The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jessica Rae Redmond :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 610 C.D. 2023
Appellant : Submitted: September 9, 2024
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 17, 2024
The Commonwealth of Pennsylvania, Department of Transportation
(DOT), Bureau of Driver Licensing (Bureau) appeals from the May 17, 2023 order
of the Court of Common Pleas of Fayette County (Trial Court), which sustained the
statutory appeal of Jessica Rae Redmond (Licensee) from a 12-month suspension of
her operating privilege by DOT pursuant to Section 1547(b)(1)(i) of the Vehicle
Code, 75 Pa.C.S. § 1547(b)(1)(i),1 commonly referred to as the Implied Consent
1
Section 1547(b)(1)(i) provides as follows:
§ 1547. Chemical testing to determine amount of alcohol or
controlled substance
...
(b) Civil penalties for refusal.—
Law, as a result of Licensee’s refusal to submit to chemical testing upon her arrest
for driving under the influence of alcohol or a controlled substance (DUI).2 Upon
review, we reverse the Trial Court’s order and reinstate the Bureau’s 12-month
suspension of Licensee’s operating privilege.
The Bureau notified Licensee by letter mailed May 18, 2022, that her
operating privilege would be suspended for one year for refusing to submit to a
chemical test on April 9, 2022. See Suspension Letter dated May 18, 2022,
Reproduced Record (R.R.) at 11a-14a. Licensee appealed the Bureau’s decision to
the Trial Court (Statutory Appeal), which held a de novo hearing on the matter on
May 17, 2023. See Statutory Appeal, R.R. at 7a-16a; Notes of Testimony, May 17,
2023 License Appeal Proceedings (N.T.), R.R. at 42a-89a. The following testimony
was presented at the hearing.
Pennsylvania State Police Trooper Michael Oplinger testified on behalf
of the Bureau. See N.T. at 34-47, R.R. at 75a-88a. Trooper Oplinger explained that,
while working the 10:00 p.m. to 6:00 a.m. shift on April 8-9, 2022, he was traveling
with his partner on Route 21 in Germantown Township, Fayette County, when he
observed a vehicle coming in the opposite direction with its high beams illuminated.
See N.T. at 34, R.R. at 75a. Trooper Oplinger turned his vehicle around and began
(1) If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by
the police officer, the [D]epartment [of Transportation] shall
suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period
of 12 months.
75 Pa.C.S. § 1547(b)(1)(i).
2
75 Pa.C.S. § 3802.
2
to follow the vehicle, which he then observed crossing the white fog line on the right
side of the road. See N.T. at 34-35, R.R. at 75a-76a. As a result of these
observations, Trooper Oplinger activated his vehicle’s emergency lights and
conducted a traffic stop. See N.T. at 35, R.R. at 76a.
Trooper Oplinger approached the vehicle on the driver’s side where he
observed Licensee in the driver’s seat. See N.T. at 35, R.R. at 76a. Licensee put her
window down and Trooper Oplinger advised Licensee that he had stopped her
because of the high beams and because she crossed the fog line. See N.T. at 35-36,
R.R. at 76a-77a. Licensee related that she had her high beams on to see because her
low beams are very dim. See N.T. at 36, R.R. at 77a. During this conversation,
Trooper Oplinger could smell the odor of an alcoholic beverage emanating from the
vehicle. See N.T. at 36, R.R. at 77a. Licensee explained that she had been at a local
bar with some friends where she had consumed three White Claws. See N.T. at 36,
R.R. at 77a.
As a result of his observations, Trooper Oplinger asked her to alight
from the vehicle. See N.T. at 36, R.R. at 77a. She did, stumbling to the right as she
exited the vehicle. See N.T. at 36, R.R. at 77a. Once she was out of the vehicle,
Trooper Oplinger asked Licensee if she would submit to a preliminary breath test
and she said that she would not if she did not have to. See N.T. at 37, R.R. at 78a.
Trooper Oplinger then asked Licensee to submit to field sobriety tests. See N.T. at
37, R.R. at 78a. Licensee complied with the request but failed the field sobriety
tests.3 See N.T. at 37-38, R.R. at 78a-79a.
3
Although Trooper Oplinger testified that he administered three field sobriety tests – the
horizontal gaze nystagmus test, the walk-and-turn test, and the one-legged stand test – he only
testified as to the details and results of two tests. See N.T. at 37, R.R. at 78a. After explaining that
Licensee had told him that she had no issues with seeing or anything that affects her vision,
3
Trooper Oplinger then placed Licensee under arrest. See N.T. at 38,
R.R. at 79a. When asked, Licensee indicated she would submit to a certified breath
test at the State Police barracks. See N.T. at 38, R.R. at 79a. Trooper Oplinger
placed Licensee in the police vehicle and transported her to the State Police barracks.
