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Heather Ann Bomba v. Commonwealth of Pennsylvania

September 14, 2011

HEATHER ANN BOMBA
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: April 8, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE LEAVITT

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common Pleas of Allegheny County (trial court) sustaining Heather Bomba's (Licensee) statutory appeal of the suspension of her driving privileges for refusing to submit to chemical testing pursuant to Section 1547(b)(1)(i) of the Vehicle Code.*fn1 PennDOT contends that the trial court erred in finding that Licensee's conduct did not constitute a refusal to submit to chemical testing. Discerning no error, we affirm the order of the trial court.

On October 25, 2009, Licensee was arrested in Pittsburgh and charged with driving under the influence of alcohol. On January 18, 2010, PennDOT notified Licensee that her operating privilege was being suspended for a period of 12 months, effective February 22, 2010, as a result of her refusal to submit to chemical testing at the time of her arrest. Licensee filed a statutory appeal, and a hearing was held by the trial court on April 22, 2010.

At the hearing, PennDOT presented the testimony of Pittsburgh Police Officer Siara Lawniczak, who administered the breath tests on the night of Licensee's arrest. Officer Lawniczak testified that Officer Gregory Laepple brought Licensee to the station and, after a standard 20-minute waiting period, Officer Lawniczak read aloud the chemical testing warnings on Form DL-26. Licensee responded that she would submit to the breath test and signed the Form DL-26. Officer Lawniczak then administered a breath test using a BAC Datamaster breathalyzer machine, which had been properly calibrated and certified for accuracy.

Officer Lawniczak testified that Licensee "attempted to give one breath sample" that "was insufficient." Notes of Testimony, 4/22/2010, at 15 (N.T.___). Officer Lawniczak explained that the breathalyzer machine allows a two-minute window to provide an adequate breath sample; if an adequate breath sample is not provided within the two-minute timeframe, the machine prompts the operator to report whether a refusal has occurred. On the night in question, Officer Lawniczak instructed Licensee to "blow with one steady breath until . told to stop." Id. Instead, Licensee gave "a series of short breaths, not one continuous breath." N.T. 16. After two minutes had elapsed, the breathalyzer instrument prompted the officer to report whether there had been a refusal, and Officer Lawniczak pressed the "yes" button.

On cross-examination, Officer Lawniczak admitted that Licensee may have asked to retake the breath test; however, the officer stated that she is "only required to give one test." N.T. 25. Another test, according to the officer, would have taken ten minutes. Licensee's refusal took place approximately one hour after her arrest. The Vehicle Code provides a two-hour window of time following an arrest during which the breath test can be administered, as Officer Lawniczak acknowledged. 75 Pa. C.S. §3802(a)(2).*fn2

Licensee called the arresting officer, Officer Laepple, to testify. He testified that Licensee was polite and cooperative at the time of her arrest and that he was present during Licensee's attempt to produce a breath sample. Officer Laepple confirmed that Licensee's breath sample was insufficient.

Licensee testified on her own behalf. She acknowledged that Officer Lawniczak instructed her on how to provide a breath sample and explained that she "tried the best [she] could." N.T. 63. Licensee attributed her inability to do the test the first time to being "very upset" by her arrest and placement in a holding cell. N.T. 60. Licensee testified that when she learned she was being considered a refusal, she immediately asked for another chance to do the breath test. According to Licensee, [Officer Lawniczak] told me she was marking me a refusal. At that point I tried to ask her, please, give it to me again, please, I want to try again. She did not let me do that.

N.T. 61. Instead, Officer Lawniczak asked Officer Laepple to remove her from the testing room. Licensee testified that she did not refuse to take the breath test.

The trial court considered the evidence and made the following findings:

The primary reason that the Courts look with disfavor upon the practice of a motorist who delays and requests a second test or changes her mind much later following a refusal, is due to the effect of such a delay on the test itself. A long delay increases the potential for inaccurate test results. Commonwealth of Pennsylvania, Department of Transportation v. Belle, 524 A.2d 1060 (Pa. Cmwlth. 1987).

Here, Officer Lawniczak testified that [Licensee] gave her consent to the breath test and her testimony was corroborated by [Licensee]. This consent was nothing less than unqualified and unequivocal. She was then unable to complete the breath test in the two minutes permitted, but immediately requested that Officer Lawniczak administer a second test. Officer Lawniczak stated that the second test would take about ten (10) minutes. There is absolutely no evidence that [Licensee] was attempting to delay the administration of the test, which may have resulted in an inaccurate reading. [Licensee's] initial, unequivocal and unqualified consent to the breath test, her ...


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