IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Fullam, :

Appellant :

: No. 124 C.D. 2020

v. :

: Submitted: August 28, 2020

Commonwealth of Pennsylvania :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: March 30, 2021

Daniel Fullam (Fullam) appeals from the December 16, 2019 order of the 

Court of Common Pleas of Montgomery County (trial court), which denied his appeal 

from the notice of the Pennsylvania Department of Transportation (Department), 

Bureau of Driver Licensing (Bureau), that suspended his driver’s license due to his 

alleged refusal to submit to a chemical breathalyzer test in relation to his arrest for 

driving under the influence. Upon review, we reverse.

By letter mailed August 21, 2017, the Bureau sent Fullam official notice 

that his driving privilege would be suspended under section 1547(b)(1)(i) of the 

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt 

completed her term as President Judge.
2

Vehicle Code, 75 Pa.C.S. §1547(b)(1)(i)

2 because he allegedly refused a chemical

breathalyzer test on August 6, 2017. (Original Record (O.R.) Item No. 0.) Fullam 

appealed the notice of suspension to the trial court on September 18, 2017. Id. A 

hearing was scheduled for December 18, 2017. (O.R. Item No. 1.) However, the 

hearing was continued numerous times and was eventually held on December 16, 2019.

(Reproduced Record (R.R.) at 2a.) 

At the hearing, Pennsylvania State Police (PSP) Trooper Anthony 

Giarrizzo (Trooper Giarrizzo) testified on behalf of the Bureau as follows. (Notes of 

Testimony (N.T.) at 8, R.R. at 10a.) Trooper Giarrizzo was working on the night of 

August 5, 2017, at a sobriety checkpoint in Montgomery County, where he encountered

Fullam. (N.T. at 9.) Trooper Giarrizzo detected the smell of marijuana emanating from 

Fullam’s vehicle, noticed the smell of alcohol on Fullam’s breath, and observed that

his eyes were glassy and bloodshot. Id. at 9-10. Trooper Giarrizzo administered the 

horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test, 

observing signs of impairment during each test. Id. at 10. He also administered a 

preliminary breath test which returned a blood alcohol concentration (BAC) reading of

.116. Id. Believing that Fullam was intoxicated, Trooper Giarrizzo arrested him for 

driving under the influence and transported him to the PSP Skippack Barracks for 

additional chemical testing. Id. at 11. Trooper Giarrizzo explained that Fullam was 

cooperative, answered questions, and agreed to undergo field sobriety tests and return 

to the PSP barracks without issue. Id. at 14. Trooper Giarrizzo testified that Fullam 

2 This section provides, in relevant part, “that if any person placed under arrest for driving 

under the influence of alcohol ‘is requested to submit to chemical testing and refuses to do so, . . . the 

department shall suspend the operating privilege of the person . . . for a period of 12 months.’” Bomba 

v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946, 947 (Pa. Cmwlth. 2011)

(quoting 75 Pa.C.S. §1547(b)(1)(i)).
3

consented to a breathalyzer test but that it was determined by former Trooper Dean 

Wright (Trooper Wright) to be a refusal. Id. at 13.

Next, Trooper Wright testified as follows. Trooper Wright was employed

with the PSP for 25 years, was stationed at the Skippack Barracks, and was working 

there on the night of August 5, 2017. (N.T. at 16.) Trooper Wright was employed as 

a certified intoxilyzer operator and maintenance officer. Id. at 16-17. On August 5, 

2017, he used an accurately calibrated DataMaster breathalyzer machine to perform a 

breath analysis test on Fullam. Id. at 17-18. Trooper Wright told Fullam that he would 

have to produce two separate breath samples and explained to Fullam how to properly 

give a breath sample. Id. at 19. Trooper Wright explained that Fullam’s first breath 

registered on the machine properly, but it appeared that his second breath failed to 

register as a proper sample. Id. at 19. 

Trooper Wright next examined a result ticket that was printed from the 

DataMaster (Result Ticket), which depicted the results of Fullam’s test both 

numerically and graphically. (N.T. at 20, R.R. at 82a.) Trooper Wright explained that 

the two lines on the graph represented the breaths Fullam blew into the DataMaster and 

that his first breath registered as a solid line, yielding a BAC reading of .113. (N.T. at 

20.) However, he explained that the second line, a dotted one, was the result of Fullam 

failing to give a proper breath sample. Id. at 20-21. Yet, Trooper Wright could not 

recall what Fullam was doing during the second sampling. Id. at 21-22. Specifically, 

Trooper Wright explained as follows: 

Okay. If the first sample was good, I’m going to tell you it 

was good. Okay? And I’m going to tell you typically -- I 

ran hundreds of tests. Not thousands, hundreds -- give me 

the same as you gave me the first time. This is any person 

that comes through that I’m giving the test to, Your Honor. 

