               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Wayne Shiring                            :
                                              :
       v.                                     : No. 1073 C.D. 2018
                                              : SUBMITTED: March 15, 2019
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing,                   :
                  Appellant                   :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                      FILED: May 14, 2019

       The Department of Transportation, Bureau of Driver Licensing (DOT), appeals
from the July 12, 2018 Order of the Court of Common Pleas of Allegheny County
(Trial Court) sustaining the appeal of John Wayne Shiring (Licensee) from DOT’s 18-
month suspension of his operating privilege under Section 1547(b)(1)(ii) of the Vehicle
Code, 75 Pa. C.S. § 1547(b)(1)(ii).1 For the reasons that follow, we reverse the Trial



       1
           Section 1547(b)(1)(ii) of the Vehicle Code provides:

       If any person placed under arrest for a violation of [S]ection 3802 [of the Vehicle Code
       (relating to driving under influence of alcohol or controlled substance (DUI))] is
       requested to submit to chemical testing and refuses to do so, the testing shall not be
       conducted but upon notice by the police officer, [DOT] shall suspend the operating
       privilege of the person . . . [f]or a period of 18 months [for a second DUI offense] . . .
       .

75 Pa. C.S. § 1547(b)(1)(ii). Licensee was previously convicted of DUI in June 2011. See Notes of
Testimony (N.T.), 7/12/18, Ex. 3.
Court’s Order and direct DOT to reinstate the 18-month suspension of Licensee’s
operating privilege.
                                      Background
      On February 15, 2017, Officer Aaron Loughran of the City of Pittsburgh Police
Department was on patrol when he noticed a vehicle traveling in the middle of the road.
After following the vehicle for several blocks, Officer Loughran stopped the vehicle,
which was being driven by Licensee. When Licensee opened the window, Officer
Loughran smelled an odor of alcohol coming from the vehicle. Licensee produced his
driver’s license but was unable to locate his vehicle registration and proof of insurance.
      Officer Loughran asked Licensee to step out of the vehicle and perform three
field sobriety tests: the finger-to-nose test, the nine-step walk-and-turn test, and the
one-leg-stand test. Licensee did not correctly perform any of the tests. Officer
Loughran took Licensee into custody for suspicion of DUI.
      Officer Loughran transported Licensee to the Police Department’s Zone Special
Deployment Division, where Officer Loughran transferred custody of Licensee to
Officer Dale Ruble. Officer Ruble asked Licensee to perform additional field sobriety
testing, but Licensee refused. Officer Ruble then read the implied consent warnings to
Licensee from DOT’s DL-26A Form. After Officer Ruble read the warnings to
Licensee, Licensee consented to a breath test.
      Officer Ruble administered two breath tests to Licensee using the DataMaster
DMT breathalyzer machine. Officer Ruble was a certified operator of the DataMaster
DMT breathalyzer machine. The machine was properly functioning, calibrated, and
certified for accuracy.
      Before administering the breath tests, Officer Ruble instructed Licensee how to
provide a valid breath sample, directing him to make a good seal over the tube and
breathe into the tube with one continuous long breath. During the first test, Licensee


                                            2
provided multiple short breaths rather than one continuous long breath, so the machine
registered a refusal. Officer Ruble again instructed Licensee how to submit a valid
breath sample. During the second test, Licensee again provided short breaths, so the
machine registered a refusal. Because Licensee did not satisfactorily complete either
breath test, Officer Ruble recorded that Licensee refused chemical testing.
       On April 13, 2017, DOT suspended Licensee’s operating privilege for a period
of 18 months, effective May 18, 2017, under Section 1547(b)(1)(ii) of the Vehicle
Code. Licensee timely appealed to the Trial Court, which held a de novo hearing on
July 12, 2018. At the hearing, DOT presented the testimony of Officers Loughran and
Ruble, and Licensee testified on his own behalf.
       Officer Loughran testified that “[w]hen [Licensee] first stepped out [of the
vehicle] . . . [he] sort of lost his balance a little bit and I asked if he was okay. I thought
maybe he was injured or something but it was just – he said he was fine, he was just 70
years old, that’s all.”       N.T., 7/12/18, at 7.        Officer Loughran testified that he
administered three field sobriety tests to Licensee at the scene, but Licensee failed all
three tests. Id. at 7-10.
       Officer Ruble, who administered the breath tests to Licensee, testified that he
did not recall Licensee advising him that he suffered from any medical condition that
would have prevented him from providing the required breath samples. Id. at 27. He
also testified that he did not observe Licensee wheezing or gasping for breath or in any
apparent respiratory distress. Id. at 27-28. DOT’s counsel admitted into evidence the
printouts from the breathalyzer machine showing the results of Licensee’s two breath
tests. Id. at 26-27.2



