Winebarger v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

RODGERS, Senior Judge.

Thomas D. Winebarger (Winebarger) appeals from an order of the Court of Common Pleas of Bradford County (trial court) denying his appeal and sustaining the one-year suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to Section 1547(b) of the Vehicle Code (Code), 75 Pa.C.S. § 1547(b).1 We affirm.

On November 20, 1993, State Trooper Michael Allen Simpler (Trooper Simpler) was called to the scene of an accident where he encountered a pick-up truck lying on its roof in a ditch. Winebarger admitted to being the operator of the truck and Trooper Simpler observed him staggering and swaying, detecting a strong odor of alcohol coming from his person. At the hospital, Winebarger was arrested and requested to submit to chemical testing. Winebar-ger agreed to submit to a blood test but stated that medical personnel would get only two chances to draw his blood.2 Winebarger indicated that his recessed or small veins had often made getting blood from him difficult in the past, and the first attempt by a nurse in fact proved unsuccessful. Assistance was requested from a medical technologist who also attempted to draw blood from Winebar-ger. Winebarger refused to allow the technician to make an attempt on the same arm, and offered his other arm instead. This attempt was also unsuccessful and Winebar-ger resisted any further attempts to draw blood. Trooper Simpler considered Wine-barger’s conduct a refusal and his license was suspended.

Winebarger appealed to the trial court, arguing that he possessed a medical justification requiring an alternate type of test and that his refusal was negated by the inability of the hospital personnel to draw blood. The trial court disagreed, finding that the type of test is within the complete discretion of the arresting officer and that Winebarger’s actions fell short of the unqualified, unequivocal assent required of a motorist requested to submit to chemical testing. The trial court affirmed DOT’s suspension, and Winebarger now appeals to this Court.3

*1095Winebarger argues that the trial court erred as a matter of law when applying the unequivocal and unconditional language taken from this Court’s decision in Colgan v. Department of Transportation, Bureau of Driver Licensing, 127 Pa.Commonwealth Ct. 479, 561 A.2d 1341 (1989). Colgan involved a motorist who demanded that blood be extracted from his big toe rather than from his arm.4 When the sample extracted from his toe proved to be inadequate, his actions were deemed a refusal and his license was suspended. This Court affirmed the suspension, reiterating established law that “anything less than unqualified, unequivocal assent to chemical testing constitutes a refusal.” Id. at 481, 561 A.2d at 1342.

Complaining that the above case and the law on which it relies is inapplicable because there is a difference between quantifying the number of “radical intrusions” into his arm and qualifying where blood may be taken, Winebarger urges this Court to hold, as a matter of law, that consent to one “stick” into each arm should be sufficient, rendering any subsequent refusal meaningless for compliance purposes. This we decline to do. We will not quantify how many attempts at drawing blood will be deemed proper consent, preferring instead to continue to analyze the facts of each case independently.

Here, there are several facts in existence, as found by the trial court, which support its decision to affirm Winebarger’s license suspension.5 Firstly, Winebarger qualified his acceptance, even before testing, on just two attempts by medical personnel. (N.T. 6, 11). Conceivably, this conditional acceptance alone is justification for Winebarger’s suspension. In Department of Transportation, Bureau of Driver Licensing v. Miller, 155 Pa.Commonwealth Ct. 564, 625 A.2d 755 (1993), also relied upon by the trial court, we affirmed the suspension of a motorist who conditioned his acceptance upon the hospital assuming liability should he contract hepatitis or Acquired Immune Deficiency Syndrome.

Next, after the first attempt failed, and when the more highly trained medical technologist was asked to attempt to draw blood, Winebarger refused to produce his “most promising arm,” the one previously and unsuccessfully chosen by the nurse. (N.T. 13, 24r-25). Once again, Winebarger has placed impediments and preconditions upon his consent to chemical testing, potentially limiting the chances of a successful test.

DOT acknowledges that the restrictions insisted upon by Winebarger were not as restrictive as those imposed by the motorists in Colgan or Miller. Although not willing to state how many “needle sticks” a motorist must endure before complying with the requirements of Section 1547, DOT urges us to hold that it is more than two.

The law is clear that a “refusal” is “defined” as “anything substantially less than unqualified, unequivocal assent” to chemical testing. Groscost, 142 Pa.Commonwealth Ct. at 39, n. 1, 596 A.2d at 1218-19, n. 1 (citing Department of Transportation v. Mumma, 79 Pa.Commonwealth Ct. 108, 468 A.2d 891 (1983)). Section 1547 states in part as follows:

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have *1096given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance_ (Emphasis added.)

