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Berman v. Commonwealth2/19/2004
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), appeals from the April 17, 2003, order of the Court of Common Pleas of Philadelphia County (trial court), which granted Donna Berman's (Licensee) appeal from the one-year suspension of her driving privileges imposed by DOT pursuant to section 1547 of the Vehicle Code. We reverse.
Licensee was placed under arrest for driving under the influence of alcohol (DUI). A police officer asked Licensee to submit to a breath test, and Licensee consented to taking the test. Licensee gave no medical reason why she could not provide sufficient breath samples for the breathalyzer. However, Licensee tried eight times to provide sufficient breath samples and was unable to do so. As a result, the breathalyzer machine registered a refusal, and DOT suspended Licensee's driving privileges.
Licensee filed an appeal with the trial court, which held a de novo hearing on the matter. Officer Beatrice Kennedy testified regarding Licensee's unsuccessful attempts to provide sufficient breath samples for the breathalyzer. officer Kennedy testified that she did not ask Licensee whether Licensee had any medical conditions that might affect her blowing into the breathalyzer machine because a nurse already had asked that question. Officer Kennedy stated:
When she first came in she saw a nurse first in the presence of me. The nurse asked her if she had any medical problems which she wanted to address. So, on hearing this and being cleared by the nurse, I knew that she had no medical reasons, nor did she ask, nor did she admit to having medical reasons for not blowing.
(R.R. at 38a.)
Licensee did not testify on her own behalf, but she offered the testimony of Bertram J. Channick, M.D. Dr. Channick testified that Licensee consulted with him after her DUI arrest, and he determined that Licensee did not provide adequate breath samples because Licensee has a condition called hyperventilation syndrome. Dr. Channick explained:
In this syndrome people tend to over breathe and blow off too much carbon dioxide. Carbon dioxide is one of the important - is the most important trigger for respiration including expiration ... if one over breath s at any particular [moment] their force of expiration may significantly deminimous . They may not be able to blow out as much air as they ordinarily could.
(R.R. at 47a.) When asked on cross-examination whether Licensee's alcohol consumption might have played a part in her inability to provide sufficient breath samples, Dr. Channick answered, "I was not there at the time. I have no idea whether or not alcohol consumption did or did not interfere with her ability to take the test.... I have no idea of her condition as far as alcohol consumption is concerned." (R.R. at 50a.) However, Dr. Channick further testified:
[Licensee] has been my patient since she was 12 years of age. I have seen her many times over the years. I was very familiar with hyperventilation syndrome which could be brought on during a particular periods of anxiety, stress or tension.
This is - she did explain to me the emotional trauma that accompanied her arrest. That her mother was in the car with her, that her mother was left sitting in the car when she was brought to the police station. So, it was tremendous emotional stress on her at the time. I am sure that this would make her hyperventilate because I [have] seen it happen to her on any number of occasions under stress.
(R.R. at 51a-52a.)
After considering the evidence presented, the trial court accepted Dr. Channick's testimony as credible. T
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