       2
         Licensee’s counsel objected to the admission of the breathalyzer test results. N.T., 7/12/18,
at 26. The Trial Court noted the objection but admitted them into evidence. Id. at 27.

                                                  3
         Officer Ruble testified that Licensee never told him that he did not understand
the implied consent warnings on the DL-26A Form or that he did not understand the
instructions for completing a valid breath sample. Id. at 28. On cross-examination,
Officer Ruble stated that Licensee did not expressly refuse to take the breath test, id. at
29, and admitted that Licensee “did make some attempt at a sample,” id. at 32. Officer
Ruble further testified that he was “sure” that he asked Licensee if he had any physical
problems or was taking any medications because he “always” asks that question. Id.
at 32.
         Licensee testified that he recalled Officer Ruble reading the DL-26A Form to
him, but he did not refuse the breath test. Id. at 36. Licensee testified that, at that time,
he smoked heavily and his smoking affected his breathing. Id. at 37. Licensee also
testified that he had hiatal hernia surgery on April 16, 2018 and he believed the surgery
affected his breathing. Id. Licensee’s counsel clarified, however, that Licensee’s
hernia surgery actually occurred on January 18, 2017, one month before the traffic stop.
Id. at 38.3 Licensee then testified as follows:

         [Counsel:] As a result of the [hernia] surgery[,] were you having any
         physical problems?

         [Licensee:] Yes.

         [Counsel:] Did you explain any of this to the officer?

         [Licensee:] No, not at that time.

         ...




         3
           With regard to the hernia surgery, Licensee’s counsel also stated, “We have a letter here,
clearly . . . we can’t afford to bring the doctor in[,] to be honest with you.” N.T., 7/12/18, at 39. No
such letter was admitted into evidence.

                                                   4
       [Counsel:] And as a result of these physical problems . . ., what other
       problems did you have physically besides the smoking and hernia,
       anything?

       [Licensee:] Well, I’ve just been sick for the last two years, Your Honor.
       Since I retired it’s one thing after another.

Id. at 39.
       On cross-examination, Licensee admitted that he did not inform Officer Ruble
at the time of the test that he was experiencing any breathing problems due to being a
heavy smoker. Id. at 40. He also admitted that he did not inform Officer Ruble of any
breathing problems resulting from his recent hernia surgery. Id. Licensee testified that
Officer Ruble “probably asked me [about any illnesses or injuries] at the time,” but “it
just didn’t occur to me.” Id. at 41.
       At the conclusion of the hearing, the Trial Court sustained Licensee’s appeal.
Id. at 44. In its subsequent Pa. R.A.P. 1925(a) Opinion, the Trial Court explained its
reasoning as follows:

              There was uncontroverted evidence that [Licensee], who was 70
       years old, had a surgical procedure for a hernia on January 18, 2017, which
       was only about [one] month before Officer Ruble conducted the
       breathalyzer test on February 15, 2017. This Court found [Licensee’s]
       testimony that he performed the breath tests to the best of his ability to be
       credible. . . .


             ...


             The issue here is whether [Licensee] refused to submit to a chemical
       breath test by providing insufficient samples. A licensee must be given a
       meaningful opportunity to complete the breath test. Here, although
       [Licensee] was given two opportunities to complete the breathalyzer test,
       he had recently undergone surgery, which could explain his inability to
       provide an adequate breath sample.



