stating that the failure to complete a breathalyzer test, even when a good faith effort is made to provide sufficient breath samples, constitutes a refusal to submit to the test
How later courts described this case
- stating that the failure to complete a breathalyzer test, even when a good faith effort is made to provide sufficient breath samples, constitutes a refusal to submit to the test
- ‘Anything less than a completed breathalyzer test which registers a blood alcohol reading on the breathalyzer constitutes a refusal.’
Written by the judges who cited it.
The opinion
McGINLEY, Judge,
dissenting.
I respectfully dissent.
The majority identifies the pivotal issue in this case as whether a failure to provide an adequate breath sample constitutes a per se refusal, or whether a “good faith” effort satisfies the mandate of 75 Pa.C.S. § 1547. Majority Opinion at 934. In Jones, this Court held that the licensee’s testimony that she made a good faith effort to take the test did not excuse her failure to complete a breathalyzer test. Further, the Court held that such self-serving testimony, standing alone, was insufficient as a matter of law, absent competent medical evidence, to show that the licensee was unable to take the test. Jones, 38 Pa. Commonwealth Ct. at 405, 592 A.2d at 594. Ten years later, in Berta, the licensee failed to blow a sufficient amount of air into the machine. *491 The court concluded there was no basis for distinguishing the facts in Berta from those in Jones. Berta, 120 Pa.Commonwealth Ct. at 563, 594 A.2d at 264. In Berta, one panel member concurred in the result and one panel member dissented on the basis that DOT did not establish that the arresting officer had reasonable grounds to believe that the licensee was driving while intoxicated.
On appeal we must not exceed our scope of review by invading the province of the fact finder. Our Supreme Court recently discussed the appellate courts’ proper scope of review in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242 , 555 A.2d 873 (1989). In O’Connell , the Court notes:
When appellate courts review the decision of a court of common pleas in a license suspension case, the scope of review is limited to determining whether the findings of fact of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision.
Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts.
As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy.
Id., 521 Pa. at 248 , 555 A.2d at 875 (citations omitted).
In the matter sub judice, the trial court was persuaded by the testimony of the arresting officer that the licensee made a good faith effort to blow enough air to complete the test. This testimony cannot be considered self-serving and should remove the onerous burden of producing medical *492 evidence as required in Jones. It is within the exclusive province of the trial court to judge the weight and credibility of the officer’s testimony.
Accordingly, I would affirm on the basis that the trial court’s conclusion that there was no refusal is supported by substantial evidence.