Peter R. Giannopoulos, Appellant
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
Submitted: November 8, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
ANNE E. COVEY, Judge
Peter R. Giannopoulos (Licensee) appeals from the Montgomery County Common Pleas Court's May 28, 2013 order denying his appeal from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing's (DOT) suspension of his operating privileges for refusing to submit to chemical testing under Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).The sole issue for this Court's review is whether the trial court erred by finding that Licensee refused to submit to a chemical breath test. We affirm.
On March 16, 2012, Lower Merion Police Officer JoAnne Pepitone stopped Licensee because she observed his vehicle cross over the center lines on the roadway several times. Officer Pepitone observed that Licensee had bloodshot eyes, slurred speech and an odor of alcohol on his breath. Licensee admitted to Officer Pepitone that he had been drinking that evening. Licensee was asked to perform three roadside sobriety tests which he failed. Officer Pepitone arrested Licensee for driving under the influence of alcohol (DUI), and he was transported to Lower Merion Police Department's lock-up for further testing.
At the lock-up facility, Officer Pepitone advised Licensee of his rights pursuant to Section 1547 of the Vehicle Code. She also asked him if he had any medical conditions about which she should be made aware. Licensee answered, "no." Reproduced Record (R.R.) at 25a. Licensee acknowledged his rights and agreed to submit to a chemical breath test. Officer Robert Blattner administered Licensee's test. Because Licensee supplied insufficient breath samples, he was deemed to have refused chemical testing. On April 17, 2012, DOT issued Licensee official notice suspending his driving privileges for 18 months pursuant to "Section 1547BIII" of the Vehicle Code as a result of his chemical test refusal. R.R. at 7a. Licensee appealed to the trial court. The trial court held a de novo hearing on May 20, 2013 and, on May 28, 2013 denied Licensee's appeal. Licensee appealed to this Court.
Licensee argues that the trial court erred as a matter of law by finding that Licensee refused his chemical test, and by failing to consider that Licensee: gave an unqualified, unequivocal assent to the test; made a good faith but unsuccessful attempt to provide a breath sample; did not deliberately undermine the process; and, made an immediate and timely request for a second test. We disagree.
To sustain a license suspension under Section 1547(b) of the Vehicle Code, DOT has the burden of establishing that (1) the licensee was arrested for drunken driving by a police officer having reasonable grounds to believe that the licensee was driving while under the influence, (2) the licensee was requested to submit to a chemical test, (3) the licensee refused to do so and (4) the licensee was warned that refusal would result in a license suspension. Once DOT meets this burden, the burden shifts to the licensee to establish that he or she either was not capable of making a knowing and conscious refusal or was physically unable to take the test.
Wright v. Dep't of Transp., Bureau of Driver Licensing, 788 A.2d 443, 445 (Pa. Cmwlth. 2001) (citation omitted). It is undisputed in this case that: (1) Officer Pepitone had reasonable grounds to arrest Licensee for DUI, (2) Licensee was asked to submit to a chemical test with the understanding that his refusal to do so would result in a license suspension, and (3) Licensee submitted to the test. Thus, the sole question is whether Licensee's conduct during the test constituted a refusal to submit to chemical testing.
This Court has held that "[t]he question of whether a licensee has refused chemical testing is one of law, based upon the facts found by [the trial court]." Tullo v. Dep't of Transp., Bureau of Driver Licensing, 837 A.2d 605, 607 n.2 (Pa. Cmwlth. 2003).
[I]t is not the province of this Court to make new or different findings of fact. Rather, we may only review the trial court's findings to determine if they are supported by substantial, competent evidence. As long as sufficient evidence exists that is adequate to support the facts found by the trial court as fact-finder, we are precluded from overturning those findings. Additionally, we must view the evidence in a light most favorable to the party that prevailed before the trial court.
Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008) (citations omitted).
The following documents were admitted into evidence at the hearing: certified copies of the April 17, 2012 suspension notice, Licensee's signed Implied Consent Form (DL-26), Licensee's prior driving suspension letters, Officer Blattner's certification, the breathalyzer calibration, the machine's accuracy reports, and Licensee's chemical test results. In addition, Officer Blattner testified that the DataMaster DMT breathalyzer machine he was using on March 16, 2012 was certified calibrated and accurate.
Officer Blattner stated that, after Officer Pepitone read the Implied Consent form to Licensee, he confirmed that Licensee was willing to take the test, and Licensee replied that he was. Officer Blattner explained to Licensee that when he is instructed to do so, he should begin blowing into the mouthpiece with a steady, continuous exhale until he is instructed to stop. He also explained that the breath test would consist of two separate 2-minute sample periods separated by a rest, and that the lowest of the two readings would be used for prosecution. Officer Blattner then asked Licensee if he had any ...