See N.T. at 38-39, R.R. at 79a-80a. Once at the barracks, Trooper Oplinger read
Licensee the Bureau’s DL-26A implied consent form (DL-26A Form)4 in its
Licensee failed the horizontal gaze nystagmus test, demonstrating a lack of smooth pursuit,
nystagmus prior to 45 degrees, and nystagmus sustained at maximum deviation. See N.T. at 37-
38, R.R. at 78a-79a. Trooper Oplinger explained that Licensee also failed the walk-and-turn test
by taking 10 steps instead of 9, stepping off the line, and not walking heel to toe as instructed. See
N.T. at 38, R.R. at 79a.
4
The DL-26A Form, entitled “Chemical Test Warnings and Report of Refusal to Submit
to a Breath Test as Authorized by Section 1547 of the Vehicle Code in Violation of Section 3802,”
contains the following warnings:
It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or
a controlled substance in violation of Section 3802 of the Vehicle
Code.
2. I am requesting that you submit to a chemical test of breath. You
must successfully complete two consecutive breath samples in order
to complete a chemical test of breath.
3. If you refuse to submit to the breath test, your operating privilege
will be suspended for at least 12 months. If you previously refused
a chemical test or were previously convicted of driving under the
influence, your operating privilege will be suspended for up to 18
months. If your operating privilege is suspended for refusing
chemical testing, you will have to pay a restoration fee of up to
$2,000 in order to have your operating privilege restored. In
addition, if you refuse to submit to the breath test, and you are
convicted of violating Section 3802(a)(1) (relating to impaired
driving) of the Vehicle Code, then, because of your refusal, you will
be subject to more severe penalties set forth in Section 3804(c)
(relating to penalties) of the Vehicle Code. These are the same
penalties that would be imposed if you were convicted of driving
4
entirety. See N.T. at 39, R.R. at 80a; see also DL-26A Form, R.R. at 35a. Licensee
indicated that she would be capable of providing the required two breath samples to
complete the testing. See N.T. at 39 & 45, R.R. at 80a & 86a.
Trooper Oplinger then administered the breath test to Licensee using a
certified, calibrated breathalyzer machine, which Trooper Oplinger is certified to
use. See N.T. at 39-40 & 46, R.R. at 80a-81a & 87a. Licensee’s first attempt to
blow into the machine yielded an insufficient sample. See N.T. at 40 & 45, R.R. at
81a & 86a. Trooper Oplinger gave Licensee a short break before administering the
test to Licensee a second time, which again resulted in an insufficient sample. See
N.T. at 40, R.R. at 81a. After the second insufficient sample, Trooper Oplinger
ended the breath testing. See N.T. at 41, 44 & 45, R.R. at 82a, 85a & 86a.
After the testing, Licensee told Trooper Oplinger that she had been
unable to complete the testing properly due to asthma. See N.T. at 40 & 44, R.R. at
81a & 85a. However, Trooper Oplinger testified that he observed that Licensee was
able to blow into the hose of the machine without any problems. See N.T. at 44,
R.R. at 85a. Additionally, Trooper Oplinger, who is a certified paramedic, explained
that, during the testing, Licensee showed no shortness of breath, no signs of an
with the highest rate of alcohol, which include a minimum of 72
consecutive hours in jail and a minimum fine of $1,000.00, up to a
maximum of seven years in jail and a maximum fine of up to
$15,000.
4. You have no right to speak with an attorney or anyone else before
deciding whether to submit to testing. If you request to speak with
an attorney or anyone else after being provided these warnings or
you remain silent when asked to submit to a breath test, you will
have refused the test.
DL-26A Form, R.R. at 35a. Licensee signed the DL-26A Form indicating she had received the
above warnings. See N.T. at 39, R.R. at 80a; see also DL-26A Form, R.R. at 35a.
5
asthma attack, and no other signs of respiratory distress of any kind. See N.T. at 40-
41, R.R. at 81a-82a. Trooper Oplinger did not witness Licensee wheezing,
coughing, or suffering from shortness of breath. See N.T. at 43-44, R.R. at 84a-85a.
Further, Licensee did not ask to use an inhaler of any kind and none was found on
her person. See N.T. at 40, R.R. at 81a.
Physician Assistant Michael David Rua5 testified on behalf of Licensee.
