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McElwee v. Commonwealth3/13/2003
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of the Court of Common Pleas of Dauphin County (trial court) that sustained the appeal of Sharon C. McElwee (McElwee) from a one year suspension of her driver's license pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1).
By official notice dated January 21, 2002, DOT informed McElwee that her operating privilege was suspended for one year effective February 25, 2002, as a result of her refusal to submit to a chemical test on December 22, 2001. McElwee appealed her suspension to the trial court pursuant to Section 1550(a) of the Code, 75 Pa. C.S. § 1550(a).
At a de novo hearing, Police Officer Brian Tienter (Officer Tienter) of the Susquehanna Township Police Department testified that on December 22, 2001, at approximately 9:44 P.M. he observed "a gold Honda sedan traveling eastbound [on Linglestown Road] . . . at a high rate of speed . . . [and that] he vehicle three--four times over the course of the event did drift to the right side of the roadway crossing the fog line and over correcting back to the center line . . . ." Notes of Testimony (N.T.), May 23, 2002, at 6-7; Reproduced Record (R.R.) at 41a-42a. Officer Tienter effected a traffic stop. When Officer Tienter approached McElwee, he observed that McElwee had "moderately bloodshot eyes, moderate odor of alcohol, eyes glassy, difficulty finding her driver's license." N.T. at 8; R.R. at 43a. McElwee failed several sobriety tests and Officer Tienter placed her under arrest and transported her to the Harrisburg City Booking Center. At the Center, "towards the end of the 20-minute waiting period, [Officer Tienter] read the Harrisburg City consent form , and Ms. McElwee advised she understands, and she did sign the form." N.T. at 11; R.R. at 46a. McElwee agreed to submit to the breathalyzer test. McElwee failed to provide a sufficient breath sample and Officer Tienter recorded a refusal. Officer Tienter then read Form DL-26 to McElwee and noted that she refused "to sign the second form." N.T. at 13; R.R. at 48a.
John Benner (Benner), central booking officer for Dauphin County DUI's, testified that on the night in question he operated the Intoxalyzer 5000. Benner stated that McElwee failed to provide a sufficient breath sample after four opportunities to do so.
McElwee testified that she submitted to the breathalyzer test and that
"I thought I was blowing into the machine . . . I heard the noise, you know, the beep, beep sound, whatever, and I did until I stopped, until I had to stop." N.T. at 54; R.R. at 89a. McElwee stated that her constant sneezing interfered with her ability "to blow into the machine." N.T. at 55; R.R. at 90a. McElwee stated that after Officer Tienter read Form DL-26, she again agreed to submit to the breathalyzer test but was not permitted to do so.
The trial court observed:
. . . Although the testimony of the officers and the videotape of the testing process may have been sufficient to satisfy PaDOT's burden, the issue of the availability of the test results was raised, thus questioning the results of the test, and based on the case law from the Commonwealth Court, this Court determined that Petitioner [McElwee] had a right to see the printouts. Because they were discarded, production of those results was impossible, and this Court found it proper to sustain the Petitioner's [McElwee] appeal on that basis as well. Opinion at 10-11.
Based on the unavailability of the printouts McElwee's appeal was sustained.
Whether a licensee refused chemical testing is a question of law based upon the f
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