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

781 A.2d 276, 2001 Pa. Commw. LEXIS 545
CourtCommonwealth Court of Pennsylvania
DecidedAugust 1, 2001
StatusPublished
Cited by13 cases

This text of 781 A.2d 276 (Postgate 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
Postgate v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 781 A.2d 276, 2001 Pa. Commw. LEXIS 545 (Pa. Ct. App. 2001).

Opinion

DOYLE, President Judge.

Ronald D. Postgate (Licensee) appeals an order of the Court of Common Pleas of Indiana County, which denied his statutory appeal from a one-year suspension of his driver’s license imposed by the Depart[278]*278ment of Transportation, Bureau of Driver Licensing (DOT). The suspension was imposed for refusing to submit to chemical testing in accordance with Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1).1

On September 26, 1999, James Bateman, a Pennsylvania State Trooper, stopped Licensee for driving,, a motorcycle without wearing a helmet. Trooper Bateman noticed an odor of alcohol emitted by Licensee, and he observed that Licensee’s eyes were red, bloodshot, and glassy. Licensee admitted to Trooper Bateman that he had been drinking alcohol. The Trooper then asked Licensee to submit to field sobriety tests, and Licensee agreed. The Trooper administered the tests (reciting the alphabet, the one leg stand, and the walk-and-turn test), which tests Licensee was unable to perform. Trooper Bateman then placed Licensee under arrest for driving under the influence of alcohol and transported him to the Indiana State Police Barracks for chemical testing.

At the barracks, Licensee was advised of the implied consent law and asked to submit to a chemical test of his breath. Licensee initially agreed to the test, but, the Trooper who conducted the test, Trooper Rummel, a certified operator of the Intoxi-lyzer 5000 breath testing machine, noted that Licensee was pretending to blow into the mouthpiece of the device, inflating his cheeks to make it appear that he was blowing. Licensee failed to produce a sufficient breath sample for testing and, as a result, Trooper Rummel determined that Licensee refused the test.

Subsequently, DOT notified Licensee that his driver’s license was suspended for one year and Licensee appealed the suspension to the Common Pleas Court.

At the hearing in Common Pleas, DOT presented the testimony of Troopers Bate-man and Rummel, who testified to the facts recited above. Further, with regard to facts surrounding the breath test, Trooper Rummel testified that he explained the breath testing procedure to Licensee, but Licensee behaved as follows:

[Licensee] started to give his first sample and he was not doing it properly. He was blowing into the machine for a second or two and stopping. He was pretending that he was blowing into the machine with putting his lips around the mouthpiece and just inflating his cheeks to make it look like he was blowing.
[[Image here]]
I told him several times that he wasn’t blowing, that I couldn’t hear it. I also told him that when he’s blowing properly, that the machine emits a tone, a high pitched tone. If I cannot hear the tone, then the machine was not receiving any air from his lungs.

(Notes of Testimony (N.T.) at 29.) Trooper Rummel specifically testified that he never heard the machine emit the tone that indicates air is being blown into the machine.2 Trooper Rummel also testified that the breath-testing machine was properly functioning and certified for accuracy.

[279]*279Licensee testified that he did not refuse the test, complied with the instructions of Trooper Rummel, and that he blew into the machine.

The Common Pleas Court accepted the testimony of Trooper Bateman and Trooper Rummel as credible, and rejected Licensee’s testimony. Based on the testimony of the Troopers, the Court concluded that Licensee “did not exert total conscious effort and thereby failed to supply a sufficient breath sample and the Court further finds the testimony of Trooper Curtis Rummel to be sufficient to prove calibration of the breathalyzer machine.” (Common Pleas Court’s opinion at 1.) Accordingly, the court dismissed Licensee’s appeal and, this appeal followed.

On appeal, Licensee contends the Common Pleas Court erred in dismissing his appeal, because the Troopers did not provide credible testimony regarding Licensee’s refusal and did not provide information regarding the accuracy and calibration of the Intoxilyzer 5000 breath testing machine.