                                            5
Trial Ct. Op., 10/25/18, at 3-4 (internal citation omitted). DOT now appeals to this
Court.4
                                                Issue
        Did the Trial Court err in sustaining Licensee’s appeal, where Licensee failed to
inform Officer Ruble of any breathing problems at the time of the breath test and failed
to sustain his burden of proving that he was physically unable to complete a breath
test?
                                              Analysis
        To support the suspension of a licensee’s operating privilege under Section
1547(b)(1)(ii) of the Vehicle Code, DOT must prove that the licensee: (1) was arrested
for DUI by an officer who had reasonable grounds to believe that the licensee was
operating a vehicle while under the influence of alcohol in violation of Section 3802 of
the Vehicle Code; (2) was asked to submit to a chemical test; (3) refused to do so; and
(4) was warned that his refusal might result in a license suspension and would result in
enhanced penalties if he were later convicted of DUI. Martinovic v. Dep’t of Transp.,
Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Once DOT satisfies
its burden of proof, the burden shifts to the licensee to prove that either: (1) his refusal
was not knowing and conscious; or (2) he was physically incapable of completing the
chemical test. Id.; see Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d
336, 339 (Pa. Cmwlth. 2010).
        DOT first argues that the Trial Court erred in concluding that because Licensee
“performed the breath tests to the best of his ability,” Trial Ct. Op., 10/25/18, at 4, DOT
failed to prove that Licensee refused chemical testing. We agree.

        4
         In an appeal arising from a suspension of a licensee’s operating privilege, our scope of review
is limited to determining whether the Trial Court’s decision is supported by substantial evidence,
whether there has been an error of law, or whether the Trial Court manifestly abused its discretion.
Pappas v. Dep’t of Transp., Bureau of Driver Licensing, 669 A.2d 504, 507 n.4 (Pa. Cmwlth. 1996).

                                                   6
      The evidence established, and the Trial Court found, that although Licensee
attempted to provide two breath samples, he did not successfully complete either breath
test. This Court has held that 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) (emphasis added). Even a good faith attempt to comply with the test
constitutes a refusal if the licensee fails to supply a sufficient breath sample, absent a
proven medical reason that precludes him from doing so. Id.; see Quick v. Dep’t of
Transp., Bureau of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007) (“[A]
licensee’s failure to provide two consecutive sufficient breath samples as required by
67 Pa. Code § 77.24(b) (relating to breath test procedures), absent a proven medical
reason that precludes the licensee from so doing, constitutes a refusal of the breath test
as a matter of law.”); Dep’t of Transp., Bureau of Driver Licensing v. Kilrain, 593 A.2d
932, 935 (Pa. Cmwlth. 1991) (“Anything less than a completed breathalyzer test which
registers a blood alcohol reading on the breathalyzer constitutes a refusal.”). Therefore,
in light of our well-established law, we conclude that the Trial Court erred in
determining that because Licensee made a good faith attempt to complete the breath
tests, his failure to do so was not a refusal.
      Next, DOT contends that the Trial Court erred in concluding that Licensee
established a valid medical reason for failing to complete the breath tests because
Licensee failed to inform Officer Ruble that he had any medical problems at the time
of the testing. We agree.
      It is well settled that a licensee has a duty to inform the police officer of any
known medical conditions that are not obvious and may affect his ability to perform
the requested chemical test. Whistler v. Dep’t of Transp., Bureau of Driver Licensing,
882 A.2d 537, 540 (Pa. Cmwlth. 2005); Bridges v. Dep’t of Transp., Bureau of Driver


                                                 7
Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000); Finney v. Dep’t of Transp., Bureau
of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). “[T]he 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.” Martin v. Dep’t of Transp., Bureau of Driver Licensing, 20 A.3d 1250,
1253 (Pa. Cmwlth. 2011).
      If the licensee fails to inform the police officer administering the chemical test
that he suffers from a medical condition preventing successful completion of the test,
the licensee is not permitted to present testimony to establish that the medical condition
allegedly existed at the time of the test. Finney, 721 A.2d at 424; Hatalski v. Dep’t of
Transp., Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa. Cmwlth. 1995). In other
words, “[i]f the officer was not so notified, the licensee is precluded from relying upon
any such condition or inability as an affirmative defense to a suspension as a
consequence of a test refusal.” Hatalski, 666 A.2d at 390 (emphasis added). The only
exception under which a licensee may rely on a medical condition as an affirmative
defense is where the licensee “did not know that he had a condition [that] affected his
ability to produce enough breath to complete the breathalyzer test.” Bridges, 752 A.2d
at 460.
      Here, Officer Ruble testified that he did not observe any indication that Licensee
suffered from a medical condition that prevented him from completing a breath test.
N.T., 7/12/18, at 27-28. Officer Ruble also testified that he did not recall Licensee ever
telling him that he suffered from a medical condition that prevented him from
completing a breath test. Id. at 28. Licensee testified that, at the time of the test, he
was a heavy smoker and had recently undergone hernia surgery, both of which
negatively impacted his breathing. Id. at 37. Licensee admitted, however, that he did
not inform Officer Ruble that he was suffering from any physical problems at the time


