IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jasmine Albright :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 124 C.D. 2019

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 suspension 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-44a.

Pittsburgh 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 requested 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 (ii), 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 14a. 

Officer Edmonds explained that, when he approached the vehicle, he observed 

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 her 

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 station where she would undergo a breathalyzer 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 Aldridge4 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 Officer since 1989 and has been certified 

to administer blood alcohol concentration 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 24a. Officer 

Aldridge explained that he asked Licensee 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 

entirety. N.T. at 20; R.R. at 27a; see also 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 substance 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 months. 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 paperwork 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 

material. 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 after 

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 chemical 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 that she would have to blow into the machine 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, Licensee submitted a valid 

sample. N.T. at 22; R.R. at 29a. Officer Aldridge then instructed 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. 

Thereafter, 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 test 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 gasp 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 asked him to re-read the instructions, and never asked for further explanations 

of the testing instructions. N.T. at 26; R.R. at 34a.

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 testing. N.T. at 30-33; R.R. at 37a40a. 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 samples are required to complete breath 

testing. N.T. at 30-31; R.R. at 37a-38a. The trial court then sustained Licensee’s 

appeal. N.T. at 32-33; R.R. at 39a-40a. DOT timely appealed to this Court.

On appeal,7 DOT argues that the trial court abused its discretion and 

erred as a matter of law by finding that the DL-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 are 
7

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 agree.

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, after arresting the licensee on suspicion of DUI after a single car crash, 

police read the exact DL-26A form to the licensee as Officer Aldridge read to 

Licensee in the instant matter. Id. at 3-5. The testimony also established that the 

police officer told the 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 valid sample. Id. at 5. The police 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 reinstated 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 substance 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 substance) . . . .

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) (emphasis 

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 regulations 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 Department of Health using procedures prescribed 

jointly by regulations of the Departments of Health and 
9

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 breath 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) 

Licensee 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 

convicted 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 

by 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 requirement 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 Licensing, 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 privileges ‘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 explained 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 required 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) the 
11

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 

breath sample during the second test, which constituted a per se refusal under the 

law. See Flaherty, slip op. at 13-14. The Flaherty Court noted that, because DOT 

had met its burden, the burden shifted to the licensee 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, that [the licensee] 

was somehow misled 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 Licensee 

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 

construed as a refusal. The trial court then sustained the instant appeal based on the 

argument that the DL-26A form 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 this 
12

Court previously examined and expressly rejected in Flaherty. See Flaherty, slip 

op. at 14. DOT herein makes the same arguments it forwarded in Flaherty. 

Therefore, given the identical nature of the facts and arguments presently before us, 

and based on the longstanding 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 FIZZANO CANNON, Judge
IN 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, 2019, 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