            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jonathan Fernandez-Solano,                        :
                 Appellant                        :
                                                  :
               v.                                 :
                                                  :
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :   No. 1731 C.D. 2019
Bureau of Driver Licensing                        :   Submitted: May 29, 2020


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: August 21, 2020

               Jonathan Fernandez-Solano (Fernandez-Solano) appeals from the June
19, 2019 order of the Court of Common Pleas of Philadelphia County (trial court)
affirming the 12-month suspension of his operating privilege by the Department of
Transportation (Department), Bureau of Driver Licensing (Bureau), due to his
refusal to submit to a chemical test.1 Upon review, we affirm.
               The Bureau notified Fernandez-Solano on February 15, 2017, that his
operating privilege would be suspended for refusing to submit to a chemical test on
January 30, 2017. Licensee appealed the Bureau’s decision to the trial court, which


       1
          Section 1547(a) and (b) of the Vehicle Code, 75 Pa.C.S. § 1547(a) & (b), commonly
referred to as the Pennsylvania Implied Consent Law, provides that the Department must suspend
a licensee’s operating privilege for a period of at least 12 months if he or she refuses to consent to
a police officer’s request to submit to chemical testing. See also Dep’t of Transp., Bureau of
Driver Licensing v. Scott, 684 A.2d 539, 541 n.4 (Pa. 1996).
held a de novo hearing on the matter on June 19, 2019. At the hearing, the Bureau
presented the testimony of Philadelphia Police Officers Ruth Colon and Nicholas
Polini. The officers testified to the following events.
               Before 5:00 a.m. on January 30, 2017, Officer Colon found Fernandez-
Solano asleep in the driver’s seat of his vehicle. Reproduced Record (R.R.) 15a-
16a. The vehicle was in drive with the engine running, the lights were on, and the
vehicle was facing the wrong direction on a one-way street. Id. at 15a. Fernandez-
Solano awoke “confused” and “dazed” when Officer Colon tapped the window. Id.
While Officer Colon was waking Fernandez-Solano, another officer entered the
passenger side of the vehicle and placed the vehicle in park. Id. Officer Colon
observed that Fernandez-Solano had red glassy eyes, slurred speech, smelled like
alcohol, and his clothes were disheveled. Id. After Fernandez-Solano exited his
vehicle he was not able to stand straight, was leaning on the vehicle, and required
assistance to get into the officer’s vehicle. Id. Officer Colon placed Fernandez-
Solano under arrest for suspicion of driving under the influence pursuant to Section
3802 of the Vehicle Code, 75 Pa.C.S. § 3802,2 and he was taken to the Police
Detention Unit (PDU) for chemical testing. R.R. at 16a.
               When Fernandez-Solano arrived at the PDU, he was brought to Officer
Polini, who performs chemical testing on persons suspected of driving under the
influence. Id. Officer Polini read Fernandez-Solano the Implied Consent warnings,
known as the refusal warnings, from the Department’s DL-26 form. Id. Similar to


       2
         Section 3802 prohibits driving under the influence of alcohol or a controlled substance.
Of relevance here, Section 3802(a) provides that “an individual may not drive, operate or be in
actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol
such that the individual is rendered incapable of safely driving, operating or being in actual
physical control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a).

                                                2
Officer Colon, Officer Polini observed that Fernandez-Solano had “red, glassy,
bloodshot eyes,” an “unsteady gait,” and an “odor of alcohol coming from his
breath.” Id. at 17a. After reading the warnings, Fernandez-Solano agreed to take a
breath test. Id. Officer Polini provided Fernandez-Solano with instructions on how
to give a breath sample and showed him how to give a proper sample using the
mouthpiece. Id. For the test to work, Officer Polini explained that the subject must
provide one continuous breath in the mouthpiece and “take a deep breath, hold it,
and blow steadily” until he tells him to stop. Id. Officer Polini stated that he needs
two accurate breath samples to complete the test. Id.
             Officer Polini testified that a continuous breath is necessary for an
accurate sample and Fernandez-Solano did not blow enough continuous air into the
instrument for him to process the breath test.        Id.   Officer Polini stated that
Fernandez-Solano “would begin to blow, and then he would stop.” Id. Officer Polini
was not able to obtain an accurate sample as reflected by the breath ticket printout,
which indicated that an “insufficient sample [was] given.” Id. at 18a; Original
Record at 46. Officer Polini explained that the machine is checked for accuracy
every day and the machine was functional when he administered Fernandez-
Solano’s test. R.R. at 18a. When the machine registered Fernandez-Solano’s sample
as insufficient, Officer Polini deemed it a “refusal” to submit to the breath test. Id.
             Officer Polini further testified that at the time of testing, he did not
inquire or know whether Fernandez-Solano suffered from any disease or medical
condition that would have prevented him from giving a breath sample. Id. at 19a.
Officer Polini did not ask Fernandez-Solano about his medical conditions prior to
administering the test, but indicated that if Fernandez-Solano had disclosed to him a
medical condition, he would have noted it. Id. Other than failing to give a sufficient


