           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arnell Alan Cobb,                              :
                                               : No. 2644 C.D. 2015
                             Appellant         : Submitted: October 21, 2016
                                               :
                     v.                        :
                                               :
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing                     :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: December 12, 2016



              Arnell Alan Cobb (Licensee) appeals the order of the Luzerne County
Court of Common Pleas (trial court) dismissing his statutory appeal from an 18-
month suspension of his operating privileges imposed by the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department) under Section 1547(b)(1)(ii) of the Vehicle Code,1 and from a 1-year

       1
         75 Pa. C.S. §1547(b)(1)(ii). Section 1547(b)(1)(ii) sets forth the following penalties
that may be imposed if a licensee refuses to consent to chemical testing to determine his blood
alcohol content:

              (b) Suspension 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
(Footnote continued on next page…)
disqualification of his privilege to drive a commercial motor vehicle under Section
1613(d.1),2 based on his refusal to submit to chemical testing in connection with
his arrest for violating Section 3802 of the Vehicle Code3 (relating to driving under
the influence (DUI) of alcohol or controlled substance). We affirm.



(continued…)

                testing shall not be conducted but upon notice by the police officer,
                the department shall suspend the operating privilege of the person
                as follows:

                                                ***

                (ii) For a period of 18 months if any of the following apply:

                                                ***

                (B) The person has, prior to the refusal under this paragraph, been
                sentenced for:

                (I) an offense under section 3802[.]

Licensee’s Certified Driving Record shows that he had been previously sentenced for violating
Section 3802 at the time of his refusal. Reproduced Record (R.R.) at 62a, 80a.

       2
           75 Pa. C.S. §1613(d.1). Section 1613(d.1) states, in relevant part, that “[u]pon receipt
of a report of test refusal, the department shall disqualify the person who is the subject of the
report for the same period as if the department had received a report of the person’s conviction
for violating one of the offenses listed in Section 1611(a).” In turn, Section 1611(a)(1) provides,
in pertinent part, that “[u]pon receipt of a report of conviction the department shall, in addition to
any other penalties imposed under this title, disqualify any person from driving a commercial
motor vehicle or school vehicle for a period of one year for the first violation of . . . section
3802 . . . .” 75 Pa. C.S. §1611(a)(1). Licensee’s Certified Driving Record shows that he did not
have a commercial license at the time that he was previously convicted for violating Section
3802. R.R. at 62a, 80a.

       3
           75 Pa. C.S. §3802.


                                                  2
               On August 10, 2015, Licensee was arrested by an officer with the
Wilkes-Barre Police Department on suspicion of DUI and was asked to submit to a
breathalyzer test which would be used to determine his blood alcohol content.
However, after he was given the implied consent and O’Connell4 warnings
provided on the Department’s Form DL-26,5 Licensee refused to provide a breath
sample.

       4
          See Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d
873, 878 (Pa. 1989) (“[W]here an arrestee requests to speak to or call an attorney, or anyone else,
when requested to take a breathalyzer test, we insist that in addition to telling an arrestee that his
license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct
the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not
have the right to consult with an attorney or anyone else prior to taking the test.”).

       5
          The DL-26 form contains the implied consent warnings required by Section 1547 of the
Vehicle Code and O’Connell. The form advises police officers to read the following warnings in
their entirety to a motorist:

               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
               (blood, breath, or urine. The arresting officer chooses the chemical
               test).

               3. If you refuse to submit to the chemical 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’ll be suspended for up to 18
               months. In addition, if you refuse to submit to the chemical test
               and you’re 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
(Footnote continued on next page…)
                                                  3
               As a result, Licensee received notice from the Department that his
operating privilege was suspended for a period of 18 months pursuant to Section
1547(b)(1)(ii) of the Vehicle Code, and he was disqualified from operating a
commercial vehicle for 1 year pursuant to Section 1613(d.1), for his refusal to
submit to testing. Licensee appealed the license suspension to the trial court.
               At the hearing in the trial court, the Department entered into the
record Licensee’s Certified Driving record. The parties also stipulated that the
Department had sustained its initial burden of demonstrating that his operating
privilege should be suspended under Section 1547 by showing that he: (1) was
arrested for DUI by a police officer who had reasonable grounds to believe that he
was operating or was in actual physical control of the movement of the vehicle
while under the influence of alcohol in violation of Section 3802; (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
was later convicted of violating Section 3802. See Martinovic v. Department of
Transportation, 881 A.2d 30, 34 (Pa. Cmwlth. 2005).



