              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward W. Hinderliter,                   :
                         Appellant       :
                                         :
                   v.                    :
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :   No. 1397 C.D. 2018
Bureau of Driver Licensing               :   Argued: June 12, 2020


BEFORE:     HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY
JUDGE COVEY                                  FILED: July 6, 2020

            Edward W. Hinderliter (Licensee) appeals from the Montgomery County
Common Pleas Court’s (trial court) September 20, 2018 order denying Licensee’s
license suspension appeal. Licensee presents two issues for this Court’s review: (1)
whether Licensee’s conduct constituted a refusal; and (2) whether the breath-test
procedures were unreliable because the Commonwealth of Pennsylvania, Department
of Transportation, Bureau of Driver Licensing (DOT) failed to establish that the
proper procedures were followed. After review, we affirm.
            On April 10, 2017, the Pottstown Borough Police Department dispatched
Officer Ronald Taylor (Officer Taylor) to the scene of a motor vehicle accident.
Upon arriving, Officer Taylor approached Licensee, a 70-year-old retired
schoolteacher, and noted that he was uncoordinated and confused in his conversation,
and that his eyes were red and bloodshot. Licensee stated that he had been drinking
alcohol that day. Licensee also told Officer Taylor that he had been at the scene for 3
hours after the accident, when in reality only 45 minutes had elapsed since the time of
the accident. Based upon his observations and Licensee’s confusion, Officer Taylor
placed Licensee under arrest for driving under the influence (DUI).
              Officer Taylor transported Licensee to the police station for a breath test.
Officer Taylor read Licensee the implied consent warnings (Form DL-26).1 Licensee
agreed to take the breath test. Officer Taylor told Licensee that he needed to blow
steadily into the breathalyzer machine or the test would not work. Officer Taylor
further explained that Licensee could not stop and start his breaths. However, during
the first test, Licensee stopped his breath 10 times.             The test was recorded as
incomplete.
              After Licensee’s first attempt to provide a proper breath sample was
unsuccessful, Officer Taylor placed a new mouthpiece on the machine, and again told
Licensee he must provide a steady breath. Once again, Licensee started and stopped
his breath. The result of that test was listed as a suck back error. Following these 2
tests, Officer Taylor recorded that no successful sample was provided, and marked
the test as a refusal.
              On June 2, 2017, DOT notified Licensee that his driver’s license
privileges would be suspended for a period of 18 months, effective July 7, 2017,
pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)(ii),
due to his refusal to submit to chemical testing.              Licensee appealed from the
suspension to the trial court. A hearing was held on August 6, 2018,2 and, on
September 20, 2018, the trial court dismissed Licensee’s appeal. Licensee appealed




       1
         “The [Form] DL-26 [] contains the chemical test warnings required by Section 1547 of the
Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent warnings.” Vora
v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa. Cmwlth. 2013).
       2
         The hearing was continued five times for reasons not disclosed in the record.
                                               2
to this Court.3 The trial court filed its opinion on December 7, 2018.4
               Licensee first argues that his conduct constituted a willingness to take
any test and did not constitute a refusal. Specifically, Licensee contends that the
evidence in this case amounts to much more than a mere good faith effort on the part
of Licensee. Licensee claims that he was courteous and cooperative, he followed all
instructions, and he did not remain silent, but rather, provided all information
requested of him. Further, Licensee asserts that he agreed to take the breath tests.
Thus, Licensee maintains that there is absolutely no record evidence that he
knowingly and consciously refused the tests.
               Initially, “[w]hether the conduct at issue constitutes a refusal is a
question of law reviewable by this Court.” Conrad v. Dep’t of Transp., Bureau of
Driver Licensing, 226 A.3d 1045, 1051 n.4 (Pa. Cmwlth. 2020) (quoting Lemon v.
Dep’t of Transp., Bureau of Driver Licensing, 763 A.2d 534, 538 (Pa. Cmwlth.
2000)).

