Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Helen Jones v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, No. 2332 September Term, 1976.
John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Michael E. Farr, with him Smith, Chamberlain & Farr, P.C., for appellee.
Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle. Judge MacPhail dissents.
[ 38 Pa. Commw. Page 402]
This is an appeal by the Department of Transportation (Department) from the order of the Court of Common Pleas of Dauphin County, dated June 16, 1977, reversing the Department's suspension of the motor vehicle operator's license of Helen Jones (Appellee) pursuant to Section 624.1 of the Vehicle Code,*fn1 for refusing to submit to a breathalyzer test.
This Court has frequently enunciated the rule that in order to sustain a suspension under Section 624.1(a), the Department must prove that a defendant was placed under arrest, was charged with the operation of a motor vehicle while under the influence of intoxicating liquor, was requested to submit to a breathalyzer test, and refused to do so. Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). In the instant case, the parties stipulated at the hearing before the court below that Appellee was arrested by a State Trooper; that he had reasonable grounds to believe she was driving under the influence of alcohol and subsequently charged her with violation of Section 1037 of the Vehicle Code, 75 P.S. § 1037; and that he requested her to submit to the breathalyzer test. The sole question presented to the lower court, therefore, was whether Appellee had in fact refused to submit to the breathalyzer test.
The facts surrounding the disputed "refusal" can be stated compendiously. The Department's witness testified as follows: Appellee agreed to submit to any test which was requested of her. She thereupon attempted to blow into the tube attached to the machine. Although she supplied "healthy blasts," the machine
[ 38 Pa. Commw. Page 403]
did not register a reading since Appellee apparently was blowing air out of the sides of her mouth. Despite repeated attempts to blow air into the machine, including at least one attempt to blow into the tube after the mouthpiece had been removed, she continued to blow air out of the sides of her mouth. This inability to master the correct technique persisted even though the examiner instructed Appellee several times on the proper method. The most success achieved by Appellee was to exhale enough air so as to cause the formation of some condensation in the upper portion of the tube. As a consequence, the testing was abandoned. Appellee, on the other hand, testified that she made a good faith attempt to blow into the breathalyzer machine.
Our scope of review of a lower court's reversal of a license suspension pursuant to Section 624.1(a) is limited to whether its findings were supported by competent evidence; errors of law were committed; or the decision constituted a manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. Shultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976). In this regard we note that the refusal to submit to a breathalyzer test is a factual, not a legal, determination. Commonwealth v. Miles, supra. While the court below did not set forth detailed and separate findings of fact, it did state:
"Clearly, a simple declaration of inability to perform the test, absent supportive medical proof, will not justify a refusal. Bureau of Traffic Safety v. Kelly, 18 Pa. Comm. Ct. 490, 495, 335 A.2d 882, 885 (1975). Acquiescing to the test, and then failing to provide sufficient breath, also will not justify a refusal absent medical ...