(continued…)

               $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 the 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 chemical
               testing, you will have refused the test.

R.R. at 71a.


                                               4
                Licensee did not testify, but argued that he did not make a knowing
and conscious decision to refuse the chemical testing because he was physically
incapable of submitting to the chemical testing of his breath because he suffers
from an obstructive lung disease. In support, Licensee presented the testimony of
Cathy L. Young, M.D. (Dr. Young), a physician board certified in internal
medicine, pulmonary medicine, and critical care medicine, who was qualified as an
expert in pulmonology. N.T.6 at 3-4. As the trial court found:

                      Dr. Young indicated she examined [Licensee] on
                August 27, 2015, seventeen days after his arrest on
                August 10, 2015. She determined he needed to undergo
                pulmonary function testing which was conducted on that
                date and “showed that he had moderately severe
                obstructive lung disease. He had normal lung volumes
                and normal diffusion capacity.         These tests show
                basically an obstructive lung disease because of the
                reversibility with the bronchodilator most consistent with
                asthma.” (N.T. [at] 5).

                      The witness was asked whether that kind of
                ailment or disease would prevent him from being able to
                expel volumes of air required for a breath test. Dr.
                Young responded, “If someone was having a significant
                asthma exacerbation at the time, he could not have blown
                hard enough in the device to get a reading.” ([Id.]).

                      The doctor further testified that [Licensee] had a
                follow up appointment the week before the hearing and
                was placed on Symbicort and also given a rescue inhaler.

                      During cross-examination, the physician was asked
                whether [Licensee] related what happened on August 10,
                2015, and responded, “He basically said to me at that
                time he felt he could not blow into the machine and he
                was having difficulty with his breathing.” ([Id. at] 6).

      6
          “N.T.” refers to the transcript of the trial court hearing.


                                                   5
                    When asked whether alcohol would affect the
             Licensee’s ability to make a significant or sufficient
             sample of his breath the expert responded, “It might from
             a mental standpoint make it difficult for him to do the test
             properly, but given enough tries it’s not going to mess up
             his airflow to be able to do the test.” ([Id. at] 7).

                    When specifically asked whether the doctor knew
             if [Licensee] was having an episode or a pulmonary event
             on August 10, 2015, she replied, “I do not know. I was
             not there.” The witness was next asked whether she
             could render an opinion within a reasonable degree of
             medical certainty that alcohol consumption was not a
             contributing factor to [Licensee]’s inability to make a
             sufficient sample, and replied, “Simply as a
             pulmonologist I can’t say anything about that.” ([Id.]).
Trial Court 3/4/16 Opinion at 6-7.
             The trial court denied Licensee’s appeal, explaining that it rejected
Licensee’s expert testimony because it was “equivocal” and “insufficient to
establish a knowing and conscious refusal.” Trial Court 3/4/16 Opinion at 8.
Regarding Dr. Young’s testimony, the trial court noted “that she did not rule out
alcohol as a contributing factor to the licensee’s inability to offer a knowing and
conscious refusal,” and that she “related no history taken from the licensee, no
identification of or review of any of his medical records and no examination of any
investigative report or probable cause affidavit.” Id. The trial court concluded that
“[t]he record in the instant matter clearly establishes, by stipulation, that [the
Department] satisfied the four criteria to suspend the operating privilege of
[Licensee] pursuant to Section 1547,” and that “the evidence offered by [Licensee]
is categorically insufficient in establishing that he was unable to provide a knowing
and conscious refusal to submit to chemical testing.” Id. As a result, the trial court
issued the instant order dismissing Licensee’s statutory appeal.