Okay? You gave me a good first sample, let’s do it a second 
4

time, because if you don’t do it a second time, you can 

disable this instrument. And if you disable this instrument 

that means it’s going to be out of service until I put it back 

up. Since I was the maintenance officer, that’s why Skippack 

had me run all of their testing for DUI checkpoints. 

So, he must have not been giving a proper sample the second 

time. And I’m going to allow you to do it once, okay, you 

know, take a deep breath, you’re going to blow like you’re 

blowing up a balloon. Do it like the first time. He must have 

not [done] it like the first time. So, what I have to do, and 

what you’re taught, Your Honor, is you abort the test before

he disabled the instrument.

Id. at 22-23. Thus, instead of having the machine disabled, Trooper Wright aborted 

the test and considered the test to be a refusal by Fullam. Id. at 23.

On cross-examination, Trooper Wright testified that he had a vague 

independent recollection of Fullam’s test. Id. at 24. Therefore, he explained that his

direct testimony explained his normal procedure and what he would typically do in 

administering a breath test. Id. He further explained that he had no independent 

recollection that Fullam “demonstrated a demeanor or symptoms that he was 

intentionally trying not to give a proper breath sample.” Id. at 26. Following Trooper 

Wright’s testimony, the Bureau rested. 

Next, Fullam testified, and explained that he provided both the first and 

second breath sample in the DataMaster to the best of his ability and did not 

intentionally or purposefully fail to give an adequate sample. Id. at 29. Fullam testified 

that he was cooperative with the officers from the time he was stopped on the road to 

when he was taken to the Skippack Barracks. Id. at 29-30. 

Next, Ronald Henson, Ph.D., testified on Fullam’s behalf. Dr. Henson 

was accepted by the court as an expert in breathalyzers without objection. Id. at 36. 

Dr. Henson testified that he was familiar with the DataMaster machine and reviewed 
5

the DataMaster records in the instant case. Id. at 37. Dr. Henson reviewed the same 

Result Ticket as Trooper Wright. Id. Dr. Henson testified, that based on his 

experience, he did not believe Fullam purposefully failed to provide a sufficient breath 

sample. To the contrary, he explained that 

at the bottom of [the Result Ticket] it says, “blank error.” A 

blank error has nothing to do with an individual blowing or 

attempting to blow into a device. That error would be called 

an invalid sample, perhaps, but a blank error is simply 

restricted to the machine or the device itself in that the 

chamber is not able to clear itself to purge all of the ethanol 

out of the chamber to get it to a .003 or less to continue with 

testing. So that is a machine or device error issue, nothing to 

do with an individual. 

Id. at 38-39. Dr. Henson explained that if Fullam did not give a proper breath sample, 

the Result Ticket would have been “different in profile and it would likely [have said]

either incomplete test or invalid sample.” Id. at 39. He explained that the dotted line 

on the Result Ticket, which represented the airflow, was generally consistent with an 

individual attempting to give proper air flow. Id. at 42. Nevertheless, Dr. Henson 

ultimately concluded that the DataMaster encountered a blank error, and it appeared 

from the Result Ticket that Fullam was attempting, to the best of his ability, to register 

a proper breath example. Id. at 44-45. 

On December 16, 2019, the trial court denied Fullam’s appeal and 

reinstated his suspension. (O.R. Item No. 14.). Fullam sought reconsideration of the 

trial court’s order, which was denied on January 6, 2020. (O.R. Item No. 17.) Fullam 

appealed to this Court. 

The trial court issued an opinion dated March 18, 2020, in support of its 

December 16, 2019 order. (Trial Ct. Op. at 1.) The trial court noted that on August 5, 

2017, Fullam’s vehicle was stopped, and Trooper Giarrizzo noticed signs that Fullam 
6

was under the influence of alcohol. Id. The trial court also noted that Fullam was 

arrested for driving under the influence and was transported to the Skippack Barracks 

to undergo a breath test on the DataMaster machine, to which he consented. Id. The 

trial court found that Trooper Wright administered the test on the DataMaster machine, 

which was accurately calibrated. Id. 

