Conrad v. Commonwealth, No. 603 C.D. 2019

• Citation: 226 A.3d 1045
• Decision Date: 07 February 2020
• Docket Number: No. 603 C.D. 2019
• Parties: Lucas CONRAD, Appellant v. Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING
• Court: Commonwealth Court of Pennsylvania

226 A.3d 1045

Lucas CONRAD, Appellant

v.Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

No. 603 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs November 22, 2019

Decided February 7, 2020

Thomas J. Wagner, Coatesville, for Appellant.

Terrance M. Edwards, Senior Counsel, Harrisburg, for Appellee.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE CEISLER

Lucas Conrad (Licensee) appeals from the April 15, 2019 Order of the Court of Common Pleas of Chester County (Trial Court), which denied his statutory appeal from the one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (DOT). DOT imposed the one-year suspension pursuant to Section 1547(b)(1)(i) of the Vehicle Code, commonly known as the Implied Consent Law, due to Licensee’s refusal to submit to chemical testing following his arrest for driving under the influence of alcohol or a controlled substance (DUI).¹ We affirm the Trial Court’s Order.

Background

In the early morning hours of November 18, 2017, Officer Ryan Kushner of the Southern Chester County Regional Police Department was on patrol in New Garden Township, Pennsylvania, when he observed a black Ford Ranger being driven erratically. Notes of Testimony (N.T.), 2/21/19, at 4-5. Officer Kushner activated his patrol vehicle’s overhead lights and effectuated a traffic stop of the Ford Ranger, which was being operated by Licensee. Id. at 5. Officer Kushner "detected a strong odor of alcoholic beverage emanating from inside the vehicle" and observed that Licensee’s "eyes were glassy and bloodshot." Id. at 6. When asked whether he had been drinking that night, Licensee stated that "he had two Coors Lights." Id.

Officer Kushner asked Licensee to exit his vehicle to perform field sobriety testing. Id. The officer administered the horizontal-gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test to Licensee. Id. Licensee displayed signs of impairment on two of the tests. Id. Officer Kushner then asked Licensee to submit to a portable breath test, but he refused. Id. at 8.

Officer Kushner took Licensee "into custody for suspicion of DUI" and transported him to a police substation in West Grove Borough for a breath test. Id. Licensee consented to the breath test after Officer Kushner read to Licensee the implied consent warnings contained in DOT’s DL-26A Form.² Id. at 8-9.

At the police substation, Patrolman First Class (PFC) Joseph Cooper, a certified breath test operator, administered the breath test to Licensee. Id. at 8, 13. PFC Cooper utilized a DataMaster DMT breathalyzer device, which had been properly calibrated at that time. Id. at 14. After the requisite 20-minute observation period, PFC Cooper gave Licensee three opportunities to supply a valid breath sample, but Licensee did not provide enough breath to register a proper sample. Id. at 9-10, 16-17. Because Licensee did not provide two consecutive, sufficient breath samples, the officers deemed his failure to complete the breath test a refusal. Id. at 20.

On December 11, 2017, DOT mailed a notice to Licensee stating that his operating privilege would be suspended for one year, effective January 15, 2018, for his refusal to submit to chemical testing on November 18, 2017. Licensee timely appealed to the Trial Court, which held an evidentiary hearing on February 21, 2019.

At the hearing, DOT presented the testimony of Officer Kushner and PFC Cooper. Officer Kushner testified that he was present in the room when PFC Cooper administered the breath test to Licensee. According to Officer Kushner, Licensee "was given three separate opportunities to take the test, all of which were deemed incomplete because he didn’t provide enough breath to register a proper sample after three attempts." N.T., 2/21/19, at 9-10. Officer Kushner further testified that "[a]t that time[,] [Licensee] told us both that he has asthma

and that was the reason why he could not perform the test properly." Id. at 10.

PFC Cooper testified that before administering the breath test to Licensee, he "explained the test to [Licensee], that he had to blow properly twice into the instrument to perform the test." Id. at 17. He also instructed Licensee "to give a nice steady breath until ... I tell him to stop breathing, blowing." Id. Although Licensee blew into the device, he "failed to give a proper breath sample." Id.

PFC Cooper further testified that "during the test[,] [Licensee] did say that he had asthma

, but he wasn’t exhibiting any things that would relate to asthma." Id. at 19. PFC Cooper testified, "I didn’t view any labored breathing with him. He wasn’t having any labored breathing .... He wasn’t having any type of asthma attack." Id. PFC Cooper testified that Licensee did not provide two consecutive, sufficient breaths in order to complete the breath test. Id. at 20.

