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George R. Martin Jr v. Commonwealth of Pennsylvania

May 19, 2011

GEORGE R. MARTIN JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA,DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: April 1, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

George R. Martin, Jr. (Licensee), appeals from the August 23, 2010, order of the Court of Common Pleas of Lancaster County (trial court), which dismissed Licensee's appeal challenging the suspension of his operating privileges by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), pursuant to section 1547(b)(1)(ii) of the Vehicle Code.*fn1

We reverse.

On August 21, 2009, Trooper Steven Ledwich performed a traffic stop after observing Licensee drive through a stop sign. When Trooper Ledwich smelled alcohol and noticed that Licensee had bloodshot eyes, he asked that Licensee undergo field sobriety testing. When Trooper Ledwich administered the portable breath test, Licensee failed to provide a sufficient breath sample for a reading.

Trooper Ledwich placed Licensee under arrest for driving under the influence of alcohol and took him to the state police barracks for chemical testing. After receiving the required warnings, Licensee was asked to submit to a breath test, but Licensee indicated that he suffered from asthma. Trooper Timothy Connolly told Licensee that asthma should have no effect on his performance of the breath test. (N.T., 7/27/10, at 17, R.R. at 14.) Licensee made four or five attempts to complete the test, but he failed to provide sufficient breath samples. The trooper recorded a refusal to submit to chemical testing, and, as a result, DOT suspended Licensee's operating privileges. Licensee filed an appeal with the trial court, which held a hearing on the matter.

At the hearing, DOT presented the testimony of Troopers Ledwich and Connolly. Trooper Ledwich testified that he had no experience with a licensee who claimed to have breathing problems. (Id. at 17, 21, R.R. at 14-15.) Thus, Trooper Ledwich did not question Trooper Connolly when Trooper Connolly told Licensee that his asthma should not prevent him from providing sufficient breath samples. (Id. at 10, R.R. at 12.) Trooper Connolly testified that Licensee made four or five failed attempts, but he believed that Licensee could have provided sufficient breath samples. (Id. at 28-29, R.R. at 17.) The trooper stated that, in other cases where people could not provide sufficient breath samples, most were able to do so "after some talking to them and encouraging them and explaining it again and again." (Id. at 27-28, R.R. at 17.) Thus, Trooper Connolly agreed that, "when someone can't provide a breath sample . . . they just need a talking to." (Id. at 29, R.R. at 17.)

Licensee testified at the hearing and offered the deposition testimony of Kenneth Hurst, M.D. Dr. Hurst testified that he has treated Licensee for asthma since 2001 and for chronic obstructive pulmonary disease (COPD) since 2005. (Hurst Dep., 4/21/10, at 5, R.R. at 53.) Dr. Hurst stated that: (1) asthma and COPD are different diseases, (Id. at 10-11, R.R. at 58-59); (2) Licensee was aware of his COPD prior to the August 21, 2009, arrest, (Id. at 20, R.R. at 68); (3) Licensee was not aware of the seriousness of his COPD until September 9, 2009, after the arrest, when Dr. Hurst performed a pulmonary function test, which was "the first confirmatory test that was ordered on him," (Id. at 12, R.R. at 60); (4) before the test, "nobody really knew how bad it was," (Id. at 20, R.R. at 68); (5) before the test, Licensee's physicians discussed his medical condition with him as "both asthma . . . and COPD," (Id.); and (6) because of his COPD, Licensee could not have completed the breath test without medication, (Id. at 7-9, R.R. at 55-57).

After considering the evidence, the trial court concluded that, although Licensee informed the troopers that he had asthma, Dr. Hurst's testimony established that Licensee's COPD, not his asthma, prevented him from completing the breath test. Thus, the trial court dismissed Licensee's appeal. Licensee now appeals to this court.*fn2

Licensee argues that, once he informed the troopers that he suffered from asthma, a medical condition that could affect his ability to provide sufficient breath samples, the officer was required to administer an alternative test. As for his COPD, Licensee asserts that, because the first confirmatory test for COPD occurred after the arrest, he was not required to inform the troopers of that medical condition.

We agree.

In Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa. Cmwlth. 1995) (emphasis added), this court stated: [W]here a licensee suffers from a medical condition whose existence, 1) affects the licensee's ability to perform the test and 2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered.

Thus, the reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee's ability to complete one kind of test is to obtain results through a different chemical test. A licensee does not avoid testing by advising the officer of a medical condition, but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition. In the legal scheme, then, it is not the role of ...


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