IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jasmine Albright : : v. : : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing , : No. 124 C .D. 201 9

Appellant : Submitted: August 9 , 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER , Judge

HONORABLE P. KEVIN BROBSON , Judge HONORABLE CHRISTINE FIZZANO CANNON , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: November 7, 2019

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the January 17, 2019 order of the Court of Common Pleas of Allegheny County (trial court), which sustained the statutory appeal of Jasmine Albright (Licensee) from a 12

- month suspe nsion of her operating privilege by DOT pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(i), 1 commonly referred to as the Implied Consent Law , as a

1 Section 1547(b)(1)(i) provides as follows:
§ 1547. Chemical testing to determine amount of alcohol or controlled substance

. . .2

result of Licensee’s refusal to submit to chemical testing upon her arrest for driving under the influence of alcohol or a controlled substance (DUI)

. 2 After review, we

reverse. DOT informed Licensee that her operating privilege would be suspended for 12 months as a result of her refusal to submit to a chemical test of her
breath on October 28, 2017. Licensee appealed to the trial court pursuant to Section 1550(a) of the Vehicle Code, 75 Pa.C.S. § 1550(a), 3 and a hearing was held on January 17, 2019, at which Licensee appeared pro se

. See Notes of Testimony, January 17, 2019 (N.T .) ; Reproduced Record (R.R. ) at 8a

- 44 a.

Pittsburg h Police Officer Keith Edmonds testified at the hearing. See
N.T. at 4

- 15; R.R. at 11a

- 22a. Officer Edmonds testified that he was dispatched by
9

- 1

- 1 services to the scene of an automobile crash at 1:17 a .m. on the morning of

(b) Civil penalties for refusal.

— (1) If any person placed under arrest for a violation of section 3802 is re quested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (i i), for a period of 12 months.

75 Pa. C.S. § 1547(b ) (1)(i).

2 75 Pa.C.S. § 3802.

3 Section 1550(a) of the Vehicle Code provides:
Any person

. . . whose operating privilege has been

. . . suspended . . . by the department shall have the right to appeal to the court vested with jurisdiction of such appeals

. . . . 75 Pa.C.S. § 1550(a).3

October 28, 2017. N.T. at 5; R.R. at 12a. Upon arriving at the scene, Officer
Edmonds observed a vehicle crashed into a wooded area. N.T. at 7 ; R.R. at 14 a. Officer Edmonds explained that, when he approached the vehicle, he observ ed Licensee, dressed in a bra and no shirt or shoes, sitting alone in the driver’s seat, revving the vehicle’s engine. N.T. at 7

- 8; R.R. at 14a

- 15a. He also observed an open container of alcohol in the cup holder of the vehicle’s center console. N.T. at 11; R.R. at 18a.

Officer Edmonds had to help Licensee alight from her vehicle. N.T. at 8; R.R. at 15a. Once Licensee was outside her vehicle, Officer Edmonds noticed a strong odor of alcohol coming from her person, that she had bloodshot eyes, that h er speech was slurred, and that her balance was off. N.T. at 8

- 9; R.R. at 15a

- 16a. Licensee had no visible cuts, bumps, or bruises, and she declined medical attention. N.T. at 9; R.R. at 16a. Officer Edmonds arrested Licensee for suspicion of DUI.
N.T . at 10; R.R. at 17a.

Following the arrest, Officer Edmonds transported Licensee to the police station. N.T. at 11

- 12; R.R. at 18a

- 19a. He explained to Licensee that he was transporting her to the sta tion where she would undergo a b reathalyzer test. N.T. at 12; R.R. at 19a. Once at the station, Officer Edmonds handed Licensee over to Officer Glenn Aldridge for chemical testing. N.T. at 13; R.R. at 20a.

Officer Aldridge also testified at the hearing. See N.T. at 16

- 27; R.R.
at 23a

- 34a. Officer Ald ridge 4 explained that on the evening in question, the DataMaster DMT breathalyzer machine was functioning, calibrated, and certified

4 Officer Aldridge has been a Pittsburgh Police O fficer since 1989 and has been certified to administer blood alcohol co ncentration breath testing with the DataMaster DMT instrument since approximately 2003. N.T. at 16

- 17; R.R. at 23a

- 24a.4

for accuracy in accordance with DOT regulations. N.T. at 17 ; R.R. at 24 a. Officer Aldridge explained that he asked Licens ee whether she would submit to a chemical test of her breath and that she originally refused. 5 N.T. at 19; R.R. at 26a. After her initial refusal, Officer Aldridge read Licensee the DL