                                           3
breath sample, Officer Polini stated that Fernandez-Solano was “cooperative and
compliant.” Id.
               After the officers finished testifying, the trial court admitted into
evidence the following documents: certified copies of the Department’s operating
privilege suspension, the Implied Consent warnings signed by Officers Colon and
Polini, Fernandez-Solano’s driving history, Fernandez-Solano’s signed consent
form to submit to the breath test, and the breath ticket printout indicating an
insufficient sample was given. Id. Fernandez-Solano rested without testifying or
presenting any additional evidence. Id.
               Based on the foregoing, the trial court concluded that the Bureau met
its burden of proof to support the operator license suspension. Id. The trial court
explained that “there [were] reasonable grounds for the arrest,” the “officers testified
credibly,” and “Officer Polini was not able to get a sufficient sample.” Id. The trial
court entered an order denying and dismissing Fernandez-Solano’s appeal, and
reinstating the suspension. Trial Court Order dated 6/19/19. Fernandez-Solano
timely appealed the trial court’s order to the Superior Court, which transferred the
matter to this Court. See Superior Court Order dated 10/29/19. The trial court
subsequently filed an opinion supporting its order. See Trial Court’s Pa.R.A.P.
1925(a) Opinion dated 10/10/19.
               Before this Court,3 Fernandez-Solano contends that the trial court erred
when it affirmed his operating privilege suspension because the Bureau did not

       3
           In cases involving an operating privilege suspension for refusal to take a breathalyzer
test, this Court’s review is limited to determining whether the trial court’s findings are supported
by competent evidence, whether an error of law has been committed, or whether the trial court’s
decision demonstrates a manifest abuse of discretion. Dep’t of Transp., Bureau of Traffic Safety
v. Korchak, 483 A.2d 1360, 1362 (Pa. 1984). Questions of credibility and conflicts in evidence
are for the trial court to resolve. Id.

                                                 4
present sufficient evidence to support a finding that he refused to submit to the
breathalyzer test.4 Fernandez-Solano’s Brief at 9. To support a one-year suspension
of an operating privilege, the Bureau must prove that the licensee (1) was arrested
for driving under the influence in violation of 75 Pa.C.S. § 3802 by a police officer
who had reasonable grounds to believe that he was operating or was in actual
physical control of the movement of a vehicle while under the influence; (2) was
asked to submit to a chemical test; (3) refused to do so; and (4) was specifically
warned that a refusal would result in the suspension of his operating privilege. Dep’t
of Transp., Bureau of Driver Licensing v. Boucher, 691 A.2d 450, 453 (Pa. 1997);
Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.
Cmwlth. 2005). Once the Bureau’s burden is met, the licensee then must show that
he was “physically incapable of completing the breath test” or his refusal was “not
knowing and conscious.” Martinovic, 881 A.2d at 34.
              Here, Fernandez-Solano argues that the Bureau failed to demonstrate
that he unequivocally refused to submit to the breath test and that Officer Polini did
not testify that he willfully attempted to subvert the test. That is not the standard for
a refusal. To the contrary, “[i]t is well established that anything other than an
unqualified, unequivocal assent to a chemical test constitutes a refusal.”
Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1097
(Pa. Cmwlth. 2013) (quoting Bomba v. Dep’t of Transp., Bureau of Driver
Licensing, 28 A.3d 946, 951 (Pa. Cmwlth. 2011)) (emphasis added).
              The trial court concluded that the Bureau presented sufficient evidence
to support a finding that Fernandez-Solano “refused” the breath test because he did


       4
         The issue of whether there was a refusal is a question of law reviewable by this Court.
Mueller v. Dep’t of Transp., Bureau of Driver Licensing, 657 A.2d 90, 92 (Pa. Cmwlth. 1995).