Section 1547 permits more than one attempt at testing, including more than one attempt using the same type of test. Indeed, a failure to complete a second breathalyzer attempt, even after the first one proved successful, will be deemed a refusal. Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Commonwealth Ct. 484, 593 A.2d 932, petition for allowance of appeal denied, 529 Pa. 625, 600 A.2d 541 (1991).

Here, it is undisputed that Winebarger refused to allow further attempts at drawing blood from his arms following the second unsuccessful attempt. Once DOT has shown that a motorist has refused to submit to chemical testing, as it has here, the burden shifts to the motorist to prove by competent medical evidence that he was physically unable to take the test. Department of Transportation, Bureau of Driver Licensing v. Wilhelm, 156 Pa.Commonwealth Ct. 24, 626 A.2d 660 (1993); Larkin v. Norton, 109 Pa.Commonwealth Ct. 611, 531 A.2d 844 (1987).

In this case, not only has Winebarger failed to submit any medical evidence that he was physically unable to take the test, he actually admitted that he had given blood samples in the past. (N.T. 34r-35). Furthermore, the only medical testimony on record supports the trial court’s finding that Wine-barger was physically capable of successfully completing the test and providing a sample of his blood. Both the nurse and the medical technologist stated that it often takes more than one attempt, or even more than two attempts, before blood may be drawn from an individual. (N.T. 15, 23). The nurse also testified that if given enough attempts, she would have been able to draw blood from Winebarger.

We understand that there may be circumstances in which the anatomical structure or medical history of an individual will provide justification for his or her refusal or inability to comply with chemical testing. The motorist in Department of Transportation, Bureau of Driver Licensing v. Fleming, 119 Pa.Commonwealth Ct. 343, 547 A.2d 488 (1988), a case advanced by Winebarger in support of his argument, effectively proved his physical inability to consent to a blood test through a demonstration of new skin grafts on his arms. Contrary to this case, the trial court in Fleming accepted the motorist’s féar of puncturing these grafts as competent evidence that he was physically unable to take the blood test.

Citing Larkin v. Commonwealth, 109 Pa.Commonwealth Ct. 611, 531 A.2d 844 (1987), Winebarger argues that where the inability of a motorist to complete the chemical test is obvious, competent medical evidence is not needed to challenge the suspension. We agree that this is a correct statement of the law and recognize that in Fleming, the motorist satisfied his burden merely by rolling up his sleeves in the trial court, exhibiting the new skin grafts covering his arm. However, we disagree with Winebar-ger’s assertion that the inability of the medical personnel to draw blood automatically renders his condition obvious. As mentioned previously, medical testimony exists throughout the record indicating that many attempts are sometimes needed before a health care professional can successfully draw a blood sample.

Whether a motorist has satisfied his burden of proving an inability to take a chemical test is a factual determination to be made by the trial court. Waigand v. Commonwealth, 68 Pa.Commonwealth Ct. 541, 449 A.2d 862 (1982). Here, the trial court found there was insufficient evidence to demonstrate that Winebarger was physically unable to take the blood test. As an appellate Court, we are bound by this finding.

Accordingly, the order of the trial court is ' affirmed.

*1097 ORDER

NOW, March 9, 1995, the order of the Court of Common Pleas of Bradford County, in the above-captioned matter, is hereby affirmed.

. Section 1547(b) of the Code provides for the suspension of a driver’s license for a period of one year upon a refusal to submit to chemical testing to determine blood alcohol content.

. Trooper Simpler testified that a breath test was not available at his post and that urine testing is hardly ever used.

.In reviewing a driver's license suspension case, our scope of review is limited to determining whether the trial court committed an error of law or an abuse of discretion and whether its *1095findings of fact are supported by substantial evidence. Commonwealth v. Danforth, 530 Pa. 327, 608 A.2d 1044 (1992). In addition to our limited scope of review, we are required to view the evidence in light most favorable to the party that prevailed before the trial court. Department of Transportation, Bureau of Driver Licensing v. Malizio, 152 Pa.Commonwealth Ct. 57, 618 A.2d 1091 (1992).

. Initially, Colgan refused a breath test and requested the blood test.

. We note that while the question of whether a motorist has refused a chemical test is one of law, reviewable by this Court, our decision must be based upon the facts as found by the trial court, the ultimate factfinder in these proceedings. Department of Transportation, Bureau of Driver Licensing v. Groscost, 142 Pa.Commonwealth Ct. 36, 596 A.2d 1217 (1991).