32a.) After the third breath test attempt, Corporal Aloi testified that once again he asked Licensee if she was refusing the test, but Licensee had begun to hyperventilate and cry and became very theatrical; at that point, he recommended to Trooper Smith that he take Licensee for a blood test. (H.T. at 31-32, R.R. at 32a-33a.) Finally, Licensee argues that the Schildt case questions the accuracy of the intoxilyzer machine itself, and due process requires that she cannot be deemed to have refused testing conducted with equipment that has been deemed inaccurate. (Licensee s Brief at 11-12.) However, the trial court has correctly stated that a challenge to the accuracy of the intoxilyzer machine is irrelevant here, where Licensee s refusal was established from a showing that she failed to provide a proper breath sample. The trial court quoted this Court s decision in Books v. 8
Department of Transportation, Bureau of Driver Licensing, 530 A.2d 972, 973 (Pa. Cmwlth. 1987), wherein we stated, once a refusal has been established we need not concern ourselves with the operability or suitability of the machine; and further stated that a challenge to the operability of the machine is irrelevant where Licensee s refusal was established from a showing that she failed to provide a proper breath sample, and never produced a valid blood alcohol content reading. (5/13/13 Tr. Ct. Op. at 2-3.) Nothing in the Schildt case questioned the operability of the intoxilyzer or refuted the fact that the failure to supply a breath sample was caused by Licensee s refusal to cooperate. Moreover, there was uncontradicted evidence before the trial court that the intoxilyzer machine was properly calibrated and certified as accurate. For the foregoing reasons, we affirm. JAMES GARDNER COLINS, Senior Judge 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Linda A. Belice, : : Appellant : : v. : No. 596 C.D. 2013 : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : O R D E R AND NOW, this 20 th day of December, 2013, the order of March 12, 2013 of the Indiana County Court of Common Pleas in the above-captioned case is AFFIRMED. JAMES GARDNER COLINS, Senior Judge