To suspend a licensee’s driver’s license under Section 1547(b) of the Vehicle Code, DOT must prove that (1) the licensee was arrested for driving while intoxicated and that the arresting officer had reasonable grounds to believe that the licensee was driving while intoxicated; (2) that the licensee was requested to submit to a chemical test; (3) that the licensee refused the test; and (4), where the issue is raised, that the licensee was warned that refusing the test would result in a suspension. Department of Transportation, Bureau of Driver Licensing v. Pestock, 136 Pa.Cmwlth. 694, 584 A.2d 1075 (1990), petition for allowance of appeal denied, 528 Pa. 619, 596 A.2d 801 (1991).

Where a licensee fails make a total conscious effort to take a breath test, and thereby fails to provide a sufficient breath sample, such conduct is tantamount to refusing the test. Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa.Cmwlth.1996). Failure to provide a sufficient breath sample constitutes a refusal even where the licensee made a good faith effort to comply with the test. Id.

In Pappas, we identified two methods that DOT may utilize to establish that a licensee refused chemical testing by failing to provide sufficient breath samples. First, we stated that:

A refusal is supported by substantial evidence where the Breathalyzer administrator testifies that the licensee did not provide sufficient breath.... If DOT establishes refusal by utilizing the testimony of the administering officer, it need not prove that the machine was in proper working condition at the time of the test.... That is, once DOT establishes refusal, the operability or suitability of the Breathalyzer is not at issue.

Pappas, 669 A.2d at 508 (citations omitted) (emphasis added). Second, DOT may also rely on the breath machine printout:

DOT may establish refusal under these circumstances by presenting a printout form from a properly calibrated Breathalyzer indicating a deficient sample. In this situation, proper calibration may be proven by documentary or testimonial evidence.

Id. at 508 (citation omitted).

In the instant case, the Common Pleas Court found the testimony of Trooper Bateman and Trooper Rummel credible and, based on that testimony, concluded that Licensee did not exert a total conscious effort to complete the breath test and failed to provide a sufficient sample for chemical testing. While Licensee ar[280]*280gues that the court erred in accepting the Troopers’ testimony,3 the- law is “settled beyond question that determinations as to the credibility of witnesses and the weight assigned to their testimony is solely within the province of the fact finder.... ” Millili v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 111

Free access — add to your briefcase to read the full text and ask questions with AI

Related

S.A. Cornish v. Bureau of Driver Licensing
Commonwealth Court of Pennsylvania, 2024
D. Fullam v. Bureau of Driver Licensing
Commonwealth Court of Pennsylvania, 2021
R.L. Stasa v. Bureau of Driver Licensing
Commonwealth Court of Pennsylvania, 2020
M.L. Doherty v. Radnor Twp.
Commonwealth Court of Pennsylvania, 2017
Greenfield Township Municipal Authority v. D.R. Burket Trust
959 A.2d 522 (Commonwealth Court of Pennsylvania, 2008)
Reinhart v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
954 A.2d 761 (Commonwealth Court of Pennsylvania, 2008)
Busch v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
900 A.2d 992 (Commonwealth Court of Pennsylvania, 2006)
Mondini v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
875 A.2d 1192 (Commonwealth Court of Pennsylvania, 2005)
Klinger v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
856 A.2d 280 (Commonwealth Court of Pennsylvania, 2004)
Zwibel v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
832 A.2d 599 (Commonwealth Court of Pennsylvania, 2003)
King v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
828 A.2d 1 (Commonwealth Court of Pennsylvania, 2003)
Spera v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
817 A.2d 1236 (Commonwealth Court of Pennsylvania, 2003)
McGee v. Commonwealth, Department of Transportation, Bureau of Driver Licensing
803 A.2d 255 (Commonwealth Court of Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
781 A.2d 276, 2001 Pa. Commw. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/postgate-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-2001.