See N.T. at 4-32, R.R. at 45a-73a. Mr. Rua testified that Licensee tested positive for
COVID-19 on September 20, 2021. See N.T. at 12, R.R. at 53a. Mr. Rua’s office
treated Licensee with Trelegy, a triple-therapy inhaler,6 to aid and improve her
breathing during her recovery from COVID. See N.T. at 7, R.R. at 48a.
Mr. Rua testified that Licensee presented to his office on May 26, 2022,
with a chief complaint of wheezing and asked to have a breathing test performed.
See N.T. at 12, R.R. at 53a. This May 26, 2022 visit was the first time Mr. Rua’s
office assessed Licensee for respiratory issues.7 See N.T. at 30, R.R. at 71a. During
that visit, Licensee underwent a pulmonary function test (spirometer) to assess her
lung capacity. See N.T. at 6, 8 & 22, R.R. at 47a, 49a & 62a. Mr. Rua explained
5
Mr. Rua works at Montgomery Medical and has 23 years of experience as a Physician
Assistant. See N.T. at 4, R.R. at 45a. The Trial Court recognized Mr. Rua as an expert in the field
of “medical/physician assistant.” See N.T. at 5, R.R. at 46a.
6
On direct examination, Mr. Rua testified that his office also prescribed albuterol, a rapid-
acting bronchodilator, in addition to Trelegy. See N.T. at 7, R.R. at 48a. However, on cross-
examination, upon reviewing Licensee’s records, Mr. Rua testified that Licensee was not
prescribed albuterol by his office. See N.T. at 7 & 25, R.R. at 48a & 66a.
7
Mr. Rua explained that Licensee presented to his office for two previous visits – on
December 19, 2021, and February 16, 2022 – following her September 2021 COVID diagnosis
and before this May 26, 2022 visit. See N.T. at 25, R.R. at 66a. Neither visit was for respiratory
issues. See N.T. at 30, R.R. at 71a.
6
that this test assesses lung capacity, not an individual’s ability to blow into a
machine. See N.T. at 8, R.R. at 49a. The pulmonary function test indicated that
Licensee’s forced vital capacity was 30% of predicted capacity. See N.T. at 27, R.R.
at 68a.
When asked how he reached his opinion about Licensee’s ability to take
a breath test, Mr. Rua first testified somewhat generally that coughing and having a
hard time breathing and catching one’s breath
is quite common in post-COVID states; people just don’t
always recover very quickly. So[,] its oftentimes hard for
patients after COVID initially to take a deep breath in and
expel all of the air out completely; henceforth, it would
make it harder to do a breathalyzer because you have to
get a full breath in and blow it out virtually all at one time.
Some patients can’t even get a full breath in before they
have to let out and cough and take a second breath.
See N.T. at 9, R.R. at 50a. Specifically, as to whether Licensee herself would have
been able to activate a breath testing device on April 9, 2022, Mr. Rua explained
that, based on his treatment of Licensee, the medicines prescribed, and the condition
she was in when he saw her on May 26, 2022, she could have attempted a breath
test. See N.T. at 10, R.R. at 51a. He testified:
She could attempt it. It would be much more difficult to
complete the activation process, I could definitely say that.
She was in a lot of respiratory distress from the COVID,
which would impair her ability to adequately take a deep
breath in, blow it out, and activate the breathalyzer.
See N.T. at 10, R.R. at 51a.
7
Based on this testimony, the Trial Court sustained the Statutory Appeal
by order dated May 17, 2023 (Appeal Order). See Appeal Order, R.R. at 90a.8 The
Bureau timely appealed the Appeal Order to this Court. See Notice of Appeal, R.R.
at 91a-107a.
On appeal,9 the Bureau argues that the Trial Court erred as a matter of
law by finding that Licensee did not refuse Trooper Oplinger’s request that she
submit to chemical testing. See Bureau’s Br. at 4, 22-26. The Bureau further argues
that the Trial Court erred by determining that Licensee satisfied her burden of
proving that she was physically incapable of completing chemical testing due to a
medical condition. See Bureau’s Br. at 4, 27-32. We agree.
