IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marie Mushinsky :

:

v. : No. 570 C.D. 2016

: Submitted: November 10, 2016

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: February 21, 2017

The Department of Transportation, Bureau of Driver Licensing 

(Department) appeals from a March 15, 2016 order of the Court of Common Pleas 

of Luzerne County (Trial Court), granting the appeal of Marie Mushinsky 

(Licensee) from a one-year suspension of her driver’s license imposed by the 

Department for refusal of chemical testing in violation of Section 1547(b)(1)(i) of 

the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly known as the Implied 

Consent Law. For the reasons set forth below, we reverse.1 

 

1

The issue of whether there was a refusal to submit to chemical testing is a question of law 

subject to this Court’s plenary review. Mueller v. Department of Transportation, Bureau of 

Driver Licensing, 657 A.2d 90, 93 (Pa. Cmwlth. 1995). Our scope of review is limited to 

determining whether the trial court’s findings are supported by competent evidence, errors of law 

(Footnote continued on next page...)
2

This matter arises out of a November 14, 2015 incident in which 

Licensee was taken into custody following a minor vehicle accident. A WilkesBarre Police Department Officer (Officer) dispatched to the scene found Licensee 

in the driver’s seat and detected an odor of alcohol emanating from within her 

vehicle; he stated that Licensee was unable to comply with his request that she 

place her vehicle in park and shut off the engine, so he reached into the vehicle and 

did so himself. (March 14, 2016 Transcript of Proceedings (H.T.), Reproduced 

Record (R.R.) at 41a.) Officer requested that Licensee exit her vehicle and she 

stumbled as she did so. Finding “overwhelmingly enough evidence,” Officer took 

Licensee into custody for suspicion of driving under the influence, and transported 

her to the Luzerne County DUI Center. (Id.) There, Officer observed the operator 

on duty at the DUI Center, Detective Casey (Detective), as he read the implied 

consent warnings to Licensee and administered a chemical breath test. (Id., R.R. at 

42a-43a.) After completing the first test sample, which yielded a blood alcohol 

content reading of 0.259 percent, Licensee failed to properly complete a second 

sample,2and her failure to comply was deemed a refusal; Licensee refused to sign 

the DL-26 form. (Id., R.R. at 42a, 44a.) 

By notice dated December 1, 2015, the Department informed 

Licensee that her license was suspended for a period of one year effective January 

5, 2016 based on her refusal to submit to a chemical breath test on November 14, 

2015. (R.R. at 30a-32a.) Licensee appealed the suspension and a de novo hearing 

 

(continued...)

have been committed, or the trial court has abused its discretion. McCloskey v. Department of 

Transportation, Bureau of Driver Licensing, 722 A.2d 1159, 1161 (Pa. Cmwlth. 1999).

2

Pursuant to 67 Pa. Code § 77.24, authorities are required to obtain two consecutive valid breath 

samples.
3

was held before the Trial Court on March 14, 2016. (Petition for Appeal, R.R. at 

28a-29a; H.T., R.R. at 40a-48a.) The Trial Court granted Licensee’s appeal and 

the Department appealed to this Court, arguing that the Trial Court erred as a 

matter of law in holding that Licensee did not refuse chemical testing. 

At the hearing, Officer read from his affidavit of probable cause, 

wherein he stated, inter alia, that Detective advised Licensee that the police 

requested a chemical breath test, and that after explaining the process to Licensee 

several times, Licensee continued to ask to speak with her sister; after Detective 

read the DL-26 form to Licensee, she agreed to perform the chemical breath test. 

(H.T., R.R. at 42a.) 

Detective testified that throughout the processing, Licensee was not 

following instructions, stating:

But the whole entire processing of [Licensee] she wasn’t 

following instructions. And I give very explicit and 

simple instructions of once you start to blow, do not stop, 

blow good, strong and steady until I tell you to stop and 

before you start to make a nice tight seal around the tip of 

the mouthpiece as if you’re blowing into a straw. Those 

are historically the same commands I give to everybody. 

