Pappas v. Commonwealth, Department of Transportation

KELLEY, Judge,

dissenting.

I respectfully dissent.

*510In order to sustain a license suspension under 75 Pa.C.S. § 1547(b), DOT must establish that the driver: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of her driver’s license. Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994); Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989); Department of Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa.Cmwlth. 185, 624 A.2d 792 (1993). Once the Commonwealth meets its burden, it is the driver’s responsibility to show that she was not capable of making a knowing and conscious refusal to take the test. Ingram; O’Connell.

If a driver, when taking a breathalyzer test, does not exert a total conscious effort by failing to supply a sufficient breath sample to the machine, it is tantamount to a refusal to take the test and warrants the suspension of her driver’s license. Lohner; Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Cmwlth. 484, 593 A.2d 932 (1991); Department of Transportation, Bureau of Driver Licensing v. Pestock, 136 Pa.Cmwlth. 694, 584 A.2d 1075 (1990); Books v. Department of Transportation, Bureau of Driver Licensing, 109 Pa.Cmwlth. 25, 530 A.2d 972 (1987); Budd Appeal, 65 Pa.Cmwlth. 314, 442 A.2d 404 (1982). Thus, if the printout from a properly calibrated breathalyzer machine indicates that the driver has provided a “deficient sample”, without medical proof that the driver was unable to supply sufficient air, such “deficient sample” constitutes a per se refusal warranting suspension of the driver’s license. Lohner; Pes-tock.

In establishing that Pappas had refused to submit to chemical testing as part of its prima facie case, DOT attempted to show that she failed to supply the breathalyzer machine with an adequate breath sample to complete chemical testing. To this end, DOT introduced two printouts from the machine which indicated that she provided insufficient breath samples during the chemical tests conducted by Officer Mentesana. Officer Mentesana testified that, based on these printouts, he completed a form stating that she had refused to submit to chemical testing. DOT introduced a document showing that Officer Mentesana is a certified operator of a breathalyzer machine, and Officer Mentesana stated that the machine had been calibrated within thirty days of the tests administered in this case. However, when DOT attempted to introduce a document purporting to prove certification of the breathalyzer machine, the trial court sustained a defense objection to its admission.

In general, devices which perform chemical tests of breath must be tested for accuracy and calibrated as prescribed by the regulations of the Departments of Health and Transportation. 75 Pa.C.S. § 1547(c)(1). The accuracy of a breathalyzer machine is presumed on the admission into evidence of a certificate of accuracy. 67 Pa.Code § 77.25(e). The certificate must be completed by a certified breath test operator who conducts a prescribed accuracy inspection test, must be signed and dated and must evidence an inspection test within thirty days prior to the administration of the subject test. 67 Pa.Code § 77.25(a), (b) and (e). As with accuracy tests, a certificate of calibration of a breathalyzer machine must be completed, signed and dated by the individual who performed the prescribed calibration procedure. 67 Pa.Code § 77.26(b), (e). A certificate or log showing that a breathalyzer machine was calibrated and tested for accuracy and that the machine was accurate is presumptive evidence of those facts. 75 Pa. C.S. § 1547(e)(1).

In this case, neither a certificate of accuracy nor a certificate of calibration was admitted into evidence at the trial de novo. The only evidence which indicated that Pappas had failed to supply a sufficient breath sample were the printouts from the breathalyzer machine and Officer Mentesana’s reliance on these printouts. The testimony showed that Pappas complied with Officer Mentesana’s instructions and provided the machine with samples of her breath when told to do so. There was no evidence which indicated that she refused to provide a full breath to the *511machine, allowed air to escape from the sides of her mouth, stopped blowing in the course of the tests, or failed to tighten her lips around the machine’s mouthpiece during the tests. See, e.g., Pestock; Books; Budd.

Questions of credibility and conflicts in the evidence are for the trial court to resolve. Ingram; O’Connell. If there is sufficient evidence in the record to support the findings of the trial court, we must pay proper deference to the trial court as fact finder and affirm. Ingram; O’Connell. Without any proof regarding the reliability of the breathalyzer machine, the trial court as fact finder was free to discount the evidentiary weight to be given the printouts. Ingram; O’Con-nell. In addition, it was for the trial court alone to weigh this evidence against that which indicated that Pappas had not refused to submit to chemical testing of her breath. Ingram; O’Connell. Therefore, unlike the majority, I cannot say that the trial court erred in determining that DOT had failed to establish a prima facie case to support the section 1547(b) license suspension in this case.

Accordingly, I would affirm the trial court’s order sustaining Pappas’ appeal.