Initially, we note:
To sustain a license suspension under [the Implied
Consent Law], DOT has the burden of establishing that (1)
the licensee was arrested for drunken driving by a police
officer having reasonable grounds to believe that the
licensee was driving while under the influence, (2) the
licensee was requested to submit to a chemical test, (3) the
licensee refused to do so and (4) the licensee was warned
that refusal would result in a license suspension. Once
DOT meets this burden, the burden shifts to the licensee
8
The Appeal Order provided no reasoning for the Trial Court’s determination and
consisted solely of a single line of text that read: “AND NOW, this 17th day of May, 2023, after
hearing, it is hereby ORDERED and DECREED that the [Statutory A]ppeal is SUSTAINED and
the action of the [Bureau] is VACATED.” Appeal Order, R.R. at 90a. After the Bureau complied
with the Trial Court’s order to file a Statement of Errors Complained of on Appeal, the Trial Court
filed a Statement in Lieu of Opinion that explained its decision to sustain the Statutory Appeal.
See Statement in Lieu of Opinion, R.R. at 117a-18a.
9
“Our standard of review is limited to determining whether common pleas committed an
error of law, whether common pleas abused its discretion, or whether the findings of fact are
supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176
A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).
8
to establish that he or she either was not capable of making
a knowing and conscious refusal or was physically unable
to take the test.
Giannopoulos v. Dep’t of Transp., Bureau of Driver Licensing, 82 A.3d 1092, 1094
(Pa. Cmwlth. 2013) (quoting Wright v. Dep’t of Transp., Bureau of Driver Licensing,
788 A.2d 443, 445 (Pa. Cmwlth. 2001)). “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.” Wright, 788 A.2d at 445. “In
cases requiring medical testimony, competent evidence means that medical
testimony which expresses unequivocality.” Evans v. Workmen’s Comp. Appeal Bd.
(Anchor Hocking Corp.), 487 A.2d 477, 479-80 (Pa. Cmwlth. 1985).
“The question of whether a licensee refuses to submit to a chemical test
is a legal one, based on the facts found by the trial court.” Nardone v. Dep’t of
Transp., Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015). “The law is
clear that failure to provide a sufficient breath sample constitutes a per se refusal.”
Giannopoulos, 82 A.3d at 1097 (quoting Reinhart v. Dep’t of Transp., Bureau of
Driver Licensing, 954 A.2d 761, 766 (Pa. Cmwlth. 2008)) (internal brackets
omitted). Moreover, “[a] refusal may be established where the breathalyzer
administrator credibly testifies the licensee did not provide sufficient breath.” Id.
No dispute exists in the instant matter as to three of the four elements
that the Bureau must meet to sustain Licensee’s driver’s license suspension:
Licensee was arrested for drunken driving based on reasonable grounds to believe
that she was driving under the influence, Trooper Oplinger clearly requested that
Licensee submit to chemical testing, and, by reading the DL-26A form, Trooper
Oplinger warned Licensee that her refusal to submit to chemical testing would result
9
in a license suspension. The Bureau challenges only the Trial Court’s determination
that the Bureau failed to meet its burden to sustain the license suspension because
Trooper Oplinger was unsure whether Licensee made an “honest attempt” to comply
with the breath testing.
The Trial Court explained its decision to sustain the Statutory Appeal
thusly:
This Court found the testimony of the only witness
presented by the [Bureau] to be credible. We asked: “You
can’t tell us for sure, in your opinion, one way or another
whether [Licensee] was trying to manipulate it and beat
the breath (test) or if she was really making an honest
attempt; isn’t that a fair assessment?” The witness
answered: “Yes, Your Honor.” (Hearing Transcript Pages
47, 48)[.]
Since the only witness presented by the [Bureau] is
unsure if [L]icensee was making an honest attempt then
the [Trial] Court cannot find that the [Bureau] has met its
burden.
We would have dismissed this matter had this
witness been the first witness called. However, the parties
agreed to take [L]icensee’s witness out of order. We also
find this witness to be credible when he testified that
[L]icensee was physically incapable of completing the
breath test due to her medical condition. (Hearing
Transcript Page 10).
Accordingly, we sustained the [Statutory A]ppeal,
vacated the action of the [Bureau] and respectively request
that said decision be affirmed for the reasons stated herein.
Statement in Lieu of Opinion at 1-2, R.R. at 117a-18a. Thus, the Trial Court
accepted that Licensee provided two insufficient samples but concluded that this
10
evidence of the insufficient samples did not satisfy the Bureau’s burden to illustrate
Licensee’s refusal because it did not foreclose the possibility that Licensee may have
been honestly trying to comply. We cannot agree that the evidence in this matter
warranted such a conclusion by the Trial Court.
Here, Trooper Oplinger – whose testimony the Trial Court found
credible – testified that he conducted two breath tests with a certified and calibrated
machine and that Licensee provided an insufficient sample on each test. This
evidence established a refusal for purposes of the Implied Consent Law.
