Sweeney v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. Here, the licensee presented: (1) credible expert testimo *690 ny that an Intoxilyzer 5000 with a resistance setting above three pounds per square inch may prevent a sober and healthy person from providing sufficient breath samples; (2) evidence accepted by the trial court that the licensee was sober and healthy at the time of the Intoxilyzer 5000 breath test; and (3) credible testimony that the licensee made her best effort to provide sufficient breath samples. Unlike the majority, I would hold that, when a licensee presents such evidence, the burden of proof shifts to the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) to show that the breathalyzer’s resistance setting did not deprive the licensee of a reasonable and sufficient opportunity to complete the chemical testing. 1 The majority’s contrary holding establishes a dangerous precedent, allowing DOT to penalize innocent motorists simply because the resistance level of a breathalyzer machine was not set properly. Thus, I would affirm the trial court.

I. Trial Court Holding

The trial court sustained the appeal of Flora Sweeney because the trial court accepted her testimony and concluded that “she made the best effort possible at the time to provide the samples but was unable to do so for reasons beyond her control.” (Trial court op. at 1.) However, the trial court did not make specific findings of fact to indicate what it meant by “reasons beyond her control.” Where a fact finder fails to make its findings of fact explicit in its decision, this court will examine the fact finder’s implicit findings to see whether the record contains substantial evidence to support those findings. See Thomas v. Unemployment Compensation Board of Review, 104 Pa.Cmwlth. 348 , 521 A.2d 999 (1987).

First, in order to sustain Sweeney’s appeal on the basis of matters “beyond her control,” it was necessary for the trial court to find that an Intoxilyzer 5000 with a resistance setting above three pounds per square inch may prevent a sober and healthy person from providing sufficient breath samples. This implicit finding is supported by the expert testimony of Charles L. Winek.

Winek is a professor of toxicology at Duquesne University and was the chief toxicologist of Allegheny County for thirty-two years. (R.R. at 35a.) He started the breath testing program in Allegheny County in 1966 and, for many years, taught Intoxilyzer 5000 certification courses for police officers. (R.R. at 35a-36a.) Winek testified that: (1) the Intoxi-lyzer 5000 registers a deficient breath sample when the licensee does not blow with enough pressure to overcome the resistance offered by the feedback mechanism in the instrument’s cylinder; (2) the resistance offered by the cylinder can vary; (3) the manufacturer sets the resistance level at six pounds per square inch at the factory; (4) some sober and healthy persons are unable to provide a sufficient breath sample when the Intoxilyzer 5000’s resistance is at the factory setting; and, (5) as a result, Allegheny County decided to lower the resistance setting to three pounds per square inch. 2 (R.R. at 36a- *691 38a.) In other words, according to Winek, any setting above three pounds per square inch may prevent a sober and healthy person from providing sufficient breath samples.

Second, in order to sustain Sweeney’s appeal based on Winek’s testimony regarding the inability of some sober and healthy persons to provide sufficient breath samples, it was necessary for the trial court to find that Sweeney was sober and healthy when she took the breathalyzer test. Sweeney’s testimony and the testimony of Officers Matthew Cornwall and Howard McQuillan support this implicit finding.

Officer Cornwall testified as follows. He stopped Sweeney’s vehicle on April 10, 1998 because it went through a red light. When he inquired about the odor of alcohol coming from the interior of the vehicle, Sweeney explained that she had just dropped off friends who had been drinking. (R.R. at 10a-12a, 17a.) He then asked Sweeney to step out of the vehicle for field sobriety tests. Sweeney had no trouble exiting the vehicle, had no difficulty standing on her own and had no problem with her speech. (R.R. at 21a-22a.) He asked Sweeney to walk in a straight line on a downhill grade, but Sweeney did not follow his instruction to touch her heels to her toes. He then transported Sweeney to the police station for a breath test. (R.R. at 18a, 20a-21a.) During the test, Sweeney appeared to be sincere in trying to provide sufficient breath samples and wanted to keep trying when she was unable to do so. 3 (R.R. at 19a.) Officer Howard McQuillan testified that Sweeney did not inform him of any breathing disorder prior to or during the test. (R.R. at 31a.) Sweeney would later testify that she could not understand “why it [the Intoxi-lyzer 5000] didn’t work.” (R.R. at 47a.)

It is clear that the trial court accepted Sweeney’s explanation that, on April 10, 1998, she had been the designated driver for a group of her friends. It is equally clear that the trial court gave much weight to the fact that Sweeney exhibited no signs of intoxication when she exited her vehicle, when she stood on her own and when she spoke. The trial court gave little weight to the fact that Sweeney did not follow Officer Cornwall’s instruction to touch heel to toe while walking the straight line. Finally, the trial court believed that Sweeney had no breathing disorder and considered Sweeney’s sincere efforts during the test and her confusion over her inability to provide sufficient breath samples to be indications of her sobriety.

