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Finney v. Commonwealth6/19/1998
Submitted January 23, 1998
Scott Finney (Finney) appeals from an order of the Court of Common Pleas of Allegheny County dismissing his statutory appeal from a suspension of his operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department).
By official notice dated March 23, 1995, the Department notified Finney that his operating privilege was scheduled to be suspended for one year pursuant to Section 1547(b)(1) of the Vehicle Code, as amended, 75 Pa. C.S. §1547(b)(1), for his refusal to submit to chemical testing on February 26, 1995. Finney appealed the suspension, and a de novo hearing was held before the trial court.
At the hearing, the Department presented the testimony of Officer Sean Patterson of the Whitehall Borough Police Department, which can be summarized as follows. On February 26, 1995, Finney was arrested for driving under the influence of alcohol and taken to the police station, where he agreed to submit to a breathalyzer test after being given the implied consent and O'Connell warnings. On his first attempt to perform the test, Finney did not follow Officer Patterson's instruction and stopped blowing into the machine as soon as the tone went off on the machine. As a result, the machine registered a deficient breath sample with a blood-alcohol content reading of 0.136%. On subsequent attempts, Finney failed to make a tight seal on his mouth and kept letting his breath escape from the side of his mouth or puffing his cheeks with air.
During the administration of the test, Finney stated that he understood the testing procedures and did not advise Officer Patterson of any medical condition which would have prevented him from properly performing the test. Nor did Finney exhibit wheezing or shortness of breath. When Finney stated, after eight attempts, that he could not complete the test, Officer Patterson recorded a refusal for his failure to provide two consecutive breath samples, as required by 67 Pa. Code §77.24(b)(1). Sergeant Keith Henderson, who observed the administration of the breathalyzer test, also testified corroborating Officer Patterson's testimony.
Finney testified that he made best efforts to perform the test, that he could not force enough air into the tube on the machine because he suffered from asthma and that he advised Officer Patterson of his medical condition, contradicting the testimony of Officer Patterson and Sergeant Henderson.To support his claim that he was incapable of performing the test due to his medical condition, Finney also presented the deposition testimony of Dr. Michael Wald, who saw him on October 29, 1996,more than twenty months after his arrest.
The trial court accepted the testimony of Officer Patterson and Sergeant Henderson as more credible and found that Finney intentionally circumvented the test, and that he failed to advise the officers of his medical condition which allegedly prevented him from completing the test. The trial court did not give Dr. Wald's testimony much weight, noting that he first examined Finney more than a year after Finney's arrest. The trial court accordingly dismissed Finney's appeal.
To sustain a license suspension imposed pursuant to Section 1547(b) of the Vehicle Code, the Department must establish that (1) the licensee was arrested for driving under the influence of alcohol;(2) the arresting officer had reasonable grounds to believe that he or she was operating or in actual physical control of the movement of a motor vehicle; (3) the licensee was asked to submit to chemical testing; and, (4) the licensee refused to do so. Dep't of Transportation, Bureau of Driver Licensing v. Paige, 628 A.2d 917 (
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