               Our Court has held that a licensee’s failure to provide two
               consecutive, sufficient breath samples, absent a proven
               medical reason that precludes him from doing so,
               constitutes a refusal as a matter of law.[5] Quick v. Dep’t of
               Transp., Bureau of Driver Licensing, 915 A.2d 1268, 1271
               (Pa. Cmwlth. 2007); see [Section 77.24(b)(1) of DOT’s
               Regulations,] 67 Pa. Code § 77.24(b)(1) (stating that ‘[t]he
               procedures for alcohol breath testing shall include, at a
               minimum . . . [t]wo consecutive actual breath tests, without

       3
          “Our review is to determine whether the factual findings of the trial court are supported by
competent evidence and whether the trial court committed an error of law or abused its discretion.”
Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa. Cmwlth.
2018).
        4
          The trial court requested this Court to quash the appeal for Licensee’s failure to request the
notes of testimony. Because the notes of testimony were, in fact, requested and filed with this
Court, this Court will not address the trial court’s request.
        The trial court did not file an order directing Licensee to file a concise statement of the
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
        5
          Licensee does not allege that a medical reason precluded him from completing the tests.
                                                   3
                a required waiting period between the two tests’) (emphasis
                added). Moreover, the ‘failure to complete a breathalyzer
                test, whether or not a good faith effort was made to do so,
                constitutes a refusal per se to take the test.’ Sweeney v.
                Dep’t of Transp., Bureau of Driver Licensing, 804 A.2d
                685, 687 (Pa. Cmwlth. 2002) (en banc) (emphasis in
                original); see Dep’t of Transp., Bureau of Driver Licensing
                v. Kilrain, . . . 593 A.2d 932, 935 ([Pa. Cmwlth.] 1991) (en
                banc) (‘Anything less than a completed breathalyzer test
                which registers a blood alcohol reading on the breathalyzer
                constitutes a refusal.’).

Conrad, 226 A.3d at 1052.
                Here, Officer Taylor testified:6

                [T]he [breathalyzer] instrument was – [Licensee’s]
                information was put in the instrument. The test starts
                running. What it does is purge itself to make sure there’s
                no residual alcohol in it. It scans all the information to get
                ready for a printout.
                I took the hose, put in a mouth[]piece, a clean, fresh
                mouth[]piece for [Licensee]. I explained to him what we
                were going to be doing. We had to do two tests. I’m going
                to hold the hose. I need him just to take a deep breath and
                blow consistently into the hose without stopping, until I tell
                him to stop. He had moved over. I don’t know if he was
                sitting there yet. He was sitting next to the instrument. I
                moved him over closer to the hose, as we generally do, so
                he could reach it without having to really bend over.
                Started the breath tests. He was blowing into it. And it was
                -- he was stopping and starting. He would blow kind of
                hard and lose all his air and have to stop. Take another
                breath, do it again, do it again.
                I told him, you have to make it one steady flow or it won’t
                give a test. It will be an incomplete test.




       6
           Officer Taylor is a “Certified Breath Test Operator.” Notes of Testimony, August 6, 2018
Ex. C-5.


                                                 4
            He had -- at one point he was blowing around the
            mouthpiece as I was holding onto it. I could feel his breath
            coming around, hitting my hand.
            The instrument also makes a tone, a steady tone when it’s
            getting the proper amount of air into it. He wasn’t getting a
            tone. And when he was, it would only last for a few
            seconds. It’s actually probably about twelve seconds you’ll
            have to go, to get a complete test.
            So he was stopping, starting, stopping and starting. The test
            keeps running. And at the end of the test, if it doesn’t have
            a complete sample, it will come up as an incomplete test[,]
            which this first one did.
            At that point[,] I started the second test. It re-purged itself.
            I gave him a new mouthpiece and explained, again, before
            we started, that he has to go with one steady breath. You
            keep going or it will cancel out the test, if it happens[,] [i]t’s
            deemed a refusal. So trying to get him to give me one
            steady, good test.
            We started the second test, and he started blowing and then
            the same thing was happening. He was stopping, starting,
            stopping. And before it even got completed, he -- when he
            took in a breath, he still was holding onto the mouthpiece.
            And he sucked in, and gave it an automatic suck-in error,
            which came up on the printout slip.
            So it was another incomplete test.

