            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jasmine Albright                                :
                                                :
                v.                              :
                                                :
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing,                     :      No. 124 C.D. 2019
                  Appellant                     :      Submitted: August 9, 2019



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                                FILED: November 7, 2019


                The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (DOT) appeals from the January 17, 2019 order of the
Court of Common Pleas of Allegheny County (trial court), which sustained the
statutory appeal of Jasmine Albright (Licensee) from a 12-month suspension of her
operating privilege by DOT pursuant to Section 1547(b)(1)(i) of the Vehicle Code,
75 Pa.C.S. § 1547(b)(1)(i),1 commonly referred to as the Implied Consent Law, as a
      1
          Section 1547(b)(1)(i) provides as follows:

                § 1547. Chemical testing to determine amount of alcohol or
                controlled substance

                ...
result of Licensee’s refusal to submit to chemical testing upon her arrest for driving
under the influence of alcohol or a controlled substance (DUI).2 After review, we
reverse.
                DOT informed Licensee that her operating privilege would be
suspended for 12 months as a result of her refusal to submit to a chemical test of her
breath on October 28, 2017. Licensee appealed to the trial court pursuant to Section
1550(a) of the Vehicle Code, 75 Pa.C.S. § 1550(a),3 and a hearing was held on
January 17, 2019, at which Licensee appeared pro se. See Notes of Testimony,
January 17, 2019 (N.T.); Reproduced Record (R.R.) at 8a-44a.
                Pittsburgh Police Officer Keith Edmonds testified at the hearing. See
N.T. at 4-15; R.R. at 11a-22a. Officer Edmonds testified that he was dispatched by
9-1-1 services to the scene of an automobile crash at 1:17 a.m. on the morning of


                (b) Civil penalties for refusal.—

                   (1) If any person placed under arrest for a violation of section
                   3802 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, the department shall suspend the operating
                   privilege of the person as follows:

                      (i) Except as set forth in subparagraph (ii), for a period
                      of 12 months.

75 Pa.C.S. § 1547(b)(1)(i).
       2
           75 Pa.C.S. § 3802.
       3
           Section 1550(a) of the Vehicle Code provides:

                  Any person . . . whose operating privilege has been . . .
                  suspended . . . by the department shall have the right to appeal
                  to the court vested with jurisdiction of such appeals . . . .

75 Pa.C.S. § 1550(a).

                                                  2
October 28, 2017. N.T. at 5; R.R. at 12a. Upon arriving at the scene, Officer
Edmonds observed a vehicle crashed into a wooded area. N.T. at 7; R.R. at 14a.
Officer Edmonds explained that, when he approached the vehicle, he observed
Licensee, dressed in a bra and no shirt or shoes, sitting alone in the driver’s seat,
revving the vehicle’s engine. N.T. at 7-8; R.R. at 14a-15a. He also observed an
open container of alcohol in the cup holder of the vehicle’s center console. N.T. at
11; R.R. at 18a.
              Officer Edmonds had to help Licensee alight from her vehicle. N.T. at
8; R.R. at 15a. Once Licensee was outside her vehicle, Officer Edmonds noticed a
strong odor of alcohol coming from her person, that she had bloodshot eyes, that her
speech was slurred, and that her balance was off. N.T. at 8-9; R.R. at 15a-16a.
Licensee had no visible cuts, bumps, or bruises, and she declined medical attention.
N.T. at 9; R.R. at 16a. Officer Edmonds arrested Licensee for suspicion of DUI.
N.T. at 10; R.R. at 17a.
              Following the arrest, Officer Edmonds transported Licensee to the
police station. N.T. at 11-12; R.R. at 18a-19a. He explained to Licensee that he was
transporting her to the station where she would undergo a breathalyzer test. N.T. at
12; R.R. at 19a. Once at the station, Officer Edmonds handed Licensee over to
Officer Glenn Aldridge for chemical testing. N.T. at 13; R.R. at 20a.
              Officer Aldridge also testified at the hearing. See N.T. at 16-27; R.R.
at 23a-34a.     Officer Aldridge4 explained that on the evening in question, the
DataMaster DMT breathalyzer machine was functioning, calibrated, and certified

       4
         Officer Aldridge has been a Pittsburgh Police Officer since 1989 and has been certified
to administer blood alcohol concentration breath testing with the DataMaster DMT instrument
since approximately 2003. N.T. at 16-17; R.R. at 23a-24a.



