Hinderliter v. Commonwealth

• Decision Date: 06 July 2020
• Docket Number: No. 1397 C.D. 2018,1397 C.D. 2018
• Parties: Edward W. HINDERLITER, Appellant v. COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
• Court: Pennsylvania Commonwealth Court

235 A.3d 465

Edward W. HINDERLITER, Appellant

v.COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

No. 1397 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued June 12, 2020

Decided July 6, 2020

Colin R. Hueston, Philadelphia, for Appellant.

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

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE COVEY

Edward W. Hinderliter (Licensee) appeals from the Montgomery County Common Pleas Court's (trial court) September 20, 2018 order denying Licensee's license suspension appeal. Licensee presents two issues for this Court's review: (1) whether Licensee's conduct constituted a refusal; and (2) whether the breath-test procedures were unreliable because the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) failed to establish that the proper procedures were followed. After review, we affirm.

On April 10, 2017, the Pottstown Borough Police Department dispatched Officer Ronald Taylor (Officer Taylor) to the scene of a motor vehicle accident. Upon arriving, Officer Taylor approached Licensee, a 70-year-old retired schoolteacher, and noted that he was uncoordinated and confused in his conversation, and that his eyes were red and bloodshot. Licensee stated that he had been drinking alcohol that day. Licensee also told Officer Taylor that he had been at the scene for 3 hours after the accident, when in reality only 45 minutes had elapsed since the time of the accident. Based upon his observations and Licensee's confusion, Officer Taylor placed Licensee under arrest for driving under the influence (DUI).

Officer Taylor transported Licensee to the police station for a breath test. Officer Taylor read Licensee the implied consent warnings (Form DL-26).¹ Licensee agreed to take the breath test. Officer Taylor told Licensee that he needed to blow steadily into the breathalyzer machine or the test would not work. Officer Taylor further explained that Licensee could not stop and start his breaths. However, during the first test, Licensee stopped his breath 10 times. The test was recorded as incomplete.

After Licensee's first attempt to provide a proper breath sample was unsuccessful, Officer Taylor placed a new mouthpiece on the machine, and again told Licensee he must provide a steady breath. Once again, Licensee started and stopped his breath. The result of that test was listed as a suck back error. Following these 2 tests, Officer Taylor recorded that no successful sample was provided, and marked the test as a refusal.

On June 2, 2017, DOT notified Licensee that his driver's license privileges would be suspended for a period of 18 months, effective July 7, 2017, pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(ii), due to his refusal to submit to chemical testing. Licensee appealed from the suspension to the trial court. A hearing was held on August 6, 2018,² and, on September 20, 2018, the trial court dismissed Licensee's appeal. Licensee appealed to this Court.³ The trial court filed its opinion on December 7, 2018.⁴

Licensee first argues that his conduct constituted a willingness to take any test and did not constitute a refusal. Specifically, Licensee contends that the evidence in this case amounts to much more than a mere good faith effort on the part of Licensee. Licensee claims that he was courteous and cooperative, he followed all instructions, and he did not remain silent, but rather, provided all information requested of him. Further, Licensee asserts that he agreed to take the breath tests. Thus, Licensee maintains that there is absolutely no record evidence that he knowingly and consciously refused the tests.

Initially, "[w]hether the conduct at issue constitutes a refusal is a question of law reviewable by this Court." Conrad v. Dep't of Transp., Bureau of Driver Licensing , 226 A.3d 1045, 1051 n.4 (Pa. Cmwlth. 2020) (quoting Lemon v. Dep't of Transp., Bureau of Driver Licensing , 763 A.2d 534, 538 (Pa. Cmwlth. 2000) ).

Our Court has held that a licensee's failure to provide two consecutive, sufficient breath samples, absent a proven medical reason that precludes him from doing so, constitutes a refusal as a matter of law.^{[5 ]} Quick v. Dep't of Transp., Bureau of Driver Licensing , 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007) ; see [Section 77.24(b)(1) of DOT's Regulations,] 67 Pa. Code § 77.24(b)(1) (stating that ‘[t]he procedures for alcohol breath testing shall include, at a minimum ... [t ]wo consecutive actual breath tests , without a required waiting period between the two tests’) (emphasis added). Moreover, the ‘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 .’ Sweeney v. Dep't of Transp., Bureau of Driver Licensing , 804 A.2d 685, 687 (Pa. Cmwlth. 2002) (en banc ) (emphasis in original); see Dep't of Transp., Bureau of Driver Licensing v. Kilrain , 140 Pa.Cmwlth. 484, 593 A.2d 932, 935 (1991) (en banc ) (‘Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal.’).