Notes of Testimony, August 6, 2018 (N.T.) at 16-17; see also N.T. Ex. C-5 (Subject
Test Results). Officer Taylor expounded:

            Q Officer Taylor, . . . Did [Licensee] comply with your
            instructions given?
            A He did, except for constantly giving a steady breath. As
            I said, he kept starting and stopping. And I told him
            numerous times, to make sure he understood, he had to keep
            going steadily or it wasn’t going to complete the test.
            Q And how many times did you allow [Licensee] to
            attempt the breath test?


                                            5
             A Well, we took two tests, but on the first one, probably
             about ten times, he had stopped and I had him restart.
             If you have to restart it, it doesn’t keep the alcohol at that
             level. So it’s like starting the breathing part all over again.
             It starts at the bottom, works its way up.
             So every time, it had to start over. And it only gives you a
             certain amount of time before the test times out. The
             instrument stops and qualifies it as a valid test or as an
             insufficient sample; which is what happened in his case[].

N.T. at 17-18.
             Because “the ‘failure to complete a breathalyzer test, whether or not a
good faith effort was made to do so, constitutes a refusal per se to take the test[,]’”
Licensee’s failure to successfully complete the breath test constituted a per se refusal.
Conrad, 226 A.3d at 1052 (quoting Sweeney, 804 A.2d at 687). Accordingly, the trial
court properly determined that Licensee’s failure to complete the test was a refusal.
             Licensee next argues that the breath test procedures were unreliable
because DOT failed to establish that proper procedures were followed. Specifically,
Licensee contends: (1) Officer Taylor did not establish that he complied with the 20-
minute observation requirement; (2) the DataMaster DMT which Officer Taylor used
to administer the breath tests to Licensee was not suitably calibrated and operating
properly; and (3) Officer Taylor did not read Form DL-26 to Licensee prior to his
failure to complete either of the two breath tests.
             Initially, Section 77.24 of DOT’s Regulations provides, in relevant part:

             (a) Observation. The person to be tested with breath test
             equipment shall be kept under observation by a police
             officer or certified breath test operator for at least 20
             consecutive      minutes        immediately        prior     to
             administration of the first alcohol breath test given to the
             person, during which time the person may not have ingested
             alcoholic beverages or other fluids, regurgitated, vomited,
             eaten or smoked. Custody of the person may be transferred
             to another officer or certified breath test operator during the

                                            6
            20 consecutive minutes or longer period as long as the
            person to be tested is under observation for at least 20
            consecutive minutes prior to initial administration of the
            alcohol breath test.
            (b) Procedures. Alcohol breath tests shall be conducted by
            a certified breath test operator. Accuracy inspection tests
            and calibrations conducted using breath test equipment
            shall be performed by a certified breath test operator,
            the manufacturer or its authorized representative or a person
            who has received comparable training or instruction.
            Alcohol breath tests, accuracy inspection tests and
            calibrations conducted using breath test equipment shall be
            performed in accordance with accepted standard procedures
            for operation specified by the manufacturer of the
            equipment or comparable procedures. The procedures for
            alcohol breath testing shall include, at a minimum:
            (1) Two consecutive actual breath tests, without a required
            waiting period between the two tests.

67 Pa. Code § 77.24(a), (b)(1) (emphasis added).
            However, this Court has held:

            [DOT] [i]s not required to prove that the machine was in
            proper working order to establish a refusal. . . . [W]hen
            [DOT] can establish a refusal without relying on results
            from the breathalyzer machine, the operability or suitability
            of the machine is simply not at issue.
            [Further, b]y analogy to the calibration cases interpreting
            Section 77.24(b) of [DOT’s] [R]egulations, we find that
            where the testimony of the administering officer alone is
            sufficient to support a finding that the licensee did not
            provide an adequate breath sample, without reliance on
            indicia from the breathalyzer machine itself, [DOT] need
            not show compliance with the observation requirements of
            [Section] 77.24(a) [of DOT’s Regulations] in order to
            establish a refusal.

Spera v. Dep’t of Transp., Bureau of Driver Licensing, 817 A.2d 1236, 1240-41 (Pa.
Cmwlth. 2003) (citations and footnote omitted).



