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Amspacher v. Commonwealth1/30/2003
C. George Amspacher, Jr. (Licensee) appeals from an order of the Dauphin County Court of Common Pleas (trial court) denying his appeal of the suspension of his driver's license. The Department of Transportation, Bureau of Driver Licensing (DOT) took this action because of Licensee's refusal to submit to a chemical test for the presence of alcohol in his bloodstream. We affirm the trial court.
On August 7, 2001, Licensee was arrested and charged with driving under the influence of alcohol. On September 18, 2001, DOT notified Licensee that his driving privilege was being suspended for a period of one year, beginning October 23, 2001, as a result of his refusal to submit to a chemical test as required under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1). Licensee filed a timely appeal with the trial court, and a de novo hearing was held on January 24, 2002.
The facts developed at this hearing were not, for the most part, disputed. On August 7, 2001, Officer Robert Zglenski (Officer Zglenski) was dispatched to an accident scene in downtown Harrisburg that involved Licensee. Officer Zglenski gave Licensee two field sobriety tests, which he failed. Accordingly, Licensee was arrested for driving under the influence and escorted to the Harrisburg police station. After Officer Zglenski read the O'Connell warnings, Licensee completed the DL26 form, which also warns about the consequences of a refusal to give consent to a blood alcohol test. At no point, according to Officer Zglenski, did Licensee complain of respiratory problems or exhibit any respiratory impairment.
Barry Mechling, the breath test operator who administered the test to Licensee on August 7, 2001, also testified. Prior to the test, Licensee was placed under a twenty-minute observation period, during which Licensee did not cough, sputter or try to catch his breath. Licensee did not state that he was asthmatic. A videotape of Mr. Mechling administering the test was also shown. Licensee could be seen to stop breathing too soon, thereby rendering the breath sample insufficient for the machine to process. At no time during the videotape did Licensee mention that he had asthma.
In rebuttal, Licensee contended that it was his asthmatic condition that prevented him from providing the necessary breath samples for the tests, not his "refusal" to give consent. He testified that he informed Officer Zglenski of his asthma at the accident scene after having difficulty with the portable breath test machine. Licensee also testified that he advised Mr. Mechling at the police station of his asthma. He admitted, however, that he told Mr. Mechling that he was capable of taking the breath test.
Licensee also presented the testimony Dr. Cary Cummings, who began treating Licensee in February of 2001 for various forms of lower respiratory tract infections. In August of 2001, Dr. Cummings diagnosed Licensee with cough-induced asthma, meaning that his repeated coughing could induce bronchial spasms and, in turn, a wheezing sound. Dr. Cummings prescribed several types of medication for the respiratory problems, including use of an inhaler for immediate relief during an episode of asthma. Dr. Cummings testified that Licensee's condition could affect his ability to provide an adequate breath sample if he had suffered a coughing episode prior to taking the breath test, which, in turn, had induced an asthma attack. Based on his observations of the videotape, Dr. Cummings could not opine whether or not Licensee had an asthmatic episode on the night of August 7, 2001.
The trial court found the testimony of Officer Zglenski and of Mr. Mechling to be credible and that of Licensee not cr
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