Licensee testified that he consented to the breath test after Officer Kushner read the warnings on the DL-26A Form. Id. at 27-28. Thereafter, "after the observation period[,] I took the [b]reathalyzer exam, and I had never done one before[,] although [PFC] Cooper kind of said that he explained it to me." Id. at 29. Licensee testified that during the test, he was "under stress" and informed PFC Cooper that he "had an asthma

condition." Id. at 30. Licensee believed that he was experiencing an asthma attack because "it felt like someone was stepping on my chest." Id. at 31. Licensee testified that he was aware that he "had to give two deep lung breaths in rapid succession" to complete the breath test; however, the officers did not tell him that if he failed to do so, it would be registered as a refusal. Id. Licensee acknowledged, however, that he was "not able to provide those breaths no matter if they told me or not." Id. at 32. On cross-examination, Licensee testified that he did not inform the officers that he was having an asthma

attack because he did not believe he had to. Id. at 33-34.

Licensee also presented the testimony of Andrew Brown, M.D., who is board-certified in internal medicine and pulmonary disease

. Id. at 37. Dr. Brown testified that he examined Licensee for the first time on November 9, 2018, almost one year after Licensee’s DUI arrest. Id. at 37, 42. According to Dr. Brown, Licensee informed him that "he had a history of asthma since 2007." Id. at 38. Dr. Brown testified that he "performed a thorough examination and ... pulmonary function studies" on Licensee. Id. at 37. According to Dr. Brown, "during that office visit[,] [Licensee] had a normal exam and he also had normal breathing studies," but the tests revealed that Licensee had "hyper[-]responsive airways, which is the hallmark of asthma." Id. at 37-38.

Dr. Brown testified, to a reasonable degree of medical certainty, that Licensee’s testimony regarding what transpired during the breath test on November 18, 2017 was "consistent with an asthmatic condition." Id. at 38. Dr. Brown explained that asthma

"patients can just present with a feeling of chest heaviness. They don’t have to be wheezing. They don’t have to be coughing or have any other manifestations of asthma to be in an asthmatic attack." Id. at 40.

On cross-examination, Dr. Brown testified that he based his opinion testimony on the history that Licensee verbally related to him. Id. at 42-43. Dr. Brown did not review any prior medical records because Licensee "didn’t provide any medical records" to him. Id. at 43. Dr. Brown testified that at the time he examined Licensee, "I believe he told me that he was arrested for a DUI and that he had asthma

. I don’t recall if he told me he was having an asthma attack during the [breath test]." Id. at 44.

Dr. Brown testified that he had not heard of the DataMaster DMT device before the hearing. Id. Dr. Brown also testified that he was not familiar with the exact force of expiratory volume required to satisfy a breathalyzer test, the length of breath needed to satisfy the test, how hard a person needs to blow into the device to complete the test, or the lung capacity needed to perform the test. Id. at 44-45. When asked if he was certain that Licensee had an asthma

attack on November 18, 2017, Dr. Brown replied, "I wasn’t there, so I don’t know." Dr. Brown further testified:

I’m not forming an opinion as to whether or not [Licensee] was having an asthma

attack. My medical opinion is that he has a history of asthma. Asthma is diagnosed clinically. And the [pulmonary] test [I performed] supports the fact that he has hyper[-]responsive airways which is consistent with asthma. I’m not forming an opinion as to what transpired when [Licensee] was arrested and was asked to blow into the [b]reathalyzer.

Id. at 46 (emphasis added).

Following the hearing, the Trial Court denied Licensee’s statutory appeal and reinstated the one-year suspension of his operating privilege. In its subsequent Pa. R.A.P. 1925(a) Opinion, the Trial Court made the following factual findings:

[Licensee] did not tell the police officers that he was suffering from an asthma

attack. He did tell them that he suffered from an asthma condition[,] which he differentiated from an asthma attack. The testimony, which we credit, was that [Licensee] was not exhibiting any signs of an asthma attack. [Licensee] testified that he has an inhaler, but there is no

evidence that at any time he asked to use the inhaler.

....

[Dr. Brown] did not opine that [Licensee] was suffering an asthma

attack at the time he was attempting to perform the breath tests. Although the doctor testified that he could not determine whether or not [Licensee] was having an asthma attack at the time of the incident because [Dr. Brown] was not present, he also testified that he heard [Licensee’s] testimony and could only testify that [Licensee’s] testimony was consistent with an asthmatic condition. ... The doctor was not asked and...