Conrad , 226 A.3d at 1052.

Here, Officer Taylor testified:⁶

[T]he [breathalyzer] instrument was – [Licensee's] information was put in the instrument. The test starts running. What it does is purge itself to make sure there's no residual alcohol in it. It scans all the information to get ready for a printout.

I took the hose, put in a mouth[ ]piece, a clean, fresh mouth[ ]piece for [Licensee]. I explained to him what we were going to be doing. We had to do two tests. I'm going to hold the hose. I need him just to take a deep breath and blow consistently into the hose without stopping, until I tell him to stop. He had moved over. I don't know if he was sitting there yet. He was sitting next to the instrument. I moved him over closer to the hose, as we generally do, so he could reach it without having to really bend over.

Started the breath tests. He was blowing into it. And it was -- he was stopping and starting. He would blow kind of hard and lose all his air and have to stop. Take another breath, do it again, do it again.

I told him, you have to make it one steady flow or it won't give a test. It will be an incomplete test.

He had -- at one point he was blowing around the mouthpiece as I was holding onto it. I could feel his breath coming around, hitting my hand.

The instrument also makes a tone, a steady tone when it's getting the proper amount of air into it. He wasn't getting a tone. And when he was, it would only last for a few seconds. It's actually probably about twelve seconds you'll have to go, to get a complete test.

So he was stopping, starting, stopping and starting. The test keeps running. And at the end of the test, if it doesn't have a complete sample, it will come up as an incomplete test[,] which this first one did.

At that point[,] I started the second test. It re-purged itself. I gave him a new mouthpiece and explained, again, before we started, that he has to go with one steady breath. You keep going or it will cancel out the test, if it happens[,] [i]t's deemed a refusal. So trying to get him to give me one steady, good test.

We started the second test, and he started blowing and then the same thing was happening. He was stopping, starting, stopping. And before it even got completed, he -- when he took in a breath, he still was holding onto the mouthpiece. And he sucked in, and gave it an automatic suck-in error, which came up on the printout slip.

So it was another incomplete test.

Notes of Testimony, August 6, 2018 (N.T.) at 16-17; see also N.T. Ex. C-5 (Subject Test Results). Officer Taylor expounded:

Q Officer Taylor, ... Did [Licensee] comply with your instructions given?

A He did, except for constantly giving a steady breath. As I said, he kept starting and stopping. And I told him numerous times, to make sure he understood, he had to keep going steadily or it wasn't going to complete the test.

Q And how many times did you allow [Licensee] to attempt the breath test?

A Well, we took two tests, but on the first one, probably about ten times, he had stopped and I had him restart.

If you have to restart it, it doesn't keep the alcohol at that level. So it's like starting the breathing part all over again. It starts at the bottom, works its way up.

So every time, it had to start over. And it only gives you a certain amount of time before the test times out. The instrument stops and qualifies it as a valid test or as an insufficient sample; which is what happened in his case[ ].

N.T. at 17-18.

Because "the ‘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 [,]’ " Licensee's failure to successfully complete the breath test constituted a per se refusal. Conrad , 226 A.3d at 1052 (quoting Sweeney , 804 A.2d at 687 ). Accordingly, the trial court properly determined that Licensee's failure to complete the test was a refusal.

Licensee next argues that the breath test procedures were unreliable because DOT failed to establish that proper procedures were followed. Specifically, Licensee contends: (1) Officer Taylor did not establish that he complied with the 20-minute observation requirement; (2) the DataMaster DMT which Officer Taylor used to administer the breath tests to Licensee was not suitably calibrated and operating properly; and (3) Officer Taylor did not read Form DL-26 to Licensee prior to his failure to complete either of the two breath tests.

Initially, Section 77.24 of DOT's Regulations provides, in relevant part:

(a) Observation.The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the

...