                                               3
for accuracy in accordance with DOT regulations. N.T. at 17; R.R. at 24a. Officer
Aldridge explained that he asked Licensee whether she would submit to a chemical
test of her breath and that she originally refused.5 N.T. at 19; R.R. at 26a. After her
initial refusal, Officer Aldridge read Licensee the DL-26A form verbatim, in its
entirety. N.T. at 20; R.R. at 27a; see also DL-26A Form, R.R. at 42a. The DL-26A
form Officer Aldridge read to Licensee states as follows:

               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.

               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
               3802(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

       5
         Officer Aldridge explained that, after a brief conversation with Licensee during which he
confirmed her information, he conducted paperwork while waiting out a DOT-regulated 20-minute
waiting period. N.T. at 18-19; R.R. at 25a-26a. Officer Aldridge testified that, during the course
of the 20-minute observation period, he did not observe Licensee eat, drink, or regurgitate any
material. N.T. at 19; R.R. at 26a.

                                                4
             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.

DL-26A form, Hearing Exhibit #1, R.R. at 42a. Officer Aldridge testified that he
explained to Licensee that signing the form was not an admission of guilt, but instead
a statement that she understood her rights, and Licensee signed the form. N.T. at
20; R.R. at 27a.
             Officer Aldridge further testified that, after signing the DL-26A form,
Licensee orally agreed to submit to chemical breath testing. N.T. at 21-22; R.R. at
28a-29a. Therefore, Officer Aldridge provided Licensee with information and
instructions regarding the test. N.T. at 22; R.R. at 29a. Officer Aldridge instructed
Licensee that she would have to blow into the machine until he told her to stop, and
that she would be required to successfully complete two valid breath samples in
succession to complete the testing. N.T. at 22; R.R. at 29a.
             On her first try, Officer Aldridge explained, Licensee submitted a valid
sample. N.T. at 22; R.R. at 29a. Officer Aldridge then instructed her to submit a
second valid sample, but she sucked her breath in backward, as opposed to blowing,
which recorded a “suck back” error and aborted the test. N.T. at 23; R.R. at 30a.
Thereafter, Officer Aldridge offered Licensee the opportunity to conduct a second
test, to which Licensee agreed. N.T. at 23; R.R. at 30a. Again, Officer Aldridge
instructed Licensee to blow, not suck back, and that sucking back a second time
would cause the test to abort and be deemed a refusal. N.T. at 23; R.R. at 30a.

                                          5
Despite this instruction and warning, Licensee again sucked back instead of blowing,
which caused the breathalyzer machine to shut down. N.T. at 24; R.R. at 31a.
Officer Aldridge deemed this a refusal. N.T. at 24; R.R. at 31a.
              Officer Aldridge explained that at no time did Licensee inform him of
any breathing issues or difficulties that would have adversely affected her ability to
provide two valid breath samples, and that Licensee did not gasp or wheeze at any
time during the process. N.T. at 25; R.R. at 33a. He further testified that Licensee
never informed him that she did not understand the breath testing requirements,
never asked him to re-read the instructions, and never asked for further explanations
of the testing instructions. N.T. at 26; R.R. at 34a.
              DOT then rested. The trial judge then explained that this case was the
third case to have come before him involving what he regards as a deficient chemical
breath test warning because the DL-26A form did not expressly state that two valid
samples were required to complete the chemical testing. N.T. at 30-33; R.R. at 37a-
40a. The trial court noted that, since the first of these cases, which resulted in the
trial court being overturned by this Court, as discussed infra,6 DOT has changed the
DL-26 form to clearly reflect that two valid samples are required to complete breath
testing. N.T. at 30-31; R.R. at 37a-38a. The trial court then sustained Licensee’s
appeal. N.T. at 32-33; R.R. at 39a-40a. DOT timely appealed to this Court.
              On appeal,7 DOT argues that the trial court abused its discretion and
erred as a matter of law by finding that the DL-26A form was deficient because it


       6
         See Flaherty v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth., No. 635 C.D.
2017, filed May 11, 2018).
       7
         “Our standard of review is limited to determining whether common pleas committed an
error of law, whether common pleas abused its discretion, or whether the findings of fact are