                                         7
               Licensee asserts that the video entered into evidence at the trial court
hearing showed that the parties entered the room at 1:04:10 p.m. and the first test
commenced at 1:18:40 p.m. Consequently, Licensee maintains that the observation
period lasted for 14½ minutes rather than the required 20 minutes.
               The trial court expressly concluded that “[i]n this case, Officer [Taylor7]
testified as to [Licensee’s] failure to provide the required breaths.” Trial Ct. Op. at 6.
Thus, because Officer Taylor’s testimony was sufficient to support the finding that
Licensee did not provide an adequate breath sample, without reliance on indicia from
the breathalyzer machine itself, “[DOT] need not show compliance with the
observation requirements of [Section] 77.24(a) [of DOT’s Regulations] in order to
establish a refusal.” Spera, 817 A.2d at 1241.
               Notwithstanding, the trial court also stated: “Officer [Taylor], a police
officer and a certified breath test operator, testified that he had observed [Licensee]
for more than [20] minutes prior to the test from the time the two first interacted until
the test was taken, which testimony the [trial] court finds to be credible.” Trial Ct.
Op. at 7. Accordingly, the record evidence supports the trial court’s conclusion that
the observation period lasted the required 20 minutes.
               Licensee also contends that the DataMaster DMT which Officer Taylor
used to administer the breath tests to Licensee was not properly calibrated and
operating properly. However, as is the case herein, “when [DOT] can establish a
refusal without relying on results from the breathalyzer machine, the operability or
suitability of the machine is simply not at issue.” Spera, 817 A.2d at 1240.




       7
          For reasons unknown, the trial court inadvertently referred to Officer Taylor as Officer
Walker at the end of its opinion. Reading the opinion in context, it is clear that the trial court was
referring to Officer Taylor.
                                                  8
               Nevertheless, Officer Taylor testified:

               Q Officer Taylor, I’m going to ask you to identify this
               document marked as Commonwealth Exhibit 3.[8] May you
               identify that for the Court, please.
               A This is a certificate of calibration for the breath testing
               device. The --
               ....
               Q My apologies. What does that certificate indicate?
               A That on April 18th of 2016[,] it was calibrated to be true
               and accurate. And that was the DataMaster, DMT.
               number --
               ....
               THE COURT: You were about to say the number.
               THE WITNESS: I’m sorry. The serial number for that
               particular one was 500319.
N.T. at 11-12. Officer Taylor continued:
               Q Officer Taylor, I’m going to ask you to identify this
               document marked as Commonwealth Exhibit 4.[9] May you
               please identify it for the Court, please.
               A This is a Commonwealth Certificate of Breath Testing
               Device Accuracy. As I said, they’re tested every 30 days.
               This was certified on March 13th of 2017[,] for the same
               DataMaster, Serial Number 500319.

N.T. at 14-15. Accordingly, the record evidence supports the conclusion that the
DataMaster DMT which Officer Taylor used to administer Licensee’s breath tests
was suitably calibrated and operating properly.




      8
          Commonwealth Exhibit 3 was admitted into evidence. See N.T. at 14.
      9
          Commonwealth Exhibit 4 was admitted into evidence. See N.T. at 15.
                                               9
            Finally, Licensee argues that DOT failed to establish that Officer Taylor
read Form DL-26 to Licensee prior to his failure to complete either of the two breath
tests. Specifically, Licensee contends:

            Officer Taylor testified that he read the warnings contained
            in [Form] DL-26 to [Licensee] and [Licensee] agreed to
            take the test. This evidence is supported by the video which
            showed [Licensee] taking the test. However, on the [Form]
            DL-26 introduced into evidence by [DOT], Officer Taylor
            signed his name that ‘operator refused to sign, after being
            advised’. R[eproduced Record at] 18[a], 28a. The Officer
            was unable to provide any satisfactory evidence as to this
            discrepancy and as to why he never asked [Licensee] to sign
            it. Going further in the form; [Officer Taylor] testified that
            [Licensee] []refused to submit to a breath test after having
            been read the above warnings. . . .
Licensee Br. at 26.
            Officer Taylor testified:
            Q Officer[] Taylor, can you identify that document, please.
            ....
            THE WITNESS: This is our Chemical Test Warnings.
            ....
            THE COURT: Okay. What is it? What are you looking
            at?
            THE WITNESS: It’s a []DOT [F]orm[] DL-26[]. And it’s
            the Chemical Test Warnings for -- to allow people to know
            what their possible penalties could be if they refuse to take
            the test outright.
            BY MS. QUADRI:
            Q Officer Taylor, did you read this form to [Licensee]?
            A Yes. To the best of my knowledge, I did.
            Q And what was [Licensee’s] response?


