Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Commonwealth of Pennsylvania v. Alex E. Harper, Jr., No. 3581.
Donald H. Poorman, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, John L. Heaton, Chief Counsel, for appellant.
Robert N. Dellavella, for appellee.
Judges Doyle and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Judge Doyle concurs in the result only.
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The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Court of Common Pleas of Philadelphia County which sustained an appeal of Alex E. Harper and reversed a one year suspension of Harper's operating privileges imposed by DOT pursuant to 75 Pa. C. S. § 1547.
Harper was arrested and charged with driving while intoxicated. The arresting officer took Harper to the Police Department Administration Building in order to
[ 117 Pa. Commw. Page 318]
give him a breathalyzer test. The breathalyzer operator testified that Harper put the mouthpiece of the testing device in his mouth but simply sat there, refusing to blow. The operator also testified that he informed Harper of the consequences of refusing the test and told him on three or four occasions to blow into the machine. Harper refused to do so; the officer considered Harper's actions a refusal.
Harper, on the other hand, testified that the officer told him to blow into the machine until he was told to stop. Harper said he began to blow into the machine but ran out of breath before the testing officer told him to stop. According to Harper, the officer then informed him that he had failed the test. Harper was afforded no other opportunities to supply sufficient breath to register a reading on the machine. Harper also testified that he was not informed of the consequences of a refusal.
Faced with this conflicting testimony, the trial court specifically found Harper's testimony credible and held that he had never refused to take the test. The court therefore sustained Harper's appeal and reversed DOT's suspension of Harper's license. DOT has appealed the trial court's order to this Court.
DOT argues that the trial court committed an error of law in considering the testimony of Harper concerning his attempt to provide sufficient breath. DOT relies upon the line of cases, of which Department of Transportation, Bureau of Driver Licensing v. Norton, 103 Pa. Commonwealth Ct. 78, 519 A.2d 1085 (1987), is illustrative. In those cases, we have held that when a driver claims that he or she was incapable of either taking the test or consciously refusing to do so, that driver must present medical testimony to support the assertion of ...