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Morse v. Commonwealth10/27/2005
n of whether a licensee has refused chemical testing is one of law, based upon the facts found by the trial court. Tullo v. Department of Transportation, Bureau of Driver Licensing, 837 A.2d 605 (Pa. Cmwlth. 2003). "Where a licensee suffers from a medical condition that affects his or her ability to perform a test and that condition is not obvious, a finding that a licensee was unable to take the test for medical reasons must be supported by competent medical evidence." Tullo, 837 A.2d at 607, quoting Flanigan v. Department of Transportation, Bureau of Driver Licensing, 806 A.2d 542, 527 (Pa. Cmwlth. 2002). If DOT establishes that a licensee refused to take a test, the licensee must establish that the refusal was knowing or conscious or that he/she physically was unable to take the test. Lemon v. Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Cmwlth. 2000).
Here, Morse did not present any medical evidence that she either suffered an injury at the accident scene or that she was physically incapable of performing the breathalyzer test because of her medical condition. Morse presented no evidence other than her testimony that "I have a bad knee . . . asthma." N.T. at 20 and 23; R.R. at 33a and 36a. As such, her argument must fail.
Last, Morse contends that she was denied effective assistance of counsel at her de novo hearing. Specifically, Morse asserts that trial counsel failed to present any medical documentation or testimony concerning her sinus and ear infections, abscessed tooth and her change in anti-depressant medicine and that counsel also failed to properly cross-examine the police officers.
A review of the record indicates that Morse was provided with effective assistance of counsel. First, Morse testified on direct and again on cross-examination that Officer Traxler never requested her to submit to a breathalyzer test. To the contrary, if Morse testified that Officer Traxler did request her to submit to a breathalyzer test and that she was unable to do so, expert medical testimony could have established that Morse was unable to give a knowing and conscious refusal based upon her medical condition. However, this was not the situation here. Second, trial counsel did challenge the credibility of Officer DiGiacomo and Officer Traxler on cross-examination. Unfortunately, for Morse, the trial court found the police officers credible.
Accordingly, this Court affirms.
AND NOW, this 27th day of October, 2005, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.
BERNARD L. McGINLEY, Judge
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