- 26A form verbatim, in its

ent irety. N.T. at 20; R.R. at 27a ; see als o DL

- 26A Form, R.R. at 42a. The DL

- 26A form Officer Aldridge read to Licensee states as follows:

It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or a controlled substan ce in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of breath.
3. If you refuse to submit to the breath test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 mon ths. In addition, if you refuse to submit to the breath test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then because of your refusal, you will be subject to more severe penalties set forth in Section 3802(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail

5 Officer Aldridge explained that, after a brief conversation with Licensee during which he confirmed her information, he conducted pa perwork while waiting out a DOT

- regulated 20

- minute waiting period. N.T. at 18

- 19; R.R. at 25a

- 26a. Officer Aldridge testified that, during the course of the 20

- minute observation period, he did not observe Licensee eat, drink, or regurgitate any mate ria l. N.T. at 19; R.R. at 26a.5 and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.00.
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else afte r being provided these warnings or you remain silent when asked to submit to a breath test, you will have refused the test.

DL

- 26A form, Hearing Exhibit #1, R.R. at 42a. Officer Aldridge testified that he explained to Licensee that signing the form was not an admission of guilt, but instead a statement that she understood her rights, and Licensee signed the form. N.T. at 20; R.R. at 27a

.

Officer Aldridge further testified that, after signing the DL

- 26A form, Licensee orally agreed to submit to chemica l breath testing. N.T. at 21

- 22; R.R. at
28a

- 29a. Therefore, Officer Aldridge provided Licensee with information and instructions regarding the test. N.T. at 22; R.R. at 29a. Officer Aldridge instructed
Licensee t hat she would have to blow into the mac hine until he told her to stop, and that she would be required to successfully complete two valid breath samples in
succession to complete the testing . N.T. at 22; R.R. at 29a.

On her first try, Officer Aldridge explained, Li censee submitted a valid

sam ple . N.T. at 22; R.R. at 29a. Officer Aldridge then in structed her to submit a
second valid sample, but she sucked her breath in backward, as opposed to blowing, which recorded a “suck back” error and aborted the test. N.T. at 23; R.R. at 30a.
Thereaft er, Officer Aldridge offered Licensee the opportunity to conduct a second test, to which Licensee agreed. N.T. at 23; R.R. at 30a. Again, Officer Aldridge instructed Licensee to blow, not suck back, and that sucking back a second time
would cause the tes t to abort and be deemed a refusal. N.T. at 23; R.R. at 30a.6

Despite this instruction and warning, Licensee again sucked back instead of blowing, which caused the breathalyzer machine to shut down. N.T. at 24; R.R. at 31a. Officer Aldridge deemed this a refusal. N.T. at 24; R.R. at 31a.

Officer Aldridge explained that at no time did Licensee inform him of any breathing issues or difficulties that would have adversely affected her ability to provide two valid breath samples, and that Licensee did not g asp or wheeze at any time during the process. N.T. at 25; R.R. at 33a. He further testified that Licensee
never informed him that she did not understand the breath testing requirements,

never as ked him to re

- read the instructions, and never asked for fur ther explanations of the testing instructions. N.T. at 2 6 ; R.R. at 34 a.

DOT then rested. The trial judge then explained that this case was the third case to have come before him involving what he regards as a deficient chemical breath test warning because the DL

- 26A form did not expressly state that two valid samples were required to complete the chemical te sting. N.T. at 30

- 33 ; R.R. at 37 a

40a

. The trial court noted that, since the first of these cases , which resulted in the trial court being overturned by this Court, as discussed infra , 6 DOT has changed the
DL

- 26 form to clearly reflect that two valid sam ples are required to complete breath testing. N.T. at 30

- 31 ; R.R. at 37 a

- 38a

. The trial court then sustained Licensee’s appeal. N.T. at 32

- 33 ; R.R. at 39a

- 40 a. DOT timely appealed to this Court.

On appeal, 7 DOT argues that the trial court abused its d iscretion and erred as a matter of law by finding that the D L

- 26A form was deficient because it

6 See Flaherty v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 635 C.D. 2017, filed May 11, 2018).

7 “ Our standard of review is limited to determining whether common pleas committed an error of law, whether common pleas abused its discretion, or whether the findings of fact are7

did not advise Licensee that she had to successfully give two valid breath samples to satisfactorily complete a breath test. See DOT’s Brief at 14

- 21. We agre e.

