dissenting.
I respectfully dissent.
Here, the majority declines to hold, as a matter of law, that 2 “sticks” in an attempt to draw blood should be sufficient, rendering any subsequent refusal meaningless. However, absent evidence that it was the licensee’s own interference with the extraction process that necessitated additional attempts, I would not hesitate to hold that a licensee who twice endures the blood drawing procedure without success, nevertheless satisfies his burden under section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b). Because I believe that is what occurred here, I respectfully dissent.
The majority contends that Winebarger did, in fact, impede the test and, thereby, limited the possibility of its success. I would disagree. First, I would note that comparisons to Colgan v. Department of Transportation, Bureau of Driver Licensing, 127 Pa.Commonwealth Ct. 479, 561 A.2d 1341 (1989) or Department of Transportation, Bureau of Driver Licensing v. Miller, 155 Pa.Commonwealth Ct. 564, 625 A.2d 755 (1993) are inappropriate. In Colgan, the licensee first refused a breath test and when, in response to his request, a blood test was attempted, the licensee demanded that the sample be drawn from his big toe rather than his arm. In Miller, the licensee would not assent to the blood test at all unless the hospital first assumed liability for any diseases he could contract. Not only were Winebarger’s “restrictions” less severe than the restrictions imposed by the motorists in Col-gan and Miller, a point which both DOT and the majority concede, but in light of Wine-barger’s proven difficulty in giving blood, I do not believe that they should be viewed as impediments at all. Indeed, under the circumstances, I feel that Winebarger was most accommodating.
Unlike a breath test, a blood test is a radical intrusion which is certainly not painless. Here, Winebarger explained that because of a medical condition, he had experienced great difficulty giving blood in the past. Nevertheless, Winebarger did not object when hospital personnel made two attempts to obtain blood, both of which failed. That Winebarger’s condition, in fact, existed was confirmed by the medical personnel through their observation and unsuccessful vena-punctures.
Moreover, even assuming, arguendo, that Winebarger refused to submit to chemical testing, I believe that he has met his burden of proving that this refusal was justified. However, without considering Winebarger’s justification, the majority relies on the trial court’s finding that Winebarger failed to offer any medical evidence to show that he was physically incapable of providing an adequate blood sample; this in spite of our previous holding that when a licensee’s medical condition is obvious, no additional medical evidence is required. Department of Transportation, Bureau of Driver Licensing v. Fleming, 119 Pa.Commonwealth Ct. 343, 547 A.2d 488 (1988).
I do not dispute the finding that Winebar-ger was capable of successfully completing the test and providing a sample of his blood.1 However, the inquiry should be whether Winebarger’s difficulty in providing the requisite sample is a result of an obvious medical condition justifying a “refusal.” Winebarger indicated that he had a condition that caused a difficulty in procuring blood samples,2 and *1098it was due to this difficulty that Winebarger resisted further attempts to draw blood after two unsuccessful vena-punctures. Here, the hospital personnel attested to Winebarger’s “bad veins”3 which made withdrawal of blood a difficult procedure.4 See McQuaide v. Department of Transportation, Bureau of Driver Licensing, 166 Pa.Commonwealth Ct. 683, 647 A.2d 299 (1994); Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa.Commonwealth Ct. 49, 500 A.2d 214 (1985).
Although I agree that a police officer possesses unfettered discretion to choose the type of chemical testing to be given to a licensee, Mooney v. Department of Transportation, Bureau of Driver Licensing, — Pa.Commonwealth Ct. -, 654 A.2d 47 (1994), that discretion cannot be abused when a medical condition obviously precludes successful administration of the requested test. I am offended by a holding that demands an individual, who has an obvious medical condition and who willingly has submitted to two unsuccessful vena-punctures already, submit to as many attempts as it takes to procure a sufficient sample.5 The hospital personnel and trooper knew of Winebarger’s medical condition and, despite that condition, Wine-barger did not object to the hospital personnel’s two attempts to procure a blood sample.
*1099After those attempts proved unsuccessful, the Commonwealth could have required a non-invasive alternate test. See McQuaide. It did not do so. Because blood testing is certainly not a painless procedure and indeed invasive, I believe any other result unreasonable and unjustifiable.6 .a .a
. Obviously, that conclusion is based on common knowledge that if blood is properly drawn by a trained medical technician, one’s veins generally will bleed. Thus if given enough attempts and alternative sites, the hospital personnel may have obtained a sample. In coming to the conclusion here, however, the trial court and the majority ignore the specific facts of this case.