The trial court concluded that, based on Trooper Wright’s testimony about 

Fullam’s failure to give a proper breath sample and the Result Ticket, a refusal had

occurred. Id. The trial court stated Fullam failed to present evidence that he was 

incapable of following Trooper Wright’s instructions or to provide a sufficient breath 

sample. (Trial Ct. Op. at 2.) The trial court held that, under Pennsylvania law the 

failure to provide a required breath sample constitutes a refusal. Id. The trial court 

found “the testimony of the two Troopers [(Giarrizzo and Wright)] to be credible” and 

it also found “the testimony of [Fullam’s] expert [(Dr. Henson)] was not credible or 

persuasive.” Id. In sum, the court concluded that Fullam “did not follow [Trooper 

Wright’s] instructions and provide a proper breath sample,” and therefore denied the 

license suspension appeal. Id. 

Discussion

On appeal,3 Fullam raises two issues for this Court’s review. First, 

whether the trial court’s conclusion that he refused a chemical test was supported by 

3 The issue of whether a licensee refused to submit to a chemical test is a question of law 

subject to plenary review by this Court. 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, whether errors of law have 

been committed, or whether the trial court’s determinations demonstrate a manifest abuse of 

discretion.” McCloskey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 

1159, 1161 (Pa. Cmwlth. 1999).
7

the evidence. Second, whether the trial court erred in allowing Trooper Wright to 

testify to his assumptions as to whether Fullam refused the test. 

As to the first issue, Fullam maintains that the Bureau failed to carry its 

burden to establish that Fullam refused the test. Fullam analogizes this case to Reinhart 

v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761 (Pa. 

Cmwlth. 2008), where a licensee provided two breath samples, but was considered to 

have refused the test after giving the second sample. Fullam explains that, in Reinhart,

the breathalyzer machine shut down and printed out a slip indicating a sample 

deviation, and the officer determined this constituted a refusal by the licensee. We held 

the facts did not establish a refusal because the sample deviation slip indicated a 

malfunction by the machine, and it was erroneous for the officer to fail to allow the 

licensee to take a second test following the malfunction. 

Fullam argues that this case is also analogous to Bomba v. Department of 

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

Fullam argues, we affirmed a lower court’s determination that a single failed attempt 

to perform a breath test did not constitute a refusal where the driver’s improper breath 

sample was attributable to the stress of her first arrest. He argues that our conclusion 

rested on the fact that there was no evidence that the licensee was intentionally

attempting to interfere with the test, but to the contrary was cooperative. 

Fullam argues that the trial court lacked a factual basis to conclude that he 

refused the test because the testimony established that he was cooperative, and the 

second breath he attempted to give the machine did not register due to a machine error. 

Further, Fullam argues that Trooper Wright failed to testify to any of Fullam’s actions 

showing he was intentionally or deliberately attempting to avoid providing a sufficient 

sample. In Fullam’s view, Trooper Wright’s candid acknowledgement that he had a 
8

vague recollection of Fullam’s test bolsters the conclusion that he did not refuse the 

test. 

Moreover, Fullam argues that Trooper Wright’s testimony regarding the 

solid and dotted line on the Result Ticket is belied by the record because the legend on 

Result Ticket indicates that the solid line is the “Alcohol” level of one breath, and the 

dotted line is the “Flow Rate” of the same – meaning, they are not separate breaths but 

two different measurements of the same one. This is the inverse of Trooper Wright’s 

contention that each line represents a different breath sample.

As to the second issue, Fullam argues that the trial court erred in allowing 

Trooper Wright to testify in the form of his assumptions. Again, Fullam points to 

Trooper Wright’s testimony that he could not recall the specifics of Fullam’s test, but 

that he was testifying about his assumptions of what happened during Fullam’s test. 

Fullam argues that under Pennsylvania Rule of Evidence (Pa.R.E.) 602(a), a witness is 

forbidden to testify to a matter unless evidence is presented sufficient to support a 

finding that the witness has personal knowledge of the matter. Pa.R.E. 602(a). He also 

argues that under Rule 701 of the Pennsylvania Rules of Evidence, a lay witness’s

testimony to his or her opinions or inferences is limited to those opinions or inferences

“which are rationally based on the perception of the witness, helpful to a clear 

understanding of the witness’ testimony[,] or the determination of a fact in issue. . . .” 