                                               5
not “blow enough air into the instrument for [Officer Polini] to process the breath
test.” Trial Court’s Opinion at 3, 5-7. Failure to supply a sufficient breath sample
has repeatedly been deemed a refusal to submit to testing. Boucher, 691 A.2d at
454; Quick v. Dep’t of Transp., Bureau of Driver Licensing, 915 A.2d 1268, 1271
(Pa. Cmwlth. 2007); Mueller v. Dep’t of Transp., Bureau of Driver Licensing, 657
A.2d 90, 94 (Pa. Cmwlth. 1995); Dep’t of Transp., Bureau of Traffic Safety v.
Mumma, 468 A.2d 891, 892 (Pa. Cmwlth. 1983) (providing that a “refusal need not
be expressed in words, but can be implied from a [licensee’s] actions . . . [and] a
[licensee’s] failure to provide sufficient air to permit the test to be made is
tantamount to a refusal . . . even where the [licensee] has expressed consent to the
test”). Moreover,

             [a] refusal may be established where the breathalyzer
             administrator credibly testifies the licensee did not provide
             sufficient breath.    Alternatively, [the Bureau] may
             establish a refusal by presenting a printout from a
             properly[-]calibrated breathalyzer indicating a ‘deficient
             sample.’
Giannopoulos, 82 A.3d at 1097 (citing Reinhart v. Dep’t of Transp., Bureau of
Driver Licensing, 954 A.2d 761, 766 (Pa. Cmwlth. 2008)).
             The Bureau presented evidence of both in the present case. Officer
Polini credibly testified as follows:

             Q. [Bureau counsel] Did [Fernandez-Solano] even begin
             to blow?

             A. [Officer Polini] He would begin to blow, and then he
             would stop.

             Q. You need what type of breath?

             A. I do not understand what --

                                          6
             Q. Are there intervals or is it continuous?

             A. I need one continuous breath. That is why I advise them
             to take a deep breath, hold it, and blow steadily until I tell
             you [sic] to stop.

             Q. On this occasion, what did [Fernandez-Solano] do?

             A. He did not blow enough air into the instrument for me
             to process the breath test.

             Q. How do you know that?

             A. Because the instrument will tell me it is an insufficient
             sample.

             Q. If you look at C-3, what is C-3?

             A. A breath ticket that’s printed out from the instrument.

             Q. You are familiar with these tickets.

             A. I am.

             Q. Is this the ticket for this occasion for [Fernandez-
             Solano]?

             A. It is.

R.R. at 17a-18a. Officer Polini explained that the breathalyzer used to administer
Fernandez-Solano’s test had been checked for accuracy and was operating properly
on that day. Id. at 18a. The breath ticket produced by the breathalyzer, and admitted
into evidence, shows that Fernandez-Solano failed to provide a sufficient breath
sample. See Ex. C-3. Specifically, the breath ticket shows that Fernandez-Solano
provided an “air blank” at 4:37 a.m., and an “air blank” at 4:38 a.m., and the samples
were deemed insufficient at 4:42 a.m. Id.



                                           7
             Nevertheless, Fernandez-Solano contends that Officer Polini did not
give him “sufficient time to complete the test,” and submits that it was “Officer
Polini’s impatience” with him rather than Fernandez-Solano’s “recalcitrance that
caused the refusal.” Fernandez-Solano’s Brief at 9, 14, 15. There is no evidence in
the record to support these assertions. To the contrary, Officer Polini explained to
Fernandez-Solano how to take the test, showed him how to use the mouthpiece on
the machine, and then administered the breath test. R.R. at 17a. Officer Polini
testified:

             Q. [Bureau counsel] When you brought [Fernandez-
             Solano] [in] to take the breath test, what was your
             procedure on that day? What did you do? Did you provide
             any instructions?

             A. [Officer Polini] Yes. I have the same routine for every
             test I give. I actually show use of the mouthpiece and
             demonstrate how to properly give me a breath sample.

             Q. On this date with [Fernandez-Solano], and with other
             subjects, can you demonstrate what someone is supposed
             to do?

             A. I advise the subject to take a deep breath, and hold it
             and make a tight seal around the mouthpiece, and blow
             until I tell you to stop. I need to get enough air for it to
             process.

             Q. How many times does a subject have to blow?

             A. I need two accurate breath samples.

             Q. On this occasion, did you provide those instructions to
             [Fernandez-Solano]?

             A. Correct.

                                          8
             Q. What did he do with respect to the test?

             A. He did not provide me with an accurate sample.

Id. Officer Polini stated that if someone is continuously breathing into the machine,
it would be an accurate sample. Id. at 18a. Officer Polini further testified that he
needed two samples and he would take the lower of the two to give the subject the
“benefit of the doubt.” Id.; see also 67 Pa. Code § 77.24(b)(1) (stating that the
procedure for alcohol breath testing shall include “two consecutive actual breath
tests, without a required waiting period between the two tests”); Lucas v. Dep’t of
Transp., Bureau of Motor Vehicles, 854 A.2d 639, 643 (Pa. Cmwlth. 2004)
(explaining that a “test” as provided under the regulation is a breath sample, that is,
the licensee must provide two breath samples).
             Though Fernandez-Solano argues that he “made a good faith effort” to
provide the sample before Officer Polini stopped the test,” Fernandez-Solano’s Brief
at 14, a licensee’s effort is not determinative. “[F]ailure 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) (citing Dep’t of Transp., Bureau of Driver
Licensing v. Kilrain, 593 A.2d 932 (Pa. Cmwlth. 1991)) (emphasis added); see also
Dep’t of Transp. v. Berta, 549 A.2d 262, 263-64 (Pa. Cmwlth. 1988). Though
Officer Polini testified that Fernandez-Solano was “otherwise cooperative and
compliant,” this is not sufficient to excuse his failure to provide an adequate breath




