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Spera v. Commonwealth3/3/2003
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from the February 14, 2002 order of the Court of Common Pleas of Allegheny County (trial court) sustaining the statutory appeal of Ezequiel N. Spera (Licensee) from a one-year suspension of his operating privilege imposed by the Department pursuant to Section 1547(b)(1) of the Vehicle Code (Code). At the de novo hearing in this matter, the testimony of Officer James Daggett of the Carnegie Mellon University Campus Police Department established that Licensee was observed by Officer Ronald Pilowsky leaving a fraternity house and behaving in ways that indicated he was under the influence of either drugs or alcohol. Licensee was observed by Officer Pilowsky entering a vehicle and driving it in a reckless manner, jumping a curb at one point. Officer Daggett testified that Licensee traveled past him, nearly sideswiping his marked police vehicle. Licensee was then stopped at a red light by another officer, at which time Officer Daggett watched Licensee exit his vehicle staggering. Officer Daggett exited his own vehicle and observed that Licensee had bloodshot eyes and the odor of alcoholic beverage on his breath. Officer Daggett testified that he witnessed Licensee fail the field sobriety test performed by another officer at the scene.
After failing the sobriety test, Licensee was placed under arrest and transported to the City of Pittsburgh Special Deployment Unit (SDU) by Officer Daggett. He was immediately placed in a cell for approximately ten to fifteen minutes, during which time he agreed to submit to a breathalyzer test. Officer Daggett testified that within five minutes, Pittsburgh Police Officer Howard McQuillen administered the test. During the test, Officer Daggett observed that Licensee was given five opportunities to blow into the breathalyzer.
Officer McQuillen, a certified breathalyzer operator and the only other witness, testified that he observed Licensee for twenty minutes and warned him that a refusal would result in the suspension of his license. Officer McQuillen also testified that during the breathalyzer test, he heard air escaping around the mouthpiece and that the breathalyzer indicated that Licensee was not blowing enough air into it. After five to eight attempts, Officer McQuillen deemed this to be a refusal for failure to provide sufficient breath samples.
At the conclusion of the hearing, the trial court sustained Licensee's appeal and reinstated his operating privilege on the sole basis that Licensee was not under observation for twenty consecutive minutes immediately prior to administration of the breath test, pursuant to Section 77.24(a) of the Department's regulations, 67 Pa. Code §77.24(a).
On appeal from the trial court's order, the Department asks us to determine: (1) whether the evidence presented in this case was sufficient to support a finding that Licensee was properly observed for at least twenty consecutive minutes prior to administration of the breath test and (2), whether the Department's burden to sustain a license suspension based on a breath test refusal requires proof in every case that the licensee was observed in accordance with the mandates of 67 Pa. Code §77.24(a).
In order to sustain a license suspension under the Code, the Department must establish that the licensee (1) was arrested for driving under the influence (DUI) based on reasonable grounds that he was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to submit to the requested chemical test and (4), was warned that refusal would result in a license suspension. 75 Pa.
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