                                          6
               On appeal,7 Licensee argues that his operating privileges should be
reinstated because Dr. Young’s unequivocal and competent medical testimony
showed that he was physically unable to submit to the requested breath test due to
his pulmonary disease and, as a result, his refusal was not knowing and conscious.
Alternatively, Licensee asserts that the trial court erred in failing to find facts
relating his physical inability to perform the test.
               Once the Department’s burden is met under Section 1547, a licensee
may avoid the mandatory license suspension by proving that:                         (1) he was
physically incapable of completing the requested testing; and (2) his refusal was
not knowing and voluntary. Martinovic, 881 A.2d at 34.8 Additionally, a licensee
has a duty to inform the police of any known medical conditions that are not
obvious which affects his ability to perform a chemical test.                        Whistler v.
Department of Transportation, Bureau of Driver Licensing, 882 A.2d 537, 540
(Pa. Cmwlth. 2005); Finney v. Department of Transportation, Bureau of Driver
Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). The purpose of this notification

       7
          This Court’s scope of review is limited to determining whether necessary findings of the
trial court are supported by substantial evidence and whether the trial court committed an error of
law or abused its discretion. Martinovic, 881 A.2d at 34 n.6. As the fact finder, the trial court
makes the necessary credibility determinations and may accept or reject the testimony of any
witness in whole or in part; its determinations in this regard are not subject to our review.
Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 423 (Pa.
Cmwlth. 1998).

       8
         See also Marinaro v. Department of Transportation, Bureau of Driver Licensing, 703
A.2d 1066, 1068 (Pa. Cmwlth. 1997) (“Dr. Singer testified on cross-examination that Licensee
suffered from symptoms of epigastric discomfort which included abdominal pain, excess
secretion of acidic substances, chest pain and shortness of breath at the time he was requested to
submit to chemical testing. The doctor testified that all of these conditions were manifestations
of Licensee’s medical condition of hyperventilation, a stress-induced condition. . . . Dr. Singer’s
testimony was unequivocal, and it established the requisite nexus between Licensee’s medical
condition and his inability to complete the required testing.”).


                                                7
requirement is so that an alternative form of chemical testing that the licensee
could perform can be administered. Berman v. Department of Transportation,
Bureau of Driver Licensing, 842 A.2d 1025, 1027-28 (Pa. Cmwlth. 2004). Where
a licensee fails to inform the police officer administering the breathalyzer 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. Department of Transportation, 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. The only exception under which a licensee is not precluded from
relying on such condition as an affirmative defense is where “he did not know that
he had a condition which affected his ability to produce enough breath to complete
the breathalyzer test.” Bridges v. Department of Transportation, Bureau of Driver
Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000).9
                 Although Dr. Young testified that Licensee could not have blown hard
enough in the breathalyzer to get a reading if he was “having a significant asthma
exacerbation at the time” of testing,10 Licensee did not present any competent


       9
          In Bridges, a refusal was recorded after the licensee had attempted to perform the
breathalyzer test on several occasions, but stopped each time stating that he could not complete
it. 752 A.2d at 458. The circumstances underlying Licensee’s refusal in the instant matter are
not part of the certified record so there is no indication whether Licensee attempted to comply
with the officer’s request to submit to the breathalyzer test or whether he refused outright to
comply.

       10
            N.T. at 5.


                                               8
evidence that he was experiencing such an exacerbation at the time of testing; that
he communicated such to the officer administering the test; or that he was unaware
of his pulmonary disease at that time. In the absence of such evidence, Licensee
was precluded from presenting Dr. Young’s testimony to establish that he suffered
from the pulmonary disease or relying upon it as an affirmative defense to the
suspension and disqualification based upon his refusal to submit to the breathalyzer
test.11 As a result, the trial court did not err in determining that Licensee failed to
sustain his burden of proving that he was physically incapable of completing the
requested testing at the time of testing and that his refusal at that time was not
knowing and voluntary.12
              Accordingly, the trial court’s order is affirmed.




                                           MICHAEL H. WOJCIK, Judge




       11
           Moreover, unlike the medical testimony in Marinaro, Dr. Young’s testimony does not
establish the required nexus between Licensee’s medical condition and his inability to complete
the required testing because Dr. Young could not state whether Licensee was having an episode
or a pulmonary event at the time of testing. See N.T. at 7.

       12
          This Court may affirm the trial court’s order on any basis appearing in the record.
Wright v. Department of Transportation, 596 A.2d 1241, 1246 (Pa. Cmwlth. 1991), appeal
denied, 607 A.2d 258 (Pa. 1992).


                                              9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arnell Alan Cobb,                       :
                                        : No. 2644 C.D. 2015
                         Appellant      :
                                        :
                    v.                  :
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :


                                     ORDER


           AND NOW, this 12th day of December, 2016, the order of the
Luzerne County Court of Common Pleas dated November 24, 2015, at No. 9854 of
2015 is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