                                          10
               A He agreed to take a breath test.
               MS. QUADRI: Okay. Your Honor, at this time I w[ill] be
               offering into evidence []DOT’s certified records marked as
               Commonwealth Exhibit 1.[10] I did give a copy to opposing
               counsel.
N.T. at 7-9.
               The Form DL-26 read to Licensee stated in relevant part:
               It is my duty as a police officer to inform you of the
               following:
               1. You are under arrest for driving under the influence of
               alcohol or a controlled substance in violation of Section
               3802 of the Vehicle Code[, 75 Pa.C.S. § 3802].
               2. I am requesting that you submit to a chemical test of
               breath.
               3. If you refuse to submit to the breath test, your operating
               privilege will be suspended for at least 12 months. If you
               previously refused a chemical test or were previously
               convicted of driving under the influence, you will be
               suspended for up to 18 months. In addition, if you refuse to
               submit to the breath test, and you are convicted of violating
               Section 3802(a)(1) (relating to impaired driving) of the
               Vehicle Code, then, because of your refusal, you will be
               subject to more severe penalties set forth in Section 3804(c)
               (relating to penalties) of the Vehicle Code. These are the
               same penalties that would be imposed if you were
               convicted of driving with the highest rate of alcohol,
               which include a minimum of 72 consecutive hours in jail
               and a minimum fine of $1,000.00, up to a maximum of five
               years in jail and a maximum fine of $10,000[.00].
               4. You have no right to speak with an attorney or anyone
               else before deciding whether to submit to testing. If you
               request to speak with an attorney or anyone else after being
               provided these warnings or you remain silent when asked to
               submit to a breath test, you will have refused the test.



      10
           Commonwealth Exhibit 1 was admitted into evidence. See N.T. at 10.
                                               11
              I certify that I have READ the above warnings to the
              operator regarding the suspension of his/her operating
              privilege and gave the operator an opportunity to
              submit to a breath test.
              Signature of Officer:                      Date:
              I have been advised of the above.
              Signature of Operator:                     Date:


              Operator refused to sign, after being advised.
              Signature of Officer:                      Date:

N.T. Ex. C-1 (emphasis in original).             Officer Taylor signed his name in both
“Signature of Officer” areas, and the “Signature of Operator” area remained blank.
Id.
              Officer Taylor testified that, to the best of his knowledge, he read
Licensee Form DL-26. N.T. at 9. Further, Officer Taylor signed the certification
stating that he did so. N.T. Ex. C-1. The fact that Officer Taylor also signed the
refusal portion is of no moment. This fact is especially true here because Licensee
consented to the breath test and, thereafter, there was a deemed refusal. Because the
purpose of Form DL-26 is to notify a licensee of the consequences of refusing a
chemical test,11 and Licensee did not refuse said test, this argument is moot.
              For all of the above reasons, the trial court’s order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge


       11
          See Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (The
“purpose of [Section 1547(b)(2) of the Vehicle Code] ‘is to entitle arrestees to the information
necessary to assess the dire consequences they face if they fail to consent to chemical testing, to
ensure their choice in that regard is knowing and conscious[.]’”) (quoting Dep’t of Transp., Bureau
of Driver Licensing v. Weaver, 912 A.2d 259, 267 (Pa. 2006) (Baer, J., dissenting)).
                                                12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edward W. Hinderliter,                 :
                         Appellant     :
                                       :
                  v.                   :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :   No. 1397 C.D. 2018
Bureau of Driver Licensing             :


                                     ORDER

            AND NOW, this 6th day of July, 2020, the Montgomery County
Common Pleas Court’s September 20, 2018 order is affirmed.




                                     ___________________________
                                     ANNE E. COVEY, Judge
