COM., DEPT. OF TRANSP. v. Kilrain

593 A.2d 932, 140 Pa. Commw. 484, 1991 Pa. Commw. LEXIS 344

• Court: Commonwealth Court of Pennsylvania
• Decided: June 18, 1991
• Docket: 108 C.D. 1990
• Status: Published

Opinions

PALLADINO, Judge.

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Court of Common Pleas of Delaware County (trial court) which reversed DOT’s suspension of Joseph Kilrain’s (Licensee) driver’s license. We reverse and reinstate the suspension.

The undisputed facts are as follows. A Haverford Township police officer (Officer) stopped Licensee after observing him operate his vehicle in a haphazard manner. Officer noticed that Licensee was unsteady on his feet, his breath smelled of alcohol and his speech was slurred. Officer requested that Licensee perform field sobriety tests, which he attempted but failed. Licensee was arrested and taken to the police department for the administration of a breathalyzer test. Officer informed Licensee that his driver’s license would be suspended for one year if he refused to take the test. Licensee agreed to take the test.

After being instructed how to perform the breath test, Licensee completed one adequate breath sample which registered as .21. On his second attempt, Licensee did not supply an adequate amount of breath to register a result on the breathalyzer. Licensee made five attempts to complete a second breathalyzer test and failed. Police reported to DOT that Licensee’s failure to provide a sufficient breath sample constituted a refusal. DOT suspended Licensee’s driver’s license for one year pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (implied consent law).

Licensee appealed to the trial court, asserting that he made a good faith effort to complete the test. Licensee offered no explanation or defense for his failure to complete the breathalyzer test. Trial court reversed the suspension holding that Licensee made a “good faith” effort and therefore DOT did not meet its burden of proving that Licensee had refused to submit to the breathalyzer test.

On appeal to this court,¹ DOT raises the following issue: whether Licensee’s failure to provide a sufficient breath sample to obtain a valid breathalyzer reading constitutes a refusal.

In cases involving the suspension of a driver’s license for refusal to submit to chemical testing, DOT must prove: 1) that the licensee was placed under arrest for driving under the influence; 2) that he was requested to submit to chemical testing; 3) that he was informed that a refusal to submit to such testing would result in a suspension of his operating privileges; and 4) that the licensee refused to submit to the test. Department of Transportation, Bureau of Driver Licensing v. Pestock, 136 Pa. Commonwealth Ct. 694, 136 Pa.Cmwlth. 694, 584 A.2d 1075 (1990). Whether conduct as found by the trial court constitutes a refusal is a question of law. Fitzgerald v. Commonwealth of Pennsylvania, 137 Pa. Commonwealth Ct. 359, 586 A.2d 483 (1991).

In the case before us, there is no dispute that DOT met the first three criteria set forth above. The pivotal issue in this case is whether failure to provide an adequate breath sample constitutes a per se refusal, and whether a “good faith” effort satisfies the mandate of section 1547.

Section 1547 states in part as follows:

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

(b) Suspension for refusal-

(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) 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 for a period of 12 months. (2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing. (Emphasis added.)

The language of section 1547 relevant to the question before this court is whether the licensee refuses to submit to chemical testing when he fails to complete the breathalyzer test, Reading this language in isolation, it could be interpreted so that all that is required to submit to the test is to manifest an intention to take the test and to make an attempt to take the test. However, this court has long required more than mere verbal assent to take the test and has required that the licensee actually take and complete the test.

In Department of Transportation, Bureau of Traffic Safety v. Medalis, 24 Pa.Commonwealth Ct. 12, 354 A.2d 43 (1976), the licensee orally assented to take a breathalyzer test but then refused to supply the necessary breath sample for the test to be conducted. This court held that the failure to provide a sufficient breath sample was tantamount to a refusal because the licensee did not actually take the test, in spite of his oral assent to the test.

Thereafter, this court expanded the interpretation of section 1547 to require that the licensee not only submit to or take the test but also that he complete the test. In Department of Transportation, Bureau of Traffic Safety v. Jones, 38 Pa.Commonwealth Ct. 400, 395 A.2d 592 (1978), the licensee submitted to the test by attempting to blow into the breathalyzer machine. The licensee supplied “healthy blasts” but was unable to supply a sufficient breath sample so that the breathalyzer test could be completed. The licensee testified that she attempted to blow into the machine in good faith. The trial court accepted that testimony and held that the licensee did not refuse to take the test simply because she was unable to complete the test. We reversed, holding that the licensee’s testimony that she made a good faith effort to take the test did not excuse her failure to complete the test.

In Department of Transportation v. Berta, 120 Pa.Commonwealth Ct. 558, 549 A.2d 262 (1988), this court specifically repudiated the concept of a “good faith” excuse for failing to complete the breathalyzer test. In Berta, a licensee attempted to perform the breathalyzer test by blowing air into the machine but she did not blow a sufficient ¿mount to cause a proper reading. DOT treated the failure to obtain a reading as a refusal. The licensee appealed to the trial court which concluded, based upon the licensee’s demeanor, candor and frankness that the licensee had blown into the breathalyzer as hard as she could and thus, had not refused to take the test. This court held that, as a matter of law, a good faith attempt to supply sufficient breath to complete a breathalyzer test is insufficient to excuse a licensee’s failure to complete the test.

The bedrock principal in Berta and Jones is that failure to complete a breathalyzer test constitutes a refusal. A trial court’s finding that a licensee made a good faith attempt to complete the breathalyzer test is irrelevant to the question of whether the licensee refused the test. Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal.

Applying the law to the facts of this case, it is clear that DOT met its burden. It must be noted that the licensee was fully able and did in fact complete the first breathalyzer test without any difficulty. The second effort was not completed. It must also be noted that the only argument put forth by the licensee in the instant appeal as an excuse is that he made a good faith effort. This court has reaffirmed as recently as Berta that it will not recognize a “good faith” effort as an excuse for noncompliance with 1547. Because the failure to supply a sufficient breath sample is a per se refusal, we reverse and reinstate the suspension.

ORDER

AND NOW, June 18, 1991, the order of the Court of Common Pleas of Delaware County in the above-captioned case is reversed and the license suspension is reinstated.

1 . Our scope of review is limited to a determination of whether the trial court’s findings of fact are supported by competent evidence, errors of law have been committed and whether the trial court's decision demonstrates a manifest abuse of discretion. Books v. Department of Transportation, Bureau of Driver Licensing, 109 Pa.Commonwealth Ct. 25, 530 A.2d 972 (1987).