Given the fact that Sweeney was sober and healthy and the fact that some sober and healthy people cannot provide sufficient breath samples when the Intoxilyzer 5000’s resistance setting is above three pounds per square inch, it was reasonable for the trial court to conclude that the resistance setting on the Intoxilyzer 5000 *692 used here prevented Sweeney from receiving a reasonable and sufficient opportunity to complete chemical testing. 4 See Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193 , 723 A.2d 655 (1999). Because the evidence supports the trial court’s decision, that decision should be affirmed.

II. Implications

The majority resists affirming the trial court in this case because it would “effectively destroy the viability of the Intoxilyzer 5000 as an effective tool in the unending battle against the drunken drivers on our roads.” (Majority op. at 689.) I disagree. It is a simple matter for DOT to present evidence in per se refusal cases to establish a particular machine’s resistance setting.

Moreover, I point out that a licensee once challenged the reliability of the Breathalyzer 1000 machine because radio signals interfered with its operation. 5 See Baldinger v. Commonwealth, 116 Pa. Cmwlth. 339, 509 A.2d 912 (1986). As a result, the manufacturer modified the instrument. Id. Also, at one time, there were no regulations pertaining to the calibration of breath test equipment. See Commonwealth v. Williamson, 356 Pa.Super. 397 , 514 A.2d 917 (1986). As a result, regulations were promulgated. Id. Thus, here, there will not be disastrous consequences from our affirming the trial court. As in the past, having recognized a potential problem with breath testing technology, the appropriate entities will act to provide a solution.

It is important to note that, currently, there are no regulations governing the resistance level of breath test equipment. Winek has testified that some sober and healthy people cannot provide sufficient breath samples at the factory resistance setting of six pounds per square inch. Assuming that some counties do not alter the factory setting on the Intoxilyzer 5000, DOT may have suspended the operating privileges of many sober and healthy licensees simply because they could not blow enough breath into a machine. Moreover, this situation will continue unless DOT is forced to promulgate regulations establishing a standard for the resistance setting of breath test equipment and requiring periodic checks to verify a machine’s resistance level. 6

*693 For the foregoing reasons, I would affirm the trial court.

. See Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193 , 723 A.2d 655 (1999) (stating that a motorist must be allowed a reasonable and sufficient opportunity to complete chemical alcohol testing).

. The majority characterizes Winek's testimony as conjecture and mere possibilities. (Majority op. at 688-689.) It is true that Winek testified he does not know the setting of the actual machine used to test Sweeney on April 10, 1998. (R.R. at 38a.) However, there is nothing conjectural or merely possible about Winek’s explanation of the Intoxilyzer 5000's resistance mechanism, his expert opinion that *691 the resistance setting affects a person’s ability to provide sufficient breath samples or his expert opinion that three pounds per square inch is a proper setting.

. The majority states that, according to the testimony of Officer McQuillan, Sweeney did not blow properly into the machine. (Majority op. at 688.) However, it is clear from the trial court’s holding that this testimony was rejected. Indeed, to sustain Sweeney’s appeal based on something “beyond her control,” the trial court could not have accepted Officer McQuillan’s testimony and found that Sweeney herself caused the problem by blowing improperly into the machine. I point out that questions of credibility are for the trial court to resolve. Burke v. Department of Transportation, Bureau of Driver Licensing, 733 A.2d 13 (Pa.Cmwlth. 1999), appeal granted, 563 Pa. 692 , 760 A.2d 857 (2000).

. The majority states that, according to Officer McQuillan, the Intoxilyzer 5000 was operating properly. (Majority op. at 688.) However, Winek testified that Officer McQuillan would have no way of knowing the Intoxilyzer 5000's resistance level because this setting "is done by a technician." (R.R. at 44a.) In sustaining Sweeney’s appeal, the trial court obviously accepted Winek’s testimony and concluded that Officer McQuillan knew nothing about the Intoxilyzer 5000’s resistance setting.

. Like the Intoxilyzer 5000, the Breathalyzer 1000 was on the National Highway Traffic Safety Administration's list of qualified products. See Baldinger v. Commonwealth, 116 Pa.Cmwlth. 339 , 509 A.2d 912 (1986); see also majority op. at 689.

.Winek testified that the resistance level of an Intoxilyzer 5000 could be set so high that "nobody could blow hard enough” to provide sufficient breath samples. (R.R. at 44a.) Under • the majority’s holding, if a technician erroneously sets a machine’s resistance level that high, the mistake will not be discovered until a licensee who has failed a breath test for insufficient breath samples pays an expert to examine the device. In the meantime, DOT may legally suspend the operating privileges of licensees who happened to be tested on a machine whose resistance level could preclude a sober and healthy person from providing sufficient breath samples.