                                               6
did not advise Licensee that she had to successfully give two valid breath samples
to satisfactorily complete a breath test. See DOT’s Brief at 14-21. We agree.
              This Court decided this exact issue on nearly identical facts in Flaherty
v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 635
C.D. 2017, filed May 11, 2018), over which, as previously noted, the same trial court
and judge also presided at the Court of Common Pleas level. Flaherty involved a
statutory appeal of an 18-month license suspension for refusal to submit to chemical
breath testing following an arrest for suspected DUI. Flaherty, slip op. at 2. In
Flaherty, after arresting the licensee on suspicion of DUI after a single car crash,
police read the exact DL-26A form to the licensee as Officer Aldridge read to
Licensee in the instant matter. Id. at 3-5. The testimony also established that the
police officer told the licensee before the testing began that two valid breath samples
would be required to complete the chemical testing. Id. at 4. The licensee then
provided one valid breath sample above the legal limit before failing to submit a
second valid sample. Id. at 5. The police deemed the attempt a refusal and DOT
suspended the licensee’s license. Id. However, the trial court concluded that the
fact that the DL-26A form read to the licensee did not include express language
explaining that a successful chemical test requires two valid breath tests, the licensee
had not been sufficiently warned that her failure to take two breath tests would
constitute a refusal and sustained the licensee’s license suspension appeal. Id. at 6.
              DOT appealed, arguing that the trial court abused its discretion and
erred as a matter of law when it concluded that the DL-26A form had to advise
licensees that they would be required to submit to two breath tests. Flaherty, slip


supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176
A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).

                                               7
op. at 6-8. This Court reversed and reinstated the licensee’s license suspension. Id.
at 15. In addressing the merits, this Court explained as follows:

             Section 1547(a) of the Vehicle Code provides, in relevant
             part:

               (a) General Rule.--Any person who drives,
               operates or is in actual physical control of the
               movement of a vehicle in this Commonwealth shall
               be deemed to have given consent to one or more
               chemical tests of breath or blood for the purpose of
               determining the alcoholic content of blood or the
               presence of a controlled substance if a police officer
               has reasonable grounds to believe the person to have
               been driving, operating or in actual physical control
               of the movement of a vehicle in violation of section .
               . . 3802 (relating to driving under influence of alcohol
               or controlled substance) . . . .

             75 Pa. C.S. § 1547(a) (emphasis added). If a licensee
             refuses to submit to a request for chemical testing, the
             testing shall not be conducted, but DOT shall suspend the
             operating privilege of the licensee, in this case, for 18
             months. 75 Pa. C.S. § 1547(b). Section 1547(b)(2)(i) of
             the Vehicle Code requires an officer to inform the
             licensee, as relevant here, that her “operating privilege will
             be suspended upon refusal to submit to chemical
             testing.” 75 Pa. C.S. § 1547(b)(2)(i) (emphasis
             added). Section 1547 of the Vehicle Code does not require
             that two breath tests be administered, nor require an officer
             to inform a licensee that two breath tests will be
             required. DOT, however, was directed to promulgate
             Section 77.24 of DOT’s regulations pursuant to “the
             legislative mandate of 75 Pa. C.S. § 1547(c)(1),” Bush v.
             Commonwealth, 535 A.2d 754, 755 (Pa. Cmwlth.
             1988), which provides, in relevant part, that “[c]hemical
             tests of breath shall be performed on devices approved by
             the Department of Health using procedures prescribed
             jointly by regulations of the Departments of Health and
                                           8
Transportation,” 75 Pa. C.S. § 1547(c)(1). Section
77.24(b) of DOT’s regulations in turn, sets forth that “[t]he
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(b). DOT’s regulations do not
require an officer to inform a licensee that she will have to
submit to two breath tests, and DOT Form DL-26A does
not contain this information.

In order to suspend Licensee’s operating privilege for
refusing to submit to a chemical test of her breath, DOT
had to prove that:

  (1) Licensee was arrested for violating Section 3802
  of the Vehicle Code by a police officer who had
  “reasonable grounds to believe” that Licensee was
  operating or was in actual physical control of the
  movement of a vehicle while in violation of Section
  3802 (i.e., while driving under the influence); (2)
  Licensee was asked to submit to a chemical test; (3)
  Licensee refused to do so; and (4) Licensee was
  specifically warned that a refusal would result in the
  suspension of [her] operating privileges and would
  result in enhanced penalties if [s]he was later
  convicted of violating Section 3802(a)(1).