Pa.R.E. 701. Fullam argues that at the time of Trooper Wright’s testimony, he had no 

present knowledge of the circumstances surrounding the breath tests, and was not 

qualified as an expert. Thus, Fullam argues, Trooper Wright’s testimony was limited 

under Pa.R.E. 701 to the inferences rationally related to his perceptions––none of 

which he could recall. As such, Fullam asserts that Trooper Wright’s testimony was 

inadmissible. 
9

In opposition, the Bureau argues that the trial court was correct in holding 

that Fullam refused to submit to a chemical test, and that the trial court did not abuse 

its discretion in allowing Trooper Wright to testify to his normal practice in 

administering breath tests. 

First, the Bureau maintains it met its burden to establish that Fullam 

refused the test. The Bureau argues that under Pennsylvania law, anything less than 

unqualified and unequivocal assent constitutes a refusal, and that officers need only 

provide a single opportunity to provide two sufficient breaths. Accordingly, the Bureau 

argues that the trial court’s conclusion that Fullam refused the test was supported by 

the evidence. 

The Bureau argues that Trooper Wright’s testimony regarding the Result 

Ticket was correct, and that the second dotted line represented the second breath, which 

was determined to be a refusal. Additionally, the Bureau argues that Trooper 

Giarrizzo’s statement that he signed the DL-26A form determining that the test was a 

refusal, supports the conclusion that Fullam refused the test.4 In sum, the Bureau 

argues that the trial court found Trooper Wright’s testimony that Fullam refused the 

test to be credible and persuasive and Fullam otherwise failed to present evidence that 

he was incapable of providing a sufficient sample on the second breath.

 As to the testimony of Trooper Wright, the Bureau maintains that he 

testified to his habit, which was admissible. The Bureau argues that Trooper Wright 

testified to what he would normally do in administering a breath test, and what his usual 

process and procedure was.

4 The Bureau also maintains that Trooper Giarrizzo’s testimony that “[he] was informed by 

[Trooper Wright] that it was a refusal due to the breath test sample. [Fullam] did not complete it as 

instructed,” is not hearsay. (Bureau’s Br. at 20.) This assertion is not challenged on appeal. However, 

consistent with note 6, infra, we need not discuss this issue.
10

Whether the Bureau Met its Burden to Prove Fullam Refused the Test

Where the Bureau seeks to sustain a license suspension under what is 

commonly known as the Implied Consent Law, Section 1547(b) of the Vehicle Code, 

75 Pa.C.S. §1547(b), the Bureau must establish that “the driver (1) was arrested for 

driving under the influence of alcohol, (2) was asked to submit to the breathalyzer 

test, (3) refused to do so, and (4) was specifically warned that a refusal would result in 

the suspension of his driver’s license.” Mondini v. Department of Transportation, 

Bureau of Driver Licensing, 875 A.2d 1192, 1194-95 (Pa. Cmwlth. 2005). As to these 

elements, Fullam only challenges element three, that the Bureau failed to prove that he 

refused the test. The Bureau “bears the burden of establishing a licensee failed to 

supply sufficient breath into the breathalyzer.” Reinhart, 954 A.2d at 766. “Any 

response from a licensee that is less than an unqualified, unequivocal assent to a 

chemical test constitutes a refusal. . . A licensee’s refusal need not be expressed in 

words; a licensee’s conduct may constitute a refusal to submit to testing.” Bomba, 28 

A.3d at 949 (citing Hudson v. Department of Transportation, Bureau of Driver 

Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003)). The question of whether a licensee 

has refused to submit to a chemical test is a “legal one, based on the facts found by the 

trial court.” Factor v. Department of Transportation, Bureau of Driver Licensing, 199 

A.3d 492, 496 (Pa. Cmwlth. 2018) (quoting Nardone v. Department of Transportation, 

Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015)). “The question of refusal 

by a licensee to consent to chemical testing ‘turn[s] on a consideration of whether the 

[licensee’s] overall conduct demonstrates an unwillingness to assent to an officer’s 

request for chemical testing.’” Factor, 199 A.3d at 496 (quoting Nardone, 130 A.3d 

at 749.)
11

Our decision in Bomba is instructive. In that case, the licensee was 

arrested for driving under the influence, and was taken to the police station to perform 

a chemical breath test. 28 A.3d at 948. The licensee attempted to give one breath 

sample, which was insufficient. Id. The officer administering the test explained that 

the licensee gave a series of short breaths rather than one continuous breath. Id. After 

the licensee was unable to provide a sufficient sample after two minutes, the machine 

prompted the officer to report whether a refusal occurred, and the officer indicated that 

one had. Id. The officer admitted that the licensee asked to retake the test but explained 

that she was only required to give one test. Id. 