Giannopoulos. The Trial Court’s suggestion that Licensee’s effort is in any way
determinative is legally incorrect. “[T]he law is now well established that failure to
complete a breathalyzer test, whether or not a good faith effort was made to do so,
constitutes a refusal per se to take the test.” Sweeney v. Dep’t of Transp., Bureau of
Driver Licensing, 804 A.2d 685, 687 (Pa. Cmwlth. 2002) (emphasis omitted). As
this Court has explained:
The bedrock principal . . . is that failure to complete a
breathalyzer test constitutes a refusal. A trial court’s
finding that a licensee made a good faith attempt to
complete the breathalyzer test is irrelevant to the
question of whether the licensee refused the test.
Anything less than a completed breathalyzer test which
registers a blood alcohol reading on the breathalyzer
constitutes a refusal.
Id. at 687 n.11 (quoting Dep’t of Transp., Bureau of Driver Licensing v. Kilrain, 593
A.2d 932, 935 (Pa. Cmwlth. 1991)) (emphasis provided). Because a licensee’s good
intentions in completing chemical testing are irrelevant to a refusal determination,
the Trial Court erred by determining the Bureau failed to meet its burden to show
11
Licensee refused by failing to proffer evidence regarding her motivation in
supplying insufficient samples. Giannopoulos; Sweeney.
We further find that the Trial Court erred by determining that Mr. Rua’s
testimony satisfied Licensee’s burden to forward competent medical evidence that
she was physically unable to complete the requested breath testing. Although he
testified generally that persons recovering from COVID may have problems taking
and expelling full breaths, Mr. Rua’s testimony regarding Licensee in particular was
that she could have attempted the testing on April 9, 2022. See N.T. at 10, R.R. at
51a. Mr. Rua qualified his assessment by explaining that Licensee may have had
respiratory distress from her previous bout of COVID and her continuing recovery
therefrom that could have impaired her ability to activate the breathalyzer, but this
qualification did not preclude for medical reasons Licensee’s ability to successfully
produce and provide sufficient breath for testing purposes. Importantly, Mr. Rua
never testified that COVID was a problem on the night of Licensee’s arrest. Mr.
Rua’s opinion speculates on Licensee’s physical condition and capabilities on the
night of April 9, 2022, by comparing those capabilities to generalities about COVID
patients and his assessment of her condition over a month and a half later on May
26, 2022. This equivocal testimony lacks the certainty necessary to sustain
Licensee’s burden of proving that, on April 9, 2022, she was physically incapable of
performing the requested breath testing by virtue of previously having had COVID
in September 2021. Accordingly, the Trial Court erred by determining that Licensee
proffered competent medical evidence sufficient to support a conclusion that she
was physically incapable of performing the requested testing.
Moreover, we acknowledge that on the night of her arrest, Licensee told
Trooper Oplinger that her failure to activate the breath testing machine was
12
occasioned by asthma. See N.T. at 40, R.R. at 81a; Conrad v. Dep’t of Transp.,
Bureau of Driver Licensing, 226 A.3d 1045, 1054 (Pa. Cmwlth. 2020) (“It is well
settled that a licensee has a duty to inform the police officer of any known medical
condition that is not obvious and may affect the licensee’s ability to perform the
requested chemical test.”). We note, however, that, in addition to a licensee’s duty
to inform a police officer of a medical condition that prevents her from completing
testing at the time of testing, the licensee must also produce competent medical
evidence of the purported condition to support a finding that the licensee was unable
to take the test for that medical reason. Id. A simple declaration by a licensee that
she is physically unable to perform a breath test, absent medical proof of her
incapacity, will not justify her refusal. Dep’t of Transp., Bureau of Traffic Safety v.
Kelly, 335 A.2d 882, 885 (Pa. Cmwlth. 1975). Licensee presented no evidence
regarding asthma before the Trial Court. In fact, the Trial Court expressly noted that
Licensee’s purported asthma was not documented in Licensee’s medical records and
thus was not otherwise established. See N.T. at 23, R.R. at 64a.
For the above reasons, we reverse the Appeal Order and reinstate the
Bureau’s 12-month suspension of Licensee’s operating privilege.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jessica Rae Redmond :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 610 C.D. 2023
Appellant :
ORDER
AND NOW, this 17th day of October, 2024, the May 17, 2023 order of the
Court of Common Pleas of Fayette County is REVERSED, and the 12-month
suspension of Jessica Rae Redmond’s operating privilege is REINSTATED.
___________________________________
CHRISTINE FIZZANO CANNON, Judge