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Berman v. Commonwealth2/19/2004
he trial court then concluded, based on this court's decision in Lemon v. Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Cmwlth. 2000), that Licensee's failure to inform the nurse or Officer Kennedy of her hyperventilation syndrome was immaterial.
Therefore, the trial court granted Licensee's appeal and rescinded the suspension imposed by DOT. DOT now appeals to this court.
DOT argues that the trial court erred in concluding that, under Lemon, Licensee's failure to inform Officer Kennedy of her hyperventilation syndrome was immaterial. We agree.
Where a licensee suffers from a medical condition that affects the licensee's ability to perform a chemical test and that condition is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered. Wright v. Commonwealth, 788 A.2d 443 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 712, 796 A.2d 989 (2002) (citing Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995)). Lemon did not alter this rule.
In Lemon, when the licensee failed to provide sufficient breath samples for the breathalyzer machine, he asked the officer to transport him to a local hospital for a blood test. The licensee knew that he had emphysema, but he had not yet been diagnosed with the condition. The licensee did not inform the officer that emphysema had prevented him from providing the breath samples; therefore, the officer refused the request for a blood test. In presenting his case to the court of common pleas, the licensee offered into evidence a hospital report showing the results of pulmonary function tests. However, the licensee did not present any expert medical testimony to interpret the test results. This court denied the licensee's appeal, holding that the licensee failed to present competent medical evidence about his pulmonary problems. Having decided the appeal on that basis, this court stated that the licensee's failure to inform the officer of his breathing problems prior to taking the test was immaterial. Id.
In other words, this court in Lemon chose to decide the appeal based on the lack of competent medical evidence rather than the failure to inform the officer of the medical condition. This court did not eliminate the need for a licensee to inform the officer administering a breathalyzer test of a medical condition that could adversely affect the licensee's ability to perform the test.
Thus, here, the trial court erred in concluding that, pursuant to Lemon, the licensee's failure to inform Officer Kennedy of her hyperventilation syndrome was immaterial.
Accordingly, we reverse.
ROCHELLE S. FRIEDMAN, Judge
ORDER
AND NOW, this 19th day of February, 2004, the order of the Court of Common Pleas of Philadelphia County, dated April 17, 2003, is hereby reversed.
ROCHELLE S. FRIEDMAN, Judge
Page 1 2 Pennsylvania DUI Attorneys
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