This Court decided this exact issue on nearly identical facts in Flaherty

v. Department of Transportation , Bureau of Driver Licensing (Pa. Cmwlth., No. 635 C.D. 2017, filed May 11, 2018) , over which , as previously noted, the same trial court and judge also presided at the Court of Common Pleas level

. Flaherty involved a statutory appeal of an 18

- month license suspension for refusal to submit to chemical breath testing following an arrest for suspected DUI

. Flaherty , slip op. at 2. In Flaherty , a fter arresting the licensee on suspicion of DUI after a single car crash,

p olice read the exact DL

- 26A form to the licensee as Officer Aldridge read to
Licensee in the instant matter. Id. at 3

- 5. The t estimony also established that the police officer told th e licensee before the testing began that two valid breath samples would be required to complete the chemical testing. Id. at 4. The licensee then provided one valid breath sample above the legal limit before failing to submit a
second v alid sample. Id. at 5. The p olice deemed the attempt a refusal and DOT suspended the licensee’s license. Id. However, the trial court concluded that the
fact that the DL

- 26A form read to the licensee did not include express language explaining that a successful chemical test requires two valid breath tests, the licensee had not been sufficiently warned that her failure to take two breath tests would
constitute a refusal and sustained the licensee’s license suspension appeal. Id. at 6.

DOT appealed, arguing that the trial court abused its discretion and
erred as a matter of law when it concluded that the DL

- 26A form had to advise licensees that they would be required to submit to two breath tests. Flaherty , slip

supported by substantial evidence .” Garlick v. Dep’t of Transp. , Bureau of Driver Licensing , 176 A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018)

.8

op. at 6

- 8. This Court reversed and r einstated the licensee’s license suspension

. Id.
at 15. In addressing the merits, this Court explained as follows:

Section 1547(a) of the Vehicle Code provides, in relevant part:
(a) General Rule.

-- Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substanc e if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle in violation of section . . . 3802 (relating to driving under influence of alcohol or controlled s ubstance) . . . .
75 Pa. C.S. § 1547(a) (emphasis added). If a licensee refuses to submit to a request for chemical testing, the testing shall not be conducted, but DOT shall suspend the operating privilege of the licensee, in this case, for 18 months. 75 Pa. C.S. § 1547(b). Section 1547(b)(2)(i) of the Vehicle Code requires an officer to inform the licensee, as relevant here, that her “operating privilege will be suspended upon refusal to submit to chemical testing .” 75 Pa. C.S. § 1547(b)(2)(i) (emp hasis added). Section 1547 of the Vehicle Code does not require that two breath tests be administered, nor require an officer to inform a licensee that two breath tests will be required. DOT, however, was directed to promulgate Section 77.24 of DOT’s reg ulations pursuant to “the legislative mandate of 75 Pa. C.S. § 1547(c)(1),” Bush v. Commonwealth , 535 A.2d 754, 755 (Pa. Cmwlth. 1988), which provides, in relevant part, that “[c]hemical tests of breath shall be performed on devices approved by the Depart ment of Health using procedures prescribed jointly by regulations of the Departments of Health and9 Transportation,” 75 Pa. C.S. § 1547(c)(1). Section 77.24(b) of DOT’s regulations in turn, sets forth that “[t]he procedures for alcohol breath testing shall include, at a minimum: (1) Two consecutive actual breath tests, without a required waiting period between the two tests.” 67 Pa. Code § 77.24(b). DOT’s regulations do not require an officer to inform a licensee that she will have to submit to two breat h tests, and DOT Form DL

- 26A does not contain this information.
In order to suspend Licensee’s operating privilege for refusing to submit to a chemical test of her breath, DOT had to prove that:
(1) Licensee was arrested for violating Section 3802 of the Vehicle Code by a police officer who had “reasonable grounds to believe” that Licensee was operating or was in actual physical control of the movement of a vehicle while in violation of Section 3802 (i.e., while driving under the influence); (2) Licens ee was asked to submit to a chemical test; (3) Licensee refused to do so; and (4) Licensee was specifically warned that a refusal would result in the suspension of [her] operating privileges and would result in enhanced penalties if [s]he was later convict ed of violating Section 3802(a)(1).
Martinovic v. Dep’t of Transp., Bureau of Driver Licensing , 881 A.2d 30, 34 (Pa. Cmwlth. 2005). The only warnings required to be given to a licensee are those contained in Section 1547(b)(2) of the Vehicle Code and b y our Supreme Court in [ Dep’t of Transp., Bureau of Traffic Safety v. ] O’Connell [ 555 A.2d 873, 878 ( Pa. 1989) ]. Negovan v. Dep’t of Transp., Bureau of Driver Licensing , 172 A.3d 733, 736 (Pa. Cmwlth. 2017) (stating that “there is no constitutional requir ement for a police officer to provide any implied consent warnings to a driver arrested for DUI”). Section 1547(b)(2) of the Vehicle Code does not require that the implied consent warnings contain any specific wording. Yourick v. Dep’t of Transp.,10 Bureau of Driver Licensing , 965 A.2d 341, 345 (Pa. Cmwlth. 2009). Rather, the warnings “must merely ‘inform’ a licensee that his/her ‘operating privilege will be suspended upon refusal to submit to chemical testing.’” Id. (quoting 75 Pa. C.S. § 1547(b)(2)(i)). Once DOT satisfies its burden of proof, the burden shifts to the licensee to prove that she was incapable of making a knowing and conscious refusal or that she was physically unable to take the test. Kollar v. Dep’t of Transp., Bureau of Driver Licensin g , 7 A.3d 336, 339 (Pa. Cmwlth. 2010).