[Licensee] said that she understood but when – if you 

were to examine the [Datamaster] ticket, her breathing 

pattern is not consistent with the instruction I provided on 

either test number one or two.

(Id., R.R. at 43a-44a.) He testified further that although he provided the instruction 

to provide a good, strong and steady breath until directed to stop, the Datamaster 

report graph for the first test indicates that Licensee introduced at least six breaths 

and then stopped, and that only when she introduced enough air and continued to 

blow for a long enough period did the instrument capture the sample. (Id., R.R. at 

44a; Subject Test, R.R. at 58a.) Detective stated that the Datamaster report graph 
4

for the second test demonstrates that during that test, Licensee’s proffered breath 

sample faded off, stopped, and then after three additional breaths, Licensee sucked

back into the instrument, causing it to register as a “suck-back” error, which

invalidated the test. (Id.) Detective testified that at that point, he informed 

Licensee that she had not performed the test correctly, and he was going to record 

a refusal. (H.T., R.R. at 44a.) 

Licensee testified that Detective did not offer her the opportunity to 

provide a third breath sample or to submit to a blood test, and it was not her 

intention to not give a sample. (Id., R.R. at 47a.) Licensee also acknowledged that 

Detective had instructed her on how to perform the breath test, how to make a tight 

seal around the tubing, and instructed her that she needed to blow steadily until he 

told her to stop, and she stated that she believed she had performed the test to the 

best of her ability. (Id.)

In its opinion, the Trial Court noted that it regarded its decision as a 

determination of law rather than one of credibility, and found that “[t]o the extent 

that good faith plays any role in the refusal analysis...[Licensee] acted in good 

faith during the process of attempting to comply with [Detective’s] instructions.” 

(Trial Court Opinion, R.R. at 27a, 27a n.4.) The Trial Court further found that 

“there is reasonable explanation for [Licensee’s] failure to complete the second test 

given the number of breaths required before the machine ‘captured’ the initial 

sample and the description contained in the record concerning [Licensee’s] attempt 

to provide a second sample.” (Id., footnote omitted.)

In order to sustain a suspension of operating privileges under the 

Implied Consent Law, the Department is required to prove that the licensee (i) was 

arrested for driving under the influence by a police officer who had reasonable 
5

grounds to believe that the licensee was operating the vehicle under the influence 

of alcohol or a controlled substance; (ii) was asked to submit to a chemical test; 

(iii) refused to do so; and (iv) was warned that a refusal would result in a 

suspension of operating privileges. Marone v. Department of Transportation, 

Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010). Once the 

Department meets its burden of showing that the licensee refused chemical testing, 

the burden shifts to the licensee to show that he or she was not capable of making a 

knowing and conscious refusal or was physically unable to take the test. 

Giannopoulos v. Department of Transportation, Bureau of Driver Licensing, 82 

A.3d 1092, 1094 (Pa. Cmwlth. 2013); Kollar v. Department of Transportation, 

Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). 

When a licensee fails to “exert a total conscious effort, and thereby 

fails to supply a sufficient breath sample, such is tantamount to a refusal to take the 

test.” Appeal of Budd, 442 A.2d 404, 406 (Pa. Cmwlth. 1982). Even a licensee’s 

good faith attempt to comply with the test constitutes a refusal where the licensee 

fails to supply a sufficient breath sample, absent a proven medical reason that 

precludes a licensee from doing so. Sweeney v. Department of Transportation, 

Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002); Pappas v. 

Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 

(Pa. Cmwlth. 1996); Department of Transportation, Bureau of Driver Licensing v. 

