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.
PennDOT Refusal Credibility Issues
On Behalf of Hark and Hark | Oct 8, 2012 | Firm News |
Categories
- Blog (36)
- Criminal Defense (48)
- Drug Crimes (31)
- Dui (20)
- Federal Crimes (13)
- Firm News (306)
- Injuries (6)
- Medical Nursing (60)
- Pennsylvania Criminal Law (34)
- Philadelphia Criminal Justice Updates (13)
- Professional License Application (37)
- Professional License Issues (194)
- Professional Misconduct (9)
- Substance Abuse (1)
- Uncategorized (2)
- USMLE and ECFMG (3)
Archives
- October 2024 (4)
- September 2024 (1)
- August 2024 (3)
- July 2024 (3)
- June 2024 (2)
- May 2024 (3)
- April 2024 (4)
- March 2024 (2)
- February 2024 (3)
- January 2024 (2)
- December 2023 (3)
- November 2023 (3)
- October 2023 (4)
- September 2023 (1)
- August 2023 (2)
- July 2023 (3)
- June 2023 (3)
- May 2023 (2)
- April 2023 (3)
- March 2023 (3)
- February 2023 (3)
- January 2023 (2)
- December 2022 (4)
- November 2022 (3)
- October 2022 (3)
- September 2022 (2)
- August 2022 (4)
- July 2022 (4)
- June 2022 (5)
- May 2022 (2)
- April 2022 (2)
- March 2022 (3)
- February 2022 (4)
- January 2022 (2)
- December 2021 (3)
- November 2021 (2)
- October 2021 (3)
- September 2021 (2)
- August 2021 (4)
- July 2021 (3)
- June 2021 (3)
- May 2021 (3)
- April 2021 (2)
- March 2021 (3)
- February 2021 (3)
- January 2021 (4)
- December 2020 (4)
- November 2020 (5)
- October 2020 (3)
- September 2020 (8)
- July 2020 (3)
- June 2020 (5)
- May 2020 (2)
- April 2020 (8)
- March 2020 (9)
- February 2020 (7)
- January 2020 (4)
- December 2019 (8)
- November 2019 (5)
- October 2019 (6)
- September 2019 (1)
- August 2019 (3)
- July 2019 (1)
- June 2019 (3)
- May 2019 (5)
- April 2019 (6)
- March 2019 (4)
- February 2019 (5)
- January 2019 (7)
- December 2018 (10)
- November 2018 (8)
- October 2018 (7)
- September 2018 (5)
- August 2018 (6)
- July 2018 (3)
- June 2018 (8)
- May 2018 (5)
- April 2018 (1)
- March 2018 (2)
- February 2018 (2)
- January 2018 (4)
- December 2017 (2)
- November 2017 (5)
- October 2017 (3)
- September 2017 (2)
- August 2017 (4)
- July 2017 (3)
- June 2017 (6)
- May 2017 (2)
- April 2017 (3)
- March 2017 (2)
- February 2017 (1)
- January 2017 (5)
- November 2016 (3)
- October 2016 (5)
- September 2016 (2)
- August 2016 (5)
- July 2016 (1)
- June 2016 (1)
- May 2016 (1)
- April 2016 (2)
- March 2016 (3)
- February 2016 (4)
- January 2016 (2)
- November 2015 (3)
- October 2015 (2)
- September 2015 (3)
- August 2015 (1)
- July 2015 (3)
- June 2015 (3)
- May 2015 (2)
- April 2015 (4)
- March 2015 (3)
- February 2015 (1)
- January 2015 (2)
- December 2014 (1)
- November 2014 (3)
- October 2014 (1)
- September 2014 (2)
- August 2014 (2)
- July 2014 (2)
- June 2014 (5)
- May 2014 (3)
- April 2014 (5)
- March 2014 (2)
- February 2014 (1)
- January 2014 (2)
- December 2013 (3)
- November 2013 (5)
- October 2013 (4)
- September 2013 (2)
- July 2013 (3)
- June 2013 (3)
- May 2013 (5)
- April 2013 (2)
- February 2013 (1)
- January 2013 (1)
- December 2012 (2)
- November 2012 (1)
- October 2012 (7)
- September 2012 (2)
- August 2012 (1)
- July 2012 (1)
- June 2012 (1)
- May 2012 (1)
- April 2012 (1)
- February 2012 (3)
- January 2012 (2)
- September 2011 (1)
- August 2011 (1)
- June 2011 (2)
- May 2011 (1)
- April 2011 (2)
- March 2011 (2)
- February 2011 (1)
- January 2011 (1)
- December 2010 (3)
- November 2010 (2)
- October 2010 (1)
- September 2010 (1)
- August 2010 (3)