                                          9
sample at the time of testing. See Giannopoulos, 82 A.3d at 1097; Kilrain, 593 A.2d
at 935.5
               Lastly, Fernandez-Solano contends that the Bureau did not meet its
burden of showing a refusal because Officer Polini did not ask him whether he
suffered from a “medical condition that prevented him from completing the
breathalyzer,” or ascertain “whether his failure to perform the breathalyzer stemmed
from a physical inability to perform the test.” Fernandez-Solano’s Brief at 9 & 12.
Fernandez-Solano asserts that he was “physically incapable of participating [in] and
completing a breathalyzer test,” and his “inability” to provide sufficient breath
stemmed from a physical condition. Id. at 13. However, the burden was not on
Officer Polini to ascertain whether Fernandez-Solano had a medical condition at the
time of testing.
               “It is well settled that a licensee has a duty to inform the police officer
of any known medical condition that is not obvious and may affect the licensee’s
ability to perform the requested chemical test.” Conrad v. Dep’t of Transp., Bureau
of Driver Licensing, 226 A.3d 1045, 1054 (Pa. Cmwlth. 2020); see also Mueller,
657 A.2d at 94-95. Not only does the licensee have to inform the police officer of
the medical condition at the time of testing, the licensee must also produce
competent medical evidence of the condition to support a finding that the licensee

       5
           While not specifically cited with respect to Fernandez-Solano’s “good faith effort”
argument, we note that this Court’s decision in Bomba v. Department of Transportation, Bureau
of Driver Licensing, 28 A.3d 946 (Pa. Cmwlth. 2011), is distinguishable. In that case, the officer
administering the breath test admitted that the licensee was polite and cooperative, consented to
the breath test, was only provided one attempt to take the test and, after being told her breath
sample was inadequate, she immediately asked to try again. The licensee in Bomba also testified
on her own behalf, stating that she “messed up” because she was nervous and stressed due to being
arrested, and the trial court found her to be credible. Id. at 950-51. Moreover, the licensee’s
request to take a second test in Bomba was made well within the two-hour window following her
arrest, so there was no danger a second test would have produced an inaccurate result. Based on
those specific facts, we determined that the licensee had not refused to consent to chemical testing.
                                                10
was unable to take the test for medical reasons. Id. A simple declaration by a
licensee that he is physically unable to perform a breath test, absent medical proof
of his incapacity, will not justify his refusal to meet the statutory demands of his
privilege. Dep’t of Transp., Bureau of Traffic Safety v. Kelly, 335 A.2d 882, 885
(Pa. Cmwlth. 1975).
             Here, the trial court observed that “[a]t no point before or during the
testing, did [Fernandez-Solano] inform Officer Polini of any health conditions that
would prevent him from providing an accurate breath sample.” Trial Court’s
Opinion at 5.    In addition, Fernandez-Solano decided not to present medical
testimony before the trial court as to “whether or not he was incapable, through some
physiological reason, of not [sic] giving a full sample.” R.R. at 20a; see Pappas v.
Dep’t of Transp., Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth.
1996) (providing that once the Bureau presents evidence that the licensee failed to
provide a sufficient breath sample, refusal is presumed and the burden of proof shifts
to the licensee to establish by competent medical evidence that he or she was
physically unable to perform the test). Because Fernandez-Solano has not identified
the medical condition that prevented him from providing a breath sample and opted
not to present any medical evidence, he cannot meet his burden of showing that he
was unable to take the breath test for medical reasons.
             Based on the foregoing, we affirm the trial court’s order denying and
dismissing Fernandez-Solano’s appeal and reinstating the suspension of his
operating privilege.


                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge



                                         11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jonathan Fernandez-Solano,           :
                 Appellant           :
                                     :
           v.                        :
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :   No. 1731 C.D. 2019
Bureau of Driver Licensing           :


                                ORDER


           AND NOW, this 21st day of August, 2020, the June 19, 2019 order of
the Court of Common Pleas of Philadelphia County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