Flaherty , slip op. at 10

- 12 (emphasis in original; footnote omitted)

.

Additionally, the Flaherty Court noted precedent dating back over 30 years that held that “the applicable statutes and regulations reveal no requirement that an officer warn a licensee, before testing begins , that two breath tests are required by [DOT’s] regulations. Section 1547(b)(2) requires only that an officer warn that operating pr ivileges ‘will be suspended upon refusal to submit to chemical testing.’” Flaherty , slip op. at 12

- 13 (quoting Dep’t of Transp., Bureau of Driver Licensing v. Viglione , 537 A.2d 375, 377 (Pa. Cmwlth. 1988)) (emphasis in original). The Court further expla ined that this precedent has established that no meaningful distinction exists between “a warning that two breath tests are required before any test is administered, as the trial court mandated, and the officer’s clear warning that a second test was requir ed following the administration of the first
test.” Id. at 13 (quoting Viglione , 537 A.2d at 377).

The Flaherty Court then determined that the record established that DOT met its prima facie burden of proof to show that the licensee refused to submit

to chemical testing after being specifically warned that such a refusal would result in a suspension of her operating privileges where: (1) there was no question the licensee was arrested for DUI and asked to submit to chemical testing; (2) the11

licensee did not challenge, and the trial court did not discredit, the police testimony that licensee was orally informed that she would need to submit to two breath tests; (3) the licensee provided an initial breath test but failed to provide a second sufficient
breat h sample during the second test, which constituted a per se refusal under the
law. See F laherty , slip op. at 13

- 14. The Flaherty Court noted that, because DOT had met its burden, the burden shifted to the l icensee to show that her refusal was not knowing and conscious or that she was physically unable to take the test

. Id. at 14. The Flaherty Court then reversed the trial court because the licensee failed to carry this burden

. Id

.

Finally, in reversing the trial court, this Court expressly stated, “ [w]e cannot agree with [the l]icensee’s claim that because DOT Form DL

- 26A refers to

“ a chemical test” and “ the breath test,” and not two breath tests, tha t [the licensee]
was somehow mis led into consenting to testing.” Flaherty , slip op. at 14 (emphasis in original)

. The facts and arguments presented in the instant matter are nearly indistinguishable to those presented and decided by this Court in Flaherty . Like Flaherty , this case involves a one

- car accident, after which the police read Lice nsee the DL

- 26A form verbatim while also verbally explaining that a successful breath test would require two valid breath samples. As in Flaherty , Licensee then provided one valid breath test before causing an error in the testing instrument that police

c onstrued as a refusal. The trial court then sustained the instant appeal based o n the argument that the DL

- 26A f orm provided a deficient warning because it seemingly
referred to a single chemical test ( “ a chemical test” and “ the breath test” ), as opposed to stating that a successful chemical test required Licensee to provide two valid breath samples

. See Trial Court Opinion at 5

- 6. This is the exact argument this12

Court previously examined and expressly rejected in Flaherty

. See Flaherty , slip op. at 14. DOT here in makes the same arguments it forwarded in Flaherty

. Therefore, given the identical nature of the facts and arguments presently before us,
and base d on the long standing law cited and the reasons stated in Flaherty , we find
that the trial court erred in sustaining Licensee’s appeal.

Accordingly, we reverse the trial court’s order and reinstate DOT’s 12

- month suspension of Licensee’s operating privilege.

__________________________________ CHRISTINE F IZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jasmine Albright : : v. : : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, : No. 124 C.D. 2019

Appellant :

O R D E R

AND NOW, this 7th day of November , 201 9 , the January 17, 2019
order of the Court of Common Pleas of Allegheny County is REVERSED, and the
12

- month suspension of Jasmine Albright’s operating privilege is REINSTATED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge