Figueroa v. Commonwealth, No. 109 C.D. 2009 (Pa. Commw. Ct. 8/19/2009)

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: Simpson
• Decision Date: 19 August 2009
• Docket Number: No. 109 C.D. 2009.,109 C.D. 2009.
• Citation: Figueroa v. Commonwealth, No. 109 C.D. 2009 (Pa. Commw. Ct. 8/19/2009), No. 109 C.D. 2009. (Pa. Commw. Ct. Aug 19, 2009)
• Parties: Damien A. Figueroa v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

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Damien A. Figueroa v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

No. 109 C.D. 2009.

Commonwealth Court of Pennsylvania.

Submitted: July 24, 2009.

Filed: August 19, 2009

Before: McGINLEY, Judge; SIMPSON, Judge; McCLOSKEY, Senior Judge.

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

The Department of Transportation, Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common Pleas of Philadelphia County (trial court) that sustained the statutory appeal of Damien A. Figueroa (Licensee) from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code (refusal to submit to chemical testing).¹ The trial court sustained the appeal on the grounds that Licensee informed the police officer administering the chemical breath test of his physical inability to complete the test as a result of his allergies, and the officer did not provide Licensee an opportunity to submit to an alternative test. PennDOT argues the trial court erred in determining Licensee was physically incapable of completing the breathalyzer in light of the fact that Licensee did not present competent medical evidence to support this claim. Because we agree with PennDOT's assertion, we reverse and reinstate PennDOT's suspension.

In July 2008, PennDOT notified Licensee of a one-year suspension of his operating privilege as a result of his reported refusal to submit to chemical testing. Licensee filed a statutory appeal with the trial court. A hearing ensued at which PennDOT presented documentary evidence as well as the testimony of Philadelphia Police Officer Thomas O'Neill; Licensee testified on his behalf. Based on the evidence presented, the trial court made the following findings.

In June 2008, a Philadelphia Police Officer arrested Licensee on suspicion he drove his vehicle under the influence of alcohol (DUI). The officer transported Licensee to the police administration building for chemical testing.

Upon arrival, Officer O'Neill encountered Licensee and handed him a copy of the chemical test warnings for his review. Officer O'Neill stated he read Licensee the warnings and asked Licensee if he would submit to testing. Licensee agreed to submit to testing. At that time, Officer O'Neill turned Licensee over to Officer Joseph Johnson for a breathalyzer test.²

Prior to administration of the breathalyzer, Licensee experienced an allergic reaction to dust in the police administration building and advised Officer Johnson of the seriousness of his allergic reaction, for which he regularly takes prescription medication. Licensee explained a symptom of his allergies is difficulty breathing. Although Licensee advised Officer Johnson of his condition, Officer Johnson did not inquire whether, based on this condition, Licensee would be able to perform a breathalyzer test. Also, Officer Johnson did not offer Licensee an alternative test in the event his medical condition prevented him from supplying sufficient breath samples in order to complete the test.

Officer O'Neill testified regarding his observations while in the testing room. He did not recall any conversations between himself and Licensee during administration of the test. Officer O'Neill stated he observed Licensee give the first breath sample. According to Officer O'Neill, Licensee puffed up his cheeks and gave a short breath. Officer O'Neill considered this conduct "belligerent." Reproduced Record (R.R.) at 14a, Notes of Testimony, 12/11/08, at 11. Despite Officer O'Neill's characterization of Licensee's behavior, Licensee provided a valid sample on his first attempt. The trial court stated this valid first sample contradicted Officer O'Neill's repeated testimony that he believed Licensee's first sample did not register a valid reading. The trial court stated this valid first sample also contradicted Officer O'Neill's initial belief that Licensee deliberately attempted to "fool" the test operator into believing he was giving a sufficient breath sample by puffing his cheeks and giving a short breath. R.R. at 40a.

After Licensee provided the first sample, Officer O'Neill observed a discussion between Officer Johnson and Licensee during which Licensee requested permission to stand up in order to provide breath samples. Despite several attempts, Licensee was unable to provide a valid second sample. At that time, Officer Johnson deemed Licensee's conduct a refusal, despite Licensee's subsequent request to submit to a chemical blood test.

Ultimately, the trial court determined, because Licensee advised Officer Johnson of his medical condition before submitting to the breath test, and because Licensee was not offered an alternative test, PennDOT did not prove Licensee's inability to provide a second breath sample constituted a refusal. Thus, the trial court sustained Licensee's appeal. PennDOT now appeals to this Court.