Martinovic v. Dep’t of Transp., Bureau of Driver
Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). The only
warnings required to be given to a licensee are those
contained in Section 1547(b)(2) of the Vehicle Code and
by our Supreme Court in [Dep’t of Transp., Bureau of
Traffic Safety v.] O’Connell [555 A.2d 873, 878 (Pa.
1989)]. Negovan v. Dep’t of Transp., Bureau of Driver
Licensing, 172 A.3d 733, 736 (Pa. Cmwlth. 2017) (stating
that “there is no constitutional requirement for a police
officer to provide any implied consent warnings to a driver
arrested for DUI”). Section 1547(b)(2) of the Vehicle
Code does not require that the implied consent warnings
contain any specific wording. Yourick v. Dep’t of Transp.,
                             9
             Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa.
             Cmwlth. 2009). Rather, the warnings “must merely
             ‘inform’ a licensee that his/her ‘operating privilege will be
             suspended upon refusal to submit to chemical
             testing.’” Id. (quoting 75 Pa. C.S. § 1547(b)(2)(i)). Once
             DOT satisfies its burden of proof, the burden shifts to the
             licensee to prove that she was incapable of making a
             knowing and conscious refusal or that she was physically
             unable to take the test. Kollar v. Dep’t of Transp., Bureau
             of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).

Flaherty, slip op. at 10-12 (emphasis in original; footnote omitted).
             Additionally, the Flaherty Court noted precedent dating back over 30
years that held that “the applicable statutes and regulations reveal no requirement
that an officer warn a licensee, before testing begins, that two breath tests are
required by [DOT’s] regulations. Section 1547(b)(2) requires only that an officer
warn that operating privileges ‘will be suspended upon refusal to submit to chemical
testing.’” Flaherty, slip op. at 12-13 (quoting Dep’t of Transp., Bureau of Driver
Licensing v. Viglione, 537 A.2d 375, 377 (Pa. Cmwlth. 1988)) (emphasis in
original). The Court further explained that this precedent has established that no
meaningful distinction exists between “a warning that two breath tests are required
before any test is administered, as the trial court mandated, and the officer’s clear
warning that a second test was required following the administration of the first
test.” Id. at 13 (quoting Viglione, 537 A.2d at 377).
             The Flaherty Court then determined that the record established that
DOT met its prima facie burden of proof to show that the licensee refused to submit
to chemical testing after being specifically warned that such a refusal would result
in a suspension of her operating privileges where: (1) there was no question the
licensee was arrested for DUI and asked to submit to chemical testing; (2) the


                                          10
licensee did not challenge, and the trial court did not discredit, the police testimony
that licensee was orally informed that she would need to submit to two breath tests;
(3) the licensee provided an initial breath test but failed to provide a second sufficient
breath sample during the second test, which constituted a per se refusal under the
law. See Flaherty, slip op. at 13-14. The Flaherty Court noted that, because DOT
had met its burden, the burden shifted to the licensee to show that her refusal was
not knowing and conscious or that she was physically unable to take the test. Id. at
14. The Flaherty Court then reversed the trial court because the licensee failed to
carry this burden. Id.
                Finally, in reversing the trial court, this Court expressly stated, “[w]e
cannot agree with [the l]icensee’s claim that because DOT Form DL-26A refers to
“a chemical test” and “the breath test,” and not two breath tests, that [the licensee]
was somehow misled into consenting to testing.” Flaherty, slip op. at 14 (emphasis
in original).
                The facts and arguments presented in the instant matter are nearly
indistinguishable to those presented and decided by this Court in Flaherty. Like
Flaherty, this case involves a one-car accident, after which the police read Licensee
the DL-26A form verbatim while also verbally explaining that a successful breath
test would require two valid breath samples. As in Flaherty, Licensee then provided
one valid breath test before causing an error in the testing instrument that police
construed as a refusal. The trial court then sustained the instant appeal based on the
argument that the DL-26A form provided a deficient warning because it seemingly
referred to a single chemical test (“a chemical test” and “the breath test”), as opposed
to stating that a successful chemical test required Licensee to provide two valid
breath samples. See Trial Court Opinion at 5-6. This is the exact argument this


                                            11
Court previously examined and expressly rejected in Flaherty. See Flaherty, slip
op. at 14. DOT herein makes the same arguments it forwarded in Flaherty.
Therefore, given the identical nature of the facts and arguments presently before us,
and based on the longstanding law cited and the reasons stated in Flaherty, we find
that the trial court erred in sustaining Licensee’s appeal.
             Accordingly, we reverse the trial court’s order and reinstate DOT’s 12-
month suspension of Licensee’s operating privilege.




                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jasmine Albright                     :
                                     :
            v.                       :
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing,          :   No. 124 C.D. 2019
                  Appellant          :



                                 ORDER


            AND NOW, this 7th day of November, 2019, the January 17, 2019
order of the Court of Common Pleas of Allegheny County is REVERSED, and the
12-month suspension of Jasmine Albright’s operating privilege is REINSTATED.



                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