The licensee testified that she tried as best as she could to provide a 

sufficient breath. Id. She explained, however, that she was unable to provide a 

sufficient sample because she was very upset by her arrest. Id. After she learned she 

was considered to have refused the test she immediately asked for another chance to 

do the test, which the officer refused. Id. The licensee appealed to the trial court, 

which sustained her appeal on the grounds that the licensee’s “unequivocal and 

unqualified consent to take the breath test, her subsequent inability to perform it 

properly, despite [attempts] to do so and her immediate request to retake the breath test, 

[did] not amount to a refusal under these circumstances.” Id. at 949. The Bureau 

appealed to this Court. Id. 

Before this Court the Bureau argued that it was not required to give a 

second test. Id. However, we explained there was no evidence that the licensee 

employed stall tactics to avoid taking the test or had to be cajoled by the officer to 

comply with testing. Id. at 950. To the contrary, this Court noted that the licensee was 

polite and cooperative, and requested another opportunity to provide an adequate 

sample. Id. at 951. Further, we noted that the licensee’s request to take another test 
12

was well within the two-hour window of time following an arrest during which a breath 

test can be administered. See 75 Pa.C.S. §3802(a)(2).5

In sum, we explained that 

[i]t is well established that anything other than an 

unqualified, unequivocal assent to a chemical test constitutes 

a refusal. What is less clear is how many chances a licensee 

must be given to consent or refuse. Refusal cases are highly 

fact-sensitive. The crucial, determinative factor we glean 

from the cases is whether [the Bureau’s] evidence shows 

that the licensee deliberately tried to delay or undermine 

the testing process. Such evidence was simply not present 

in this case. Rather, the evidence showed, and the trial court 

found, that Licensee made a good faith, but unsuccessful, 

attempt to provide a breath sample and immediately 

requested to attempt the test a second time. This conduct 

does not constitute a refusal. Stated otherwise, [the 

Bureau] is incorrect that in every case where the officer 

decides not to give the licensee a second chance at a 

breathalyzer, it has proven a refusal to consent to 

chemical testing.

Id. at 951 (emphasis added).

Here, when reviewing the highly fact-sensitive nature of this case, we 

conclude that the Bureau failed to put forth sufficient evidence as to the “determinative 

factor [of] whether [the Bureau’s] evidence show[ed] that [Fullam] deliberately tried 

5 This section establishes what is known as the “two-hour rule,” providing that:

[a]n 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).
13

to delay or undermine the testing process.” Id. Although the trial court determined the 

testimony of Troopers Wright and Giarrizzo was credible, the Troopers’ testimony is 

insufficient to establish that Fullam refused the test. First and foremost, Trooper 

Wright did not testify that Fullam was exhibiting any physical behaviors indicating that 

he was attempting to refuse the test. There was no testimony by Trooper Wright 

indicating that Fullam was merely puffing air into his cheeks, blowing weakly, or 

blowing out the side of his mouth. Trooper Wright did not testify that he had to cajole 

Fullam, or that he told him to blow harder or the breath would not register. He only 

testified that, based on his reading of the Result Ticket, Fullam’s breath was “not 

proper.” (N.T. at 21.) Yet, Trooper Wright testified that if the second breath was not 

good, it would have disabled the instrument. Nevertheless, he stopped the test before 

the DataMaster was disabled; therefore, the Result Ticket does not establish a refusal 

either.

To the contrary, Trooper Wright testified that he did not have “any 

independent recollection [that Fullam] demonstrated a demeanor or symptoms 

that he was intentionally trying not to give a proper breath sample.” (N.T. at 25, 

R.R. at 27a) (emphasis added). Trooper Wright could not definitively testify to 

Fullam’s behavior, and instead merely assumed that Fullam “must have not been giving 

a proper sample the second time.” (N.T. at 22, R.R. at 24a.) Trooper Wright explained 

that he only had a vague independent recollection of Fullam’s test, and that his 

testimony was limited to “what [he] would normally [do] and usually [does] in [his] 

process and procedure in cases like this.” (N.T. at 24, R.R. at 26a.) Moreover, the 

Bureau did not refresh Trooper Wright’s recollection as to any deliberately evasive 

behavior on Fullam’s part using the DL-26A form or other similar documents.
14

In many cases we have identified the kind of testimony establishing that a 

refusal occurred. In all these cases there was testimony by the administering officer

indicating that the licensee was exhibiting behaviors indicating that he was deliberately 

refusing the test. See Fernandez-Solano v. Department of Transportation, Bureau of 