At the outset, we note, questions of credibility and conflicts in the evidence are within the trial court's exclusive province as fact-finder. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). As fact-finder, the trial court may accept or reject the testimony of any witness, in whole or in part. Id. If the trial court's findings are supported by substantial, competent evidence, they are binding. Id.

To sustain a license suspension under the Implied Consent Law, PennDOT must establish a licensee: was arrested for DUI; was asked to submit to a chemical test; refused to do so; and, was specifically warned a refusal would result in the suspension of his driver's license. Quigley v. Dep't of Transp., Bureau of Driver Licensing, 965 A.2d 349 (Pa. Cmwlth. 2009). Once PennDOT meets its burden, the licensee must prove his refusal was not knowing or conscious or he was physically unable to take the test. Id.

On appeal,³ PennDOT argues Officer O'Neill's testimony, together with its documentary evidence⁴ satisfied its initial burden of proof. It asserts once it satisfied its burden, the burden shifted to Licensee to prove he was physically incapable of completing the breath test. PennDOT maintains Licensee did not offer any medical evidence to support a finding he was incapable of completing a breathalyzer because of his allergies. Thus, it contends, to the extent the trial court found Licensee satisfied his burden, the trial court's finding is not supported by competent evidence. We agree.

This Court holds that any response from a licensee to a request for a chemical test that is short of an unqualified, unequivocal assent to the requested test constitutes a refusal, subjecting the licensee to the suspension mandated by 75 Pa. C.S. §1547(b)(1). Quick v. Dep't of Transp., Bureau of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007); Hudson v. Dep't of Transp., Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003). A licensee's refusal need not be expressed in words; rather, a licensee's conduct may constitute a refusal to submit to testing. Id. The issue of whether a licensee, by his conduct, refused to submit to chemical testing is one of law, based on the facts found by the trial court, and is subject to plenary review by this Court. Quick.

A licensee's failure to provide two consecutive sufficient breath samples as required by 67 Pa. Code § 77.24(b) (relating to breath test procedures), absent a proven medical reason that precludes the licensee from so doing, constitutes a refusal of the breath test as a matter of law. Quick; Sweeney v. Dep't of Transp., Bureau of Driver Licensing, 804 A.2d 685 (Pa. Cmwlth. 2002). In Sweeney, this Court held "failure to complete a breathalyzer test, whether or not a good faith effort was made to do so, constitutes a refusal per se to take the test." Id. at 687 (emphasis in original). In Department of Transportation v. Berta, 549 A.2d 262, 264 (Pa. Cmwlth. 1988), we held a licensee's failure to blow sufficient air to successfully complete the breath test constituted a refusal absent medical evidence to establish a physical inability to provide sufficient breath.

Where a licensee suffers from a medical condition that affects his ability to perform a test and the condition is not obvious, a finding that a licensee was unable to take the test for medical reasons must be supported by competent medical evidence. Wright v. Dep't of Transp., Bureau of Driver Licensing, 788 A.2d 443 (Pa. Cmwlth. 2001); Dep't of Transp., Bureau of Traffic Safety v. Struzzeri, 504 A.2d 961 (Pa. Cmwlth. 1986). Competent medical evidence unequivocally provides that the licensee's medical condition or conditions actually prevented him from performing the breathalyzer test. Whistler v. Dep't of Transp., Bureau of Driver Licensing, 882 A.2d 537 (Pa. Cmwlth. 2005); Dep't of Transp., Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660 (Pa. Cmwlth. 1993). Further, competent medical evidence establishes the requisite nexus between the licensee's medical condition and the licensee's inability to complete the required testing. See Marinaro v. Dep't of Transp., Bureau of Driver Licensing, 703 A.2d 1066 (Pa. Cmwlth. 1997).

Our decision in Department of Transportation v. Gross, 605 A.2d 433 (Pa. Cmwlth. 1991) controls. There, after her arrest for DUI, the licensee was transported to police headquarters and asked to submit to a breathalyzer test, to which she consented. However, the licensee was unable to provide sufficient breath samples to complete the test. The licensee advised the administering officer she had allergies and was willing to submit to a chemical blood test in lieu of the breathalyzer test. The officer denied the licensee's request for a blood test and recorded a refusal. Reversing a court of common pleas decision that sustained the licensee's appeal, this Court explained:

The trial court concluded [the licensee] met her burden of proving by competent evidence that she was...