Pennsylvania DUI Attorney
Breath Testing
Pursuant to 67 Pa.Code § 77.24(b)(2), a breathalyzer is to be removed from service only when (1) the difference between the results of two actual alcohol breath tests exceeds a specified parameter or (2) a simulator test yields unacceptable results. We stated, however, that DOT regulations do not require that a breathalyzer be removed from service after its battery has been replaced. We added that licensee failed to present evidence from a qualified witness to establish that replacing the battery of a breathalyzer alters the machine's calibrations or affects the ability to supply adequate breath samples. Burkhart v. Department of Transportation, Bureau of Driver Licensing, 934 A.2d 161, 164 (Pa.Cmwlth.2007).
Removing and replacing a mouthpiece does not mandate that the breathalyzer must be removed from service or indicate that the device was no longer in working order. 67 Pa.Code § 77.24(b)(2) does not list such action as an event requiring the breathalyzer to be removed from service. Licensee did not present evidence from a qualified witness to establish that detaching and replacing the mouthpiece alters the machine's calibrations or affects the ability to supply adequate breath samples. Riley v. Com., Dept. of Transp., Bureau of Driver Licensing, 946 A.2d 1115 (Pa.Cmwlth.,2008).
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. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685 (Pa.Cmwlth.2002).
Failure to supply a sufficient breath sample shifts the burden to the licensee to prove by competent medical evidence that he was physically unable to take the test. Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa.Cmwlth.1995).