Pennsylvania DUI Attorney
Refusal
Section 1547(b) of the Vehicle Code states:
(1) If any person placed under arrest
for a violation of section 3802 [ (relating to DUI) ] is requested to
submit to chemical testing and refuses to do so, the testing shall not
be conducted but upon notice by the police officer, the department
shall suspend the operating privileges of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
(ii) For a period of 18 months if any of the following apply:
(A) The person's operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former section 3731 [ (related to serious traffic offenses) ];
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of offenses set forth in this clause.
(2) It shall be the duty of the police officer to inform the person that:
(i) the person's operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to
chemical testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the penalties provided in
section 3804(c) (relating to penalties).
To sustain a license suspension under Section 1547 of the Vehicle Code, 75 Pa.C.S. ยง 1547, the Department bears the burden of proving that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 197, 723 A.2d 655, 657-658 (1999).
To satisfy the "specific warning" requirement, "a precisely enunciated warning that a driver's license will be revoked" must be given. Everhart v. Commonwealth of Pennsylvania, 54 Pa.Cmwlth. 22, 420 A.2d 13, 15 (Pa.Cmwlth.1980) (emphasis added).
If the Department satisfies its initial burden that the driver (1) was placed under arrest for driving while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his or her driver's license, the burden shifts to the licensee to show that his refusal was not knowing or conscious or that he was physically unable to take the test. Yoon v. Department of Transportation, Bureau of Driver Licensing, 718 A.2d 386, 388 (Pa.Cmwlth.1998). However, if a licensee does not receive a specific warning, it is irrelevant whether his refusal to submit to chemical testing was knowing and conscious. Id. at 388, n. 5.
"A motorist's subjective beliefs are an insufficient justification for refusing to comply with the mandates of the Implied Consent Law." Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 249, 684 A.2d 539, 543 (1996) (driver did not believe the officer's warning).
In Peppelman v. Commonwealth, 403 A.2d 1041 (Pa.Cmwlth.1979) the court held that using the word "could" instead of "will" in the implied consent warning did not comply with the statute and, therefore, set aside the license suspension.
In Everhart v. Commonwealth, 420 A.2d 13, 15 (Pa.Cmwlth.1980), the court held that a DL-26 warning that advised a motorist that his license "could be suspended" for refusing a test was not sufficient to satisfy Section 1547(b). The words "will be suspended," which are those used in Section 1547(b), must be recited by the arresting officer.
In Yoon v. Department of Transportation, Bureau of Driver Licensing, 718 A.2d 386 (Pa.Cmwlth.1998), the court held that the warning requirement in Section 1547(b) was not satisfied by having the motorist read the DL-26 warning silently to himself. The arresting officer must read the DL-26 warning aloud to the motorist.
"In proving whether a licensee refused to submit to chemical testing, [Penn]DOT's burden includes the burden of showing that the licensee was offered a meaningful opportunity to comply with section 1547 [of the Vehicle Code]." Petrocsko v. Dept. of Transp., Bureau of Driver Licensing, 745 A.2d 714, 716 (Pa.Cmwlth.2000).
Licensee blew into the machine twice, causing the LED screen to show two different readings. The first sample registered 0.153, and the second sample registered 0.187. Because the second sample was 0.034 higher than the first sample, the breath testing machine stopped and printed out an evidence ticket indicating there was a "sample deviation." If a difference of 0.020 or more exists between two breaths samples, the test results are disregarded and the breathalyzer machine is removed from service. The officer believed that Licensee deliberately did not breathe into the machine properly on his second breath, and he recorded a refusal. The officer did not request Licensee to submit to a subsequent chemical test. The trial court here specifically found Licensee provided two adequate breath samples. In so doing, the trial court relied on the DataMaster evidence ticket that indicated "sample deviation," not "deficient sample." The trial court rejected the officer's testimony that Licensee did not provide two sufficient breath samples. Reinhart v. Com., Dept. of Transp., Bureau of Driver Licensing, 954 A.2d 761 (Pa.Cmwlth., 2008).
Failure to provide a sufficient breath sample constitutes a per se refusal. Spera v. Dep't of Transp., Bureau of Driver Licensing, 817 A.2d 1236 (Pa.Cmwlth.2003).
A refusal may be established where the breathalyzer administrator credibly testifies the licensee did not provide sufficient breath. Pappas v. Dep't of Transp., Bureau of Driver Licensing, 669 A.2d 504 (Pa.Cmwlth.1996). Alternatively, PennDOT may establish a refusal by presenting a printout from a properly calibrated breathalyzer indicating a "deficient sample." Id.
Deliberate failure to provide sufficient breath samples is considered a refusal. See Dep't of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997); Lucas v. Dep't of Transp., Bureau of Motor Vehicles, 854 A.2d 639 (Pa.Cmwlth.2004); Postgate v. Dep't of Transp., Bureau of Driver Licensing, 781 A.2d 276 (Pa.Cmwlth.2001); Dep't of Transp., Bureau of Driver Licensing v. Pestock, 136 Pa.Cmwlth. 694, 584 A.2d 1075 (1990).
A breath sample is invalid if the evidence ticket accompanying it indicates a "deficient sample." However, in Dep't of Transp., Bureau of Driver Licensing v. Lohner, 155 Pa.Cmwlth. 185, 624 A.2d 792 (1993), although the licensee provided two breath samples, the court found that the licensee would not properly blow for the second test. Licensee was held to have refused the testing.
When a sample deviation occurs, and, as a result, the breath test is rendered a nullity, a police officer is justified in requesting a licensee to submit to another chemical test. See Lamond v. Dep't of Transp., Bureau of Driver Licensing, 716 A.2d 1290 (Pa.Cmwlth.1998).
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).
A refusal is supported by substantial evidence where the breathalyzer administrator testifies that the licensee did not provide sufficient breath. Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa.Cmwlth.1996). If DOT establishes refusal by utilizing the testimony of the administrating 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. Id. at 508; See also Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236 (Pa.Cmwlth.2003).
In Burkhart v. Department of Transportation, Bureau of Driver Licensing, 934 A.2d 161 (Pa.Cmwlth.2007), the licensee was attempting to give a breath sample for an Intoximeter RBT IV breathalyzer. When he blew into the machine for a confirmation reading, the device displayed a low battery signal. The arresting officer then replaced the battery and explained to the licensee that changing the battery would void the initial reading and that the licensee would be required to provide two more breath samples. After the officer determined that the machine was operating properly, the licensee blew a weak, slow breath into the machine that yielded a reading of .182. When the licensee blew into the machine to obtain a confirmation reading, he did not keep his lips sealed around the mouthpiece, allowing air to escape the sides of his mouth. The breathalyzer indicated that the breath sample was not sufficient. The officer waited a few seconds and requested the licensee to attempt another confirmation blow. The licensee again failed to give a sufficient test sample and the test was voided. The licensee's unsuccessful breath test constituted a refusal and his license was suspended.