PennDOT Refusal Creditibility Issues

In a recent case Janna Perry appealed a Commonwealth of Pennsylvania, Department of Transportation (“PennDOT”) suspension of her driving privilege for a period of one year. Perry v. Commonwealth, 2012 Phila. Ct. Com. Pl. LEXIS 296, 1-7 (Pa. C.P. 2012). The suspension was sought as a result of police officers alleging, during the course of a DUI – 75 Pa C.S.A. § 3802(b) investigation, that when they asked Ms. Perry to submit to a breath test in accordance with their rights under 75 Pa.C.S.A § 1547, she refused to take a chemical test.

The evidence presented was that Ms. Perry had not refused to take a chemical test at the police station after she was arrested; rather, she had followed instructions, successfully taken one test and tried in good faith to take a second test. PennDOT alleged she did not cooperate fully as she was required to and her refusal to cooperate constituted a deliberate refusal to take the test in violation of § 1547(b)(1)(i) of the Pennsylvania Vehicle Code, 75 Pa.C.S.A. § 1547(b)(1)(i).

Trooper Buch testified as to the facts regarding the traffic stop, her taking a portable breath test which she failed, and her being detained and taken to the station for further testing. He alleged he read Ms. Perry the O’Connell warning pursuant to state law and explained to Ms. Perry the proper way to perform the test.

He demonstrated the plastic mouth piece and the proper way to blow into the breathalyzer and instructed Ms. Perry to take one long steady continuous breath into the machine. Ms. Perry provided the first breath sample — a long continuous breath which is reflected in the report derived from the DataMaster. This first test provided an accurate reading of Ms. Perry’s condition. She then took a second test. Trooper Buch testified she did not produce the long continuous breath required for the second test, taking only short breaths. Trooper Buch testified that after Ms. Perry did not perform the second test, she was given a two minute window to provide a proper sample of breath. Trooper Buch testified he again instructed and demonstrated to Ms. Perry how to properly execute the breath test but Ms. Perry indicated she would not take the test.

Conversely, Ms. Perry testified she took two breathalyzer tests to the best of her ability. She testified she took the first test, breathing into the machine as instructed, and was told the test was successful. She further testified she took a second test, but was not told that test was incorrectly taken and was not asked to take a third test. Ms. Perry’s testimony was that she never refused to take any of the tests she was asked to perform both before and after being taken into custody.

To secure a § 1547 violation and suspension, PennDOT must establish the licensee: (1) was arrested by a police officer who had reasonable grounds to believe the licensee was operating a motor vehicle 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 refusal would result in a license suspension. Ouick v. PennDOT, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007). PennDOT must produce evidence the arrestee deliberately attempted to produce an inadequate sample. The crucial, determinative factor gleaned from the cases is whether PennDOT’s evidence proves the licensee deliberately tried to delay or undermine the testing process. Bomba v. Commonwealth, 28 A.3d 946; 2011 Pa. Commw. LEXIS 462.

Here, the issue became one of credibility. The issue of credibility is resolved by the Court as the finder-of-fact. Bremmer v. Protected Home Insurance Company, 436 Pa. 494, 260 A.2d 785 (1970); Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916 (1992).

As fact-finder, this Court concluded PennDOT failed to produce evidence sufficient to sustain its burden to prove a deliberate refusal. Rather, the evidence showed Ms. Perry obliged both Troopers throughout the stop. She was candid when asked if she was drinking. She performed all the requested tests at the scene to the satisfaction of Trooper Scrivani, including the portable breath test; curiously contrary to Trooper Buch’s testimony that Ms. Perry refused to complete all the tests.

The uncontroverted evidence showed the Troopers read the O’Connell Warnings and the PennDOT DL-26 form twice to Ms. Perry and, while at the police station; Ms. Perry cooperated with both Troopers’ requests regarding the chemical breath test, performing the first test with satisfactory results. The issue of “refusal” surrounded the second sample. Both Troopers stated Ms. Perry gave an insufficient second sample, and thereafter refused to re-take the test. Ms. Perry testified not only did she agree to subject herself to every test she was asked to take, both at the scene and at the police station, but she completed each one and was never advised that any were improperly completed.

Whereas the Troopers’ testimony conflicted as to whether Ms. Perry consented or refused to participate in all the tests at the scene prior to her arrest, calling into question their credibility, there was sufficient testimony to reasonably conclude that Ms. Perry cooperated fully throughout the entire process. Having found Ms. Perry credible and that PennDOT failed to meet its evidentiary burden to show Ms. Perry deliberately delayed or undermined the testing process, Ms. Perry appeal was sustained and the license suspension rejected.

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