Driver Licensing (Pa. Cmwlth., No. 1731 C.D. 2019, filed Aug. 21, 2020) (unreported)6

(concluding that a refusal occurred where the officer testified that the licensee “would 

begin to blow, and then he would stop”); Giannopoulos v. Department of 

Transportation, Bureau of Driver Licensing, 82 A.3d 1092, 1095 (Pa. Cmwlth. 2013)

(concluding that a refusal occurred where the test administrator testified that he told 

the licensee to “blow harder and steady,” but that there was a “stuttering of the breath 

or an inconsistent . . . flow of his breath”); Burkhart v. Department of Transportation,

Bureau of Driver Licensing, 934 A.2d 161, 163 (Pa. Cmwlth. 2007) (concluding that a 

refusal occurred where the administrator testified that the “[l]icensee stopped blowing 

at times and did not keep a tight seal around the mouthpiece”); Finney v. Department 

of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 422 (Pa. Cmwlth. 1998)

(concluding that a refusal occurred after eight attempts where the licensee failed to 

make a tight seal with his mouth around the breathalyzer tube, would cause his breath

to escape from the side of his mouth, or would puff air into his cheeks).

Additionally, in numerous cases where this kind of deliberate behavior 

was attested to, licensees have been given multiple chances to provide a sufficient 

sample or have been warned they were not blowing into the breathalyzer properly. See

Lucas v. Department of Transportation, Bureau of Driver Licensing, 854 A.2d 639, 

6 Fernandez-Solano is an unreported opinion. Under section 414(a) of this Court’s Internal 

Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code 

§69.414(a).
15

641 (Pa. Cmwlth. 2004) (offering licensee two attempts to complete a breath test, where 

licensee was allowing air to escape the sides of his mouth while attempting to produce 

a sample); Postgate v. Department of Transportation, Bureau of Driver Licensing, 781

A.2d 276, 278 (Pa. Cmwlth. 2001) (warning the licensee “several times that he was

[not] blowing. . . .”); Department of Transportation, Bureau of Driver Licensing v.

Pestock, 584 A.2d 1075, 1076 (Pa. Cmwlth. 1990) (providing the licensee with several 

opportunities to take the test and explaining the procedure each time after the licensee 

was allowing air to escape from the sides of his mouth). 

Simply, this kind of testimony was not offered here nor does the Result

Ticket from the DataMaster indicate that Fullam provided an “insufficient sample.” 

Reinhart, 954 A.2d at 767 (“In all of these cases, however, the fact-finder determined

the licensees deliberately failed to provide sufficient breath samples. The basis for

these determinations was either credited testimony of the administering officer or an

evidence ticket indicating the licensee provided an insufficient sample.”). Although 

the licensee in Bomba asked for another opportunity to take the test, that fact is not 

determinative in this matter due to the highly fact-sensitive nature of these cases. Here,

due to the lack of testimony that Fullam was deliberately attempting to avoid giving an 

adequate sample, it would have been appropriate for Trooper Wright to ask Fullam to 

give another test. This is bolstered by the fact that there was no testimony that Fullam

was close to being outside of the two-hour window specified in Section 3802(a)(2) of 

the Vehicle Code, 75 Pa.C.S. §3802(a)(2), for obtaining a sample. This Court has 

stated that there is no such rule that “one, and only one unsuccessful attempt to take the 

test in all cases can be considered a refusal by the police and [the Bureau].” Department 

of Transportation, Bureau of Driver Licensing v. Harper, 544 A.2d 80, 82 (Pa. 
16

Cmwlth. 1988).

7

 Based on the record before us, Fullam should have been given another 

opportunity to complete the test, and we cannot conclude that he otherwise refused the 

test.

________________________________

PATRICIA A. McCULLOUGH, Judge

7 Due to our disposition, we need not answer the question of whether Trooper Wright’s 

testimony as to his assumptions was admissible under the Pennsylvania Rules of Evidence. As we 

have concluded, the testimony of Trooper Wright—admissible or not—was insufficient to carry the 

Bureau’s burden.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Fullam, :

Appellant :

: No. 124 C.D. 2020

v. :

:

Commonwealth of Pennsylvania :

Department of Transportation, :

Bureau of Driver Licensing :

ORDER

AND NOW, this 30th day of March, 2021, the December 16, 2019 

Order of the Court of Common Pleas of Montgomery County is reversed.

________________________________

PATRICIA A. McCULLOUGH, Judge