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06/10/97 ANNE MARIE VALANIA v. COMMONWEALTH

COMMONWEALTH COURT OF PENNSYLVANIA


June 10, 1997

ANNE MARIE VALANIA, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

Appealed From No. 6220-C of 1994. Common Pleas Court of the County of Luzerne. Judge PODCASY.

Before: Honorable Rochelle S. Friedman, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Judge Leadbetter Dissents. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: June 10, 1997

Ann Marie Valania (Licensee) appeals from an order of the Court of Common Pleas of Luzerne County (trial court) dismissing Licensee's appeal from a one-year suspension of her operating privileges imposed by the Pennsylvania Department of Transportation (DOT) pursuant to section 1547 of the Vehicle Code. *fn1 We reverse.

The trial court held a hearing on Licensee's statutory appeal. At the hearing, DOT's sole witness was Officer Athanios Mililios, a police officer for the City of Allentown. Based on the officer's testimony, the trial court found that, on September 17, 1994, Officer Mililios was on patrol and observed Licensee operating a vehicle in an erratic fashion; in fact, the vehicle almost struck him. The officer stopped the vehicle, spoke with Licensee and conducted a field test, which Licensee failed. Officer Mililios then arrested Licensee and transported her to police headquarters for chemical testing.

At headquarters, Licensee was placed in the custody of Officer Paul Wargo, the intoxilyzer operator. DOT presented a videotape of Officer Wargo testing Licensee. Officer Mililios testified that Licensee submitted to the chemical test prior to the videotaping but, in performing the test, Licensee provided "inconsistent breaths." *fn2

Based on the evidence presented, *fn3 the trial court concluded that Licensee refused to submit to chemical testing because she supplied "insufficient" breath samples. Thus, the trial court dismissed Licensee's appeal.

On appeal to this court, *fn4 Licensee argues that the trial court erred in dismissing her appeal based on its finding that Licensee provided "insufficient" breath samples. We agree. *fn5

In order to establish that a licensee provided insufficient breath samples, DOT must present as evidence either the testimony of the administering officer or the printout form from a properly calibrated breathalyzer machine indicating a "deficient sample." Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Commw. 1996); Department of Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa. Commw. 185, 624 A.2d 792 (Pa. Commw. 1993). Here, the administering officer did not testify. Moreover, the printout form from the breathalyzer does not indicate that Licensee provided a "deficient sample." *fn6 (DOT's exh. 2.) Because there is no testimony or documentary evidence that Licensee supplied "insufficient" breath samples, which would constitute a refusal, we conclude that the trial court erred in basing its decision on such a finding. *fn7

DOT argues that this court should nevertheless affirm the trial court's opinion because Licensee's "inconsistent breaths" caused the test results to vary by more than 0.020%, which invalidates the test, and because Licensee refused to submit to further testing. First, we are not certain that Officer Mililios testified to "inconsistent breaths" rather than "inconsistent tests," as noted above. Moreover, DOT has presented no expert testimony to show that "inconsistent breaths" *fn8 cause an intoxilyzer device to produce test results which differ by more than 0.020%. In addition, DOT has cited no case law, nor have we found any, to support this contention. Thus, we decline to affirm the trial court on this basis.

Because there is no evidence here that either of the officers invalidated the test, took the intoxilyzer out of service and then asked Licensee to submit to another chemical test on a different intoxilyzer, we reverse.

ROCHELLE S. FRIEDMAN, JUDGE

Judge Leadbetter Dissents.

ORDER

AND NOW, this 10th day of June, 1997, the order of the Court of Common Pleas of Luzerne County, dated May 30, 1996, is reversed.


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