                                            8
of the test. Id. at 39-41. Because the uncontroverted evidence established that Licensee
did not inform Officer Ruble of any breathing problems at the time of the test, Licensee
was precluded from raising the affirmative defense that he was physically incapable of
completing a breath test. See Finney, 721 A.2d at 424; Hatalski, 666 A.2d at 390.
Therefore, we conclude that the Trial Court erred in sustaining Licensee’s appeal based
on that affirmative defense.
      In any event, even if Licensee had informed Officer Ruble of his medical
condition at the time of the test, we would conclude that Licensee failed to satisfy his
burden of proving that he was physically incapable of completing a breath test. Our
Court has stated that “where a licensee suffers from a medical condition that affects his
ability to perform the test and that condition is not obvious, [a] finding that [the
licensee] was unable to take the test for medical reasons must be supported by
competent medical evidence.” Lemon v. Dep’t of Transp., Bureau of Driver Licensing,
763 A.2d 534, 538 (Pa. Cmwlth. 2000) (emphasis added); see Pappas, 669 A.2d at 508.
      The only evidence Licensee offered to prove the existence of his medical
condition was his own testimony that he was a heavy smoker and that he underwent
hernia surgery one month before the breath test. Based on that testimony alone, which
the Trial Court credited, the Trial Court found that Licensee “had recently undergone
surgery, which could explain his inability to provide an adequate breath sample.” Trial
Ct. Op., 10/25/18, at 4 (emphasis added). However, “[e]quivocal statements that a
motorist’s condition ‘could’ have or ‘may’ have prevented him from performing the
breathalyzer test properly are insufficient to meet th[e] requirement [of competent
medical evidence].” Dep’t of Transp., Bureau of Driver Licensing v. Wilhelm, 626
A.2d 660, 663 (Pa. Cmwlth. 1993). This Court has long held that a licensee’s “simple
declaration of incapacity to perform a chemical test, without medical proof, will not



                                           9
justify a refusal.” Wright v. Dep’t of Transp., Bureau of Driver Licensing, 788 A.2d
443, 447 (Pa. Cmwlth. 2001) (emphasis added).
      Here, Licensee offered no medical evidence whatsoever to establish the
existence of his alleged breathing problems or their impact on his ability to provide a
valid breath sample. Therefore, we conclude that the Trial Court’s determination that
Licensee’s recent hernia surgery prevented him from completing the breath tests is
unsupported by competent evidence. Cf. Dep’t of Transp. v. Gross, 605 A.2d 433, 436
(Pa. Cmwlth. 1991) (“[W]hile the trial court was justified in determining that [the
licensee’s] testimony was credible, it erred by concluding that her testimony was
competent.”).
                                     Conclusion
      Accordingly, we reverse the Trial Court’s Order and direct DOT to reinstate the
18-month suspension of Licensee’s operating privilege.



                                      __________________________________
                                      ELLEN CEISLER, Judge




                                          10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Wayne Shiring                   :
                                     :
      v.                             : No. 1073 C.D. 2018
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :
                  Appellant          :


                                   ORDER


      AND NOW, this 14th day of May, 2019, the Order of the Court of Common
Pleas of Allegheny County, dated July 12, 2018, is hereby REVERSED, and the
Department of Transportation, Bureau of Driver Licensing, is hereby directed to
reinstate the 18-month suspension of John Wayne Shiring’s operating privilege.


                                     ________________________________
                                     ELLEN CEISLER, Judge