Kilrain, 593 A.2d 932, 935 (Pa. Cmwlth. 1991) (“Anything less than a completed 

breathalyzer test which registers a blood alcohol reading on the breathalyzer 

constitutes a refusal”); Department of Transportation, Bureau of Driver Licensing 

v. Berta, 549 A.2d 262, 264 (Pa. Cmwlth. 1988). Given our well-established law, 
6

Licensee’s “good faith” attempt to complete a second breath test cannot excuse her 

failure to do so. 

Licensee argues that our Court’s decision in Bomba v. Department of 

Transportation, Bureau of Driver Licensing, 28 A.3d 946 (Pa. Cmwlth. 2011), 

where the licensee gave unqualified consent to breath testing, was unable to 

provide an adequate sample within the timeframe allowed by the machine and 

immediately sought to retake the test but was refused, is instructive and should be 

followed here. However, Bomba is readily distinguishable. There, our Court 

found that licensee’s conduct did not constitute a refusal; Bomba did not involve a 

situation wherein there were multiple attempts to provide an adequate breath 

sample, nor was there any record evidence that the licensee deliberately failed to 

follow instructions or undermine the testing process in any way. Id. at 951. In 

Bomba, the licensee was provided with just one opportunity to provide an adequate 

breath sample; she attributed her inability to perform the test the first time to being 

upset by her arrest and placement in a holding cell and, upon hearing that her 

failure to complete the test would be deemed a refusal, she immediately asked for 

another chance. Id. at 948-949.

 Sub judice, there is ample evidence in the form of testimony of both 

Officer and Detective that Licensee was hesitant to take the test, and repeatedly 

asked to see her sister prior to taking the test; despite being provided with 

instructions, repeatedly and patiently administered, she did not follow them, and 

although there is no evidence that she was unable to perform the test the way she 

had been told to perform it, she did not do so. (H.T., R.R. at 42a-44a.) As the 

Court noted in Bomba, refusal cases are highly fact sensitive, and “[the 

Department] is incorrect that in every case where the officer decides not to give the 
7

licensee a second chance at a breathalyzer, it has proven a refusal to consent to 

chemical testing.” 28 A.3d at 951. We find in this case that Licensee was given 

more than sufficient opportunity to perform the test and her failure to follow 

Detective’s instructions and to blow properly into the machine, even after she 

ultimately managed to blow sufficiently on the first test to allow the breathalyzer to 

capture a reading, constitutes a refusal.3 Licensee did not offer any evidence to 

show that she could not have made a knowing and conscious decision to refuse 

testing or that she was physically incapable of completing a breath test.

For the foregoing reasons, we reverse the Trial Court, and direct the 

Department to reinstate the one-year suspension of Licensee’s operating privilege

imposed in accordance with the Implied Consent Law. 

____________________________________

JAMES GARDNER COLINS, Senior Judge

 

3

Licensee also argues that the Department has not established that the second breath test was 

taken within a two-hour time limit beginning with her arrest, as set forth in the Vehicle Code, 75 

Pa. C.S. § 3802(a)(2). This argument is completely without merit. Section 3802(a)(2) relates to 

driving under the influence of alcohol or controlled substance-general impairment and provides: 

“An individual may not drive, operate or be in actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the 

individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the 

individual has driven, operated or been in actual physical control of the movement of the 

vehicle.” 75 Pa. C.S. § 3802(a)(2). First, the record conclusively shows that the tests were 

administered within two hours of Licensee’s arrest. (H.T., R.R. at 41a-42a, 58a.) Second, our 

Courts have consistently held that a licensee may not seek civil remedies, i.e., reversal of a 

license suspension, where her rights as a criminal defendant have been compromised. Sitoski v. 

Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 21 (Pa. Cmwlth. 2010). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marie Mushinsky :

:

v. : No. 570 C.D. 2016

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

O R D E R

AND NOW, this 21st day of February, 2017, the order of March 18, 

2016 of the Court of Common Pleas of Luzerne County in the above-captioned 

case is REVERSED. 

____________________________________

JAMES GARDNER COLINS, Senior Judge