decided: March 12, 1976.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY
RAYMOND DAVID MEDALIS, APPELLANT
Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Raymond David Medalis, No. S-1184 November Term, 1974.
W. J. Krencewicz, for appellant.
John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Kramer, Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
[ 24 Pa. Commw. Page 13]
Although the facts which give rise to this appeal can be distinguished from those dealt with in the case of Bureau of Traffic Safety v. Kelly, 18 Pa. Commonwealth Ct. 490, 335 A.2d 882 (1975), our holding in Kelly controls here. In Kelly, we held that a person possessing a license to operate a motor vehicle who refuses to submit to a properly requested breathalyzer test*fn1 does not sustain
[ 24 Pa. Commw. Page 14]
his burden of proving a physical inability to submit when he produces no medical or other competent evidence of physical disability or incapacity.*fn2
On June 28, 1974, Raymond D. Medalis (Medalis) was involved in an automobile accident which was investigated by Trooper John E. O'Boyle of the Pennsylvania State Police. As a consequence of the investigation, Medalis was (1) placed under arrest, (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor, and (3) requested to submit to a breathalyzer test. See Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). Medalis orally agreed to submit to a breathalyzer test but then refused to supply sufficient breath for the test to be conducted. The Court of Common Pleas of Schuylkill County concluded that Medalis' lack of effort to supply the necessary breath sample amounted to a refusal to take the test and created a legal basis for the Secretary of Transportation
[ 24 Pa. Commw. Page 15]
to suspend Medalis' operator's license for a period of six months. This appeal followed and we affirm.
Since Medalis' behavior in failing to provide the necessary breath sample was tantamount to a refusal to submit to a breathalyzer test, it became incumbent upon him to establish that he was physically unable to submit to such a test. The record discloses that, in addition to his own testimony on this crucial issue which was completely contrary to Trooper O'Boyle's, Medalis placed in evidence a letter from Dr. Esquivel stating that he saw the patient professionally on July 2 and 3, 1974 and that his examinations on those dates satisfied him that a sprain of Medalis' left shoulder was compatible with his complaint of pain in his left shoulder. The medical evidence was totally insufficient to meet Medalis' burden on the issue of his physical inability to supply the necessary breath sample for a breathalyzer test. The lower court's acceptance of the trooper's testimony rather than Medalis', concerning what transpired relative to the attempt to obtain the needed breath sample, was within its prerogative and on this record not error.*fn3 See Commonwealth v. Passarella, 7 Pa. Commonwealth Ct. 584, 300 A.2d 844 (1973).
Here, as in Kelly, the licensee did not attempt to complete the breathalyzer test and did not offer medical evidence to support his suggested physical incapacity to submit to the test. Consequently, we must likewise hold in this appeal that the licensee's evidence was insufficient to sustain his burden of proving physical incapacity to supply the necessary breath sample. Thus, Medalis is subject to the suspension imposed by the Secretary of
[ 24 Pa. Commw. Page 16]
Transportation in accord with the provisions of Section 624.1 of The Vehicle Code.
Medalis also contends that Trooper O'Boyle was not qualified to administer a breathalyzer test. However, Medalis did not make this contention prior to his refusal to take the test and consequently cannot raise it here where the issue is the validity of a suspension based upon a refusal to supply sufficient breath for a breathalyzer test to be conducted. Accordingly, this contention need not be reached in this appeal.