Kromelbein v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

637 A.2d 728, 161 Pa. Commw. 532, 1994 Pa. Commw. LEXIS 51
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 1, 1994
StatusPublished
Cited by2 cases

This text of 637 A.2d 728 (Kromelbein v. Commonwealth, Department of Transportation, Bureau of Driver Licensing) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kromelbein v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 637 A.2d 728, 161 Pa. Commw. 532, 1994 Pa. Commw. LEXIS 51 (Pa. Ct. App. 1994).

Opinion

COLINS, Judge.

Harold L. Kromelbein (Kromelbein) has petitioned for reargument with respect to the October 13, 1993 order of this Court, affirming the October 15, 1992 order of the Court of Common Pleas of Bradford County (Common Pleas) in the above-captioned matter, originally submitted to this Court on June 11, 1993. The Common Pleas order sustained the one-year suspension of Kromelbein’s operating privilege, imposed by the Department of Transportation, Bureau of Driver Licensing (DOT), pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa.C.S. § 1547, because Kromelbein refused to submit to a blood test. By order dated December 10, 1993, this Court withdrew its October 13, 1993 order and opinion and denied Kromel-

[729]*729bein’s application for reargument but granted him reconsideration.

In his petition for reargument, Kromelbein avers that this Court never examined the record which, he argues, does not support Common Pleas’ affirmance of DOT’s contention that the breath test he performed prior to being asked to submit to a blood test was a preliminary breath test (PBT) as provided for in Section 1547(k) of the Code, 75 Pa.C.S. § 1547(h).1 Kromelbein relies on Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987), as establishing that once a motorist performs one valid test, as he did, that motorist’s subsequent refusal to undergo a second test does not constitute a refusal within the meaning of Section 1547(b) of the Code.2 He further contends that this Court failed to address the issues presented in his initial appeal, specifically whether DOT had the burden of establishing that the breath test administered to him was, in fact, a PBT, and not a breath test pursuant to Section 1547(a) of the Code, 75 Pa.C.S. § 1547(a),3 and if so, whether DOT failed to meet this burden. Additionally, Kromelbein maintains that our October 13, 1993 opinion draws an inapposite analogy between the issues in his case and those found in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989), and in Appeal of Attleberger, 136 Pa.Commonwealth Ct. 329, 583 A.2d 24 (1990), appeal dismissed as improvidently granted, 531 Pa. 450, 613 A.2d 1203 (1992).

After having reviewed the record once again in reconsideration of Kromelbein’s petition, we disagree with the arguments advanced therein. First, evidence of record supports the determination made by Common Pleas, as fact finder, that

despite a certain degree of confusion in terminology, the testimony [elicited at the August 21, 1992 license suspension hearing] of Officer Hutchinson [the arresting officer] about a ‘breathalyzer’ test can only be understood to refer to a pre-arrest field sobriety test. Although the test was referred to as a ‘breathalyzer’ test by Officer Hutchinson, it is clear that the test given to Appellant differed significantly from the ‘breathalyzer’ referred to in McFarren, supra. In reaching this conclusion, the court relies upon the only testimony relating to the purpose of the test, the testimony of Officer Hutchinson during cross-examination that the alcohol detector mark ‘X’ test, referred to by Officer Hutchinson as a breathalyzer test, ‘is just used for added probable cause as your[sic] field sobriety test.’ N.T., p. 6, lines 5 and 6) (Emphasis added). Appellant’s argument that the Department of Transportation presented no evidence that the first breath test was a preliminary test is simply not supported by the record. As well, there is no evidence [730]*730in the record to support Defendant’s contention that the subsequent request for a second test was designed to enhance the evidence and guarantee a conviction. Instead, the test was, in the language of Officer Hutchinson, ‘for added probable cause’ or, in the language of Section 1547(k), ‘to assist the officer in determining whether ... the person should be placed under arrest.’ Therefore, there is no basis for concluding that the request was unreasonable under the standard established by the Supreme Court in McFar-ren, supra.

It is well established that “[c]onflicts in the evidence and questions of credibility are for the trial court to resolve,” Sallade v. Commonwealth, 140 Pa.Commonwealth Ct. 121, 123, 591 A.2d 1176, 1177 (1991). In the present ease, therefore, this Court will not disturb Common Pleas’ credibility determination accepting Officer Hutchinson’s aver-ments that the breath test administered Kro-melbein was a PBT intended to determine probable cause and not one of the chemical tests to which a licensee is deemed to have consented under Section 1547(a) of the Code. Moreover, the record establishes that the breath test was administered prior to Kro-melbein’s arrest, when he was stopped by Officer Hutchinson for driving erratically, which fact reinforces the Officer’s testimony that the test was given to determine probable cause and was, in effect, one of several field sobriety tests that Kromelbein failed to perform satisfactorily. It should also be noted that this Court has upheld the administration of more than one chemical test even where a licensee, unlike the present case, may have successfully passed a second set of field sobriety tests. Specifically, in Department of Transportation, Bureau of Driver Licensing v. Harbaugh, 141 Pa.Commonwealth Ct. 288, 595 A.2d 715 (1991), this Court noted the following:

Although Harbaugh believes that it was unreasonable for Jefferson to request that he submit to a second chemical test because he had passed the second set of field sobriety tests, field sobriety tests do not constitute chemical testing for purposes of Section 1547(a) of the Vehicle Code, 75 Pa.C.S. § 1547(a)_ The sole purpose of the field sobriety test is' to assist the officer in determining whether a driver should be placed under arrest, not whether the driver is actually intoxicated.... This court has also held that a police officer who has reasonable grounds to order a chemical test may do so, despite the fact that the driver has passed a field sobriety test prior to the chemical test.

Id. at 294, 595 A.2d at 718 (citations omitted).

Further, as noted by Common Pleas, the record is devoid of any evidence submitted by Kromelbein to establish either that he was overtly confused about preliminary breath testing or that the blood test requested by Officer Hutchinson was intended to “enhance the evidence and guarantee a conviction,” in the McFarren sense. In this respect, we find Kromelbein’s reliance upon McFarren misplaced, as was that of the licensee in Commonwealth v. Weaver, 384 Pa.Superior Ct. 231, 558 A.2d 97 (1989), petition for allowance of appeal denied, 524 Pa. 627, 574 A.2d 69 (1990), wherein our Superior Court stated:

However, we find that McFarren, supra is inapposite presently.

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637 A.2d 728, 161 Pa. Commw. 532, 1994 Pa. Commw. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kromelbein-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-1994.