. At the hearing, Winebarger testified that in one instance blood was drawn from his neck by a physician due to the doctor’s inability to draw blood through Winebarger’s arms. (N.T. at 33.) Moreover, the nurse testified that a blood sample *1098could have been taken from other parts of Wine-barger's body (N.T. at 21); however, the hospital personnel did not attempt to use those alternative sites despite Winebarger’s "bad veins” and unpromising arms. (N.T. at 22.)
.The trial court stated that "[t]he record of the July 5, 1994 hearing reveals that [Winebarger] never informed the hospital personnel of any medical condition which would make them encounter difficulty in obtaining blood.” (Trial ct. op. at 4.) However, the record indicates that both the attending nurse and medical technologist were fully aware of Winebarger's condition. The nurse noted that she "examined both of his arms, neither one looked very promising....” (N.T. at 13.) The nurse also recalled that Wine-barger told her that he has had problems in the past in giving blood. (N.T. at 13.) Moreover, the medical technologist informed Trooper Simpler that Winebarger had "bad veins” which was the reason the hospital personnel could not draw blood. (N.T. at 9.) The medical technologist also testified as follows:
A Initially, I put the tourniquet on, uh, since there was difficulty initially, I examined his arm very thoroughly, I examined from — antec-ubital, from approximately the elbow all the way down to the back of his hand, forearm, the back of his forearm, any place where I’ve experienced where there could be a vein available for withdrawal of blood. Uh, I took an extended amount of time to examine his arm because, well, it was very difficult, well, I couldn’t find a — what I thought was a suitable location. After probably a couple minutes of examining his arm, I attempted what I thought was my best chance, y’know, had' — made my best judgment as to where I might possibly get some blood from him.
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Q Could you have ever gotten blood from this arm with another attempt — do you think or not, in your best opinion, based on your experience?
A It would have been very difficult, it would have been a combination of probably experience, judgment, and probably even a little bit of luck, y'know, I mean, you know where— what your anatomy is, and sometimes you just use your judgment if you can’t physically find a location, yeah.
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Q And isn’t it true that in that affidavit you said that you seriously doubt that blood could have been drawn without great difficulty because [Winebarger] was an individual with unusually deep and hard to locate veins?
A It would have been, he was definitely a difficult stick, I — y'know, there’s no doubt about that.
(N.T. at 26, 27, 31.)
. I recognize that even people without such a condition sometimes require more than one vena-puncture. Here, however, Winebarger's failure to bleed is coupled with a prior explanation of the problem and recognition of the problem by medical personnel. Under these circumstances, I believe that the trained medical personnel’s inability to procure a sample after two attempts is sufficient, common sense proof that Winebarger had a condition that made it extremely difficult for him to give blood and, further, medical evidence of that condition as justification for Winebarger's refusal to submit to additional vena-punctures is unnecessary.
. The majority notes that the nurse testified that if given "enough attempts,” she would have been able to obtain a sample. However, nowhere is there any indication as to how many attempts would suffice. In fact, the nurse testified that if she had been given "an unlimited number of attempts,” she would have eventually been able to draw blood. (N.T. at 15.)
. The majority points out that, based on Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Commonwealth Ct. 484, 593 A.2d 932, appeal denied, 529 Pa. 625, 600 A.2d 541 (1991), section 1547(a) of the Vehicle Code, 75 Pa.C.S. § 1547(a), permits more than one attempt at testing, including more than one attempt using the same type of test. However, Kilrain dealt with successive breathalyzer attempts, a testing procedure less intrusive and painful than blood testing. The similarities between the voluntary act of breathing into a breathalyzer and the involuntary act of bleeding into a test tube are limited. Even absent an interfering medical condition, an individual can control how much breath he breathes into a machine. Thus, if that individual produces an insufficient breath sample on a properly calibrated breathalyzer and is subsequently unable to explain why he could not give an adequate sample through medical evidence, that individual has refused to submit to the chemical test. See Department of Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa.Commonwealth Ct. 185, 624 A.2d 792 (1993).