The opinion of the court was delivered by: Judge McGINLEY
Submitted: December 4, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge.
James Henry Gregro (Gregro) appeals from the order of the Court of Common Pleas of Berks County (trial court) that denied his appeal from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code (Code), 75 Pa.C.S. §1547(b)(1)(i).*fn1
By official notice dated February 9, 2009, the Department of Transportation (DOT) informed Gregro that his operating privilege was to be suspended for one year, effective March 16, 2009, as a result of his refusal to submit to chemical testing on January 21, 2009. Gregro appealed to the trial court.
At a de novo hearing, Officer Michael Wiley (Officer Wiley) of the Bern Township Police Department testified that while on routine patrol on January 21, 2009, in the vicinity of West Pine Street and West Main Street he observed a black Ford Mustang pass his location. Officer Wiley believed the vehicle was traveling faster than the posted forty mile per hour speed limit. Officer Wiley followed the Mustang. It turned on to White Oak Lane which was posted at a speed limit of thirty-five miles per hour. Officer Wiley used his VASCAR speed timing device and clocked the Mustang at fifty-eight miles per hour. Shortly thereafter, Officer Wiley put on his emergency lights and siren and signaled the vehicle to pull over. Officer Wiley approached the vehicle and asked Gregro, the driver, to produce his driver's license, registration, and proof of insurance. Notes of Testimony, May 27, 2009, (N.T.) at 6-9; Reproduced Record (R.R.) at 19a-20a.
As he spoke to Gregro, Officer Wiley noticed that Gregro's "speech was slurred and that his eyes were glassy in appearance." N.T. at 9; R.R. at 20a. Gregro failed three field sobriety tests. Officer Wiley administered a preliminary breath test to Gregro who registered 0.11 percent. Officer Wiley placed Gregro under arrest and transported him to St. Joseph's Hospital to request a blood alcohol sample. N.T. at 10-11; R.R. at 20a. Officer Wiley read Gregro PennDOT Form DL-26, which contained the Implied Consent and O'Connell Warnings. Officer Wiley reported that Gregro asked to read the form himself and then requested an attorney. When Officer Wiley pointed to the section on the form which stated that he had no right to an attorney prior to deciding whether to submit to testing, Gregro told Officer Wiley that he refused to take the test. N.T. at 12-14; R.R. at 20a-21a. On cross-examination, Officer Wiley described Gregro's preliminary breath test as "an extremely weak breath. It took him some prodding to blow into it." N.T. at 17; R.R. at 22a.
Gregro did not testify. His counsel introduced into evidence a copy of the Pennsylvania Bulletin dated January 3, 2009, which listed machines that were approved for use for preliminary breath tests and evidentiary breath tests or both.
By order dated June 5, 2009, the trial court denied the appeal and reinstated the license suspension. The trial court determined:
[T]he statute provides that more than one chemical test may be given to a driver. It is uncontroverted that Licensee [Gregro] refused to submit to a blood test. Therefore, he violated § 1547 by refusing to take a blood test. Under the statute it is immaterial that he submitted to an earlier breath test; a driver is deemed to give consent to one or more chemical tests. In the case sub judice the officer requested two tests, and Licensee [Gregro] refused one of them. Even assuming arguendo that a driver cannot be forced to submit to a second chemical test, Licensee [Gregro] still did not comply with this statute. Officer Wiley determined that Licensee [Gregro] had produced an extremely weak breath for the test. Thus, Licensee [Gregro] did not successfully complete the chemical test that he had taken.
Trial Court Opinion, August 21, 2009, at 3-4.
Gregro contends*fn2 that he complied with the chemical testing requirements contained in Section 1547 of the Code, 75 Pa.C.S. §1547, when he blew into an Alco- sensor, an approved evidentiary breath testing device and registered a .11 percent blood alcohol content reading even though he later refused to submit to a blood test.*fn3
The question of whether a licensee has refused chemical testing is one of law, based upon the facts found by the trial court. Tullo v. Department of Transportation, Bureau of Driver Licensing, 837 A.2d 605 (Pa. Cmwlth. 2003). This Court has held that anything substantially less than an unqualified, unequivocal assent to submit to chemical testing constitutes a refusal. Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420 (Pa. Cmwlth. 1998).
Here, Gregro asserts that he complied with the request to submit to the chemical testing when he blew into an Alco-Sensor device after Officer Wiley stopped him. Gregro asserts that because the Pennsylvania Department of Health has approved the Alco-Sensor as a prearrest or evidentiary breath testing device his ...