Argued February 10, 2014.
Appealed from No. 2012-10517. Common Pleas Court of the County of Montgomery. Moore, J.
Timothy P. Wile, Lansdale, for appellant.
Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellee.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge (P.).
P. KEVIN BROBSON, Judge.
Appellant Patricia Joan Campbell (Licensee) appeals from an order of the Court of Common Pleas of Montgomery County (trial court). The trial court denied Licensee's statutory appeal of the suspension of her driving privileges by the Department of Transportation, Bureau of Driver Licensing (DOT), for refusing to submit to chemical testing pursuant to Section 1547(b)(1)(i) of the Vehicle Code (Code). Licensee primarily contends that the trial court erred in concluding that DOT set forth a prima facie case under the Implied Consent Law, because it did not establish that Deputy Sheriff Russell P. Rorick, who read the Implied Consent Law warnings and administered the breath test to Licensee, was a " police officer" for purposes of the Implied Consent Law. The trial court concluded that Licensee waived this issue. Licensee also argues that the trial court erred in concluding that her conduct during breath sampling testing constituted a refusal to submit to testing. We affirm the trial court's order.
On February 12, 2012, Montgomery Township Police Officer Adam Deussing arrested Licensee and charged her with driving under the influence of alcohol. On March 27, 2012, DOT sent a notice of suspension to Licensee informing her that her driving privileges were suspended for a one-year period as a result of her refusal to submit to chemical testing following her arrest. Licensee filed a statutory appeal of the suspension notice, and the trial court conducted a hearing on February 4, 2013.
During the hearing, DOT introduced the testimony of Officer Deussing. Officer Deussing testified that on February 12, 2012, at approximately 11:30 p.m., the Montgomery Township Police dispatched him to investigate a two-car collision. Officer Deussing testified that when he arrived at the scene, he spoke with Licensee, who at that time was outside of her vehicle. Officer Deussing noted an odor of alcohol on Licensee's breath. Officer Deussing testified that when he first asked Licensee if she had been drinking, " she responded no." (Reproduced Record (R.R.) at 20a.) After Officer Deussing told Licensee that he smelled alcohol, she told him she had had two drinks. Officer Deussing testified that he performed field sobriety tests with Licensee and that he used a portable breath test, which registered a blood-alcohol level of .18. Based upon his observations, Licensee's statements, and the test results, Officer Deussing formed the opinion that Licensee had been operating a vehicle under the influence
of alcohol at an unsafe level. Officer Deussing arrested Licensee and took her to the Montgomery County Sheriff's Office, which has a facility for performing chemical testing of persons suspected of driving under the influence of alcohol.
DOT next offered the testimony of Deputy Rorick. Deputy Rorick testified that he is a certified breath test operator and that he helps " the police departments out processing suspected DUI drivers." (R.R. at 26a.) Deputy Rorick testified that after Officer Deussing brought her in for testing, he read the Implied Consent Law warnings several times to Licensee, who ultimately indicated that she understood the warnings. Deputy Rorick then requested Licensee to submit to chemical testing, and she agreed. Deputy Rorick testified that he used " the BAC Data Master." (R.R. at 29a.)
Deputy Rorick testified that he explained to Licensee several times how to take the test:
I explained to [Licensee] that in order to receive a proper sample of breath, she needed to take a deep breath in, put her lips tightly around the mouthpiece so that no air can come out the sides and that the only air that goes from her body is through the tube, and to continuously blow through the tube into the instrument until she's told to stop.
(R.R. at 32a.) Deputy Rorick testified that the first time Licensee attempted to complete the test, she stopped submitting breath after four or five seconds, which is an insufficient breath for testing purposes. ( Id.) As a result, he had to interrupt that test to permit the machine to " clear out." ( Id.) Deputy Rorick testified that, after her first failed attempt to provide a sufficient sample, he offered the breath tube to Licensee and directed her to begin to breathe into the tube. (R.R. at 81a-82a.) Deputy Rorick testified that this request was premature, because " the instrument was not ready for her to" blow into it. ( Id.) Deputy Rorick testified that when the instrument was ready to receive Licensee's second attempt to submit a sample, Licensee made a second attempt. With regard to that attempt, Deputy Rorick testified:
Now, the second--the second actual sample that she was actually [giving], the part of the test was--the same thing happened. I showed her--re-showed her how to do it. And she began to blow, and she blew for, I would say, maybe eight seconds, but to my best recollection, which I cannot say is one hundred percent positive at this time, she was blowing out the side slightly. And she stopped blowing and it started beeping again. The instrument started to beep. And then she started to blow again. And then it ...