COM., DEPT. OF TRANSP. v. Kilrain

PELLEGRINI, Judge,

dissenting.

I dissent and would affirm the order of the trial court.

The facts are undisputed. Because of the haphazard manner in which he was operating his vehicle and his failure to pass a field sobriety test, the licensee was placed under arrest. After appropriate warnings, he was asked to take a breathalyzer exam. After giving one adequate sample, the licensee was unable, in five attempts, to provide an adequate breath sample so as to give a proper reading.

The police officer who administered the breathalyzer and the trial court found as a fact that the licensee “made a good faith effort to be retested in making five attempts to blow sufficient air into the breathalyzer.” (Trial court opinion, p. 1). Because he attempted in good faith to perform the test but was unable to provide the samples, the trial court held that the Commonwealth failed to sustain its burden that the licensee had refused to take a breathalyzer.

The majority finds, as a matter of law, that even where all parties, including the police officer who conducts the breathalyzer, testified that the licensee made a good faith effort to provide sufficient breath samples, a licensee's mere inability to complete the test constitutes, per se, a “refusal to do so” within the meaning of Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (implied consent law). By enunciating a per se rule, the majority has read into that provision a result not intended by the General Assembly, has usurped the factfinding function of the trial court, and rendered an opinion that is at variance with our Supreme Court’s pronouncements concerning how a determination is to be made of whether a licensee has refused to submit to chemical testing.

*493 The keystone to the majority’s holding that a licensee providing an inadequate breath sample is a per se refusal is its characterization that whether there is a refusal is a question of law rather than fact. By characterizing it as a question of law, only then is it possible for the majority to interpret, albeit incorrectly, “refusal to do so” as contained in Section 1547 of the Vehicle Code to mean “failure to complete the test.” If it had found it to be a question of fact, the majority would be precluded from adopting a per se interpretation because it is an oxymoron to have a per se approach if it is a factual question to be determined by the trial court by weighing credibility of witnesses and the totality of circumstances surrounding the licensee’s purported refusal. Because such a conclusion is not justified by our case law and is contrary to Supreme Court holdings which have held that refusal is a question of fact for the trial court to decide, I disagree that it is a question of law as to whether there is a refusal to submit to chemical testing. Even if it is a question of law, I disagree with the majority’s interpretation of Section 1547.

With a few aberrations, we have consistently decided that whether there is a refusal to submit to chemical testing is a factual and not a legal question both under Section 1547 and Section 624.1(a), 1 which Section 1547 superseded in 1976. In Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 557 , 304 A.2d 704, 708 (1973), interpreting Section 624.1(a), we found all questions regarding whether a person should lose his license under implied consent, including whether there is a refusal, were questions of fact by stating:

*494 Therefore, we conclude that if, in fact, a person is (1) placed under arrest and (2) charged with the operation of a motor vehicle while under the influence of intoxicating liquor and (3) is requested to submit to a breathalyzer test and (4) refuses to do so, the Secretary may suspend that person’s operator’s license. It is not a question of the lawfulness of the arrest or the admissibility into evidence of the results of the test, but rather the refusal to submit to the test at a time when Section 624.1(a) is applicable. It is a factual determination not a legal determination. (Emphasis in original.)

We have consistently followed Miles , holding that the licensee’s refusal to submit to chemical testing was a question of fact for the trial court under both the now repealed Section 624.1(a), as well as the substantially identical Section 1547 of the Vehicle Code. See McMahon v. Commonwealth of Pennsylvania, 39 Pa.Commonwealth Ct. 260, 264, 395 A.2d 318, 320 (1978) (refusal to submit to a breathalyzer is a factual test, not a legal determination); Bureau of Traffic Safety v. Jones, 38 Pa.Commonwealth Ct. 400, 403, 395 A.2d 592, 594 (1978) (refusal to submit to a breathalyzer test is a factual, not a legal determination); Bureau of Traffic Safety v. D. Pedick, 44 Pa.Commonwealth Ct. 44, 46, 403 A.2d 181, 182 (1979) (whether or not there has been a refusal of a request to take a breathalyzer test is a factual determination); Bureau of Traffic Safety v. Dauer, 52 Pa.Commonwealth Ct. 571, 574, 416 A.2d 113, 114 (1980) (refusal to submit to a breathalyzer is a factual, not a legal determination). We continued to restate the same principle in Bailey v. Commonwealth, Bureau of Traffic Safety, 60 Pa.Commonwealth Ct. 338, 431 A.2d 1114 (1981); Phillips v. Commonwealth of Pennsylvania, 84 Pa.Commonwealth Ct. 217, 220, 478 A.2d 958, 959 (1984); Zubik v. Dept. of Transportation v. Bureau of Traffic Safety, 93 Pa.Commonwealth Ct. 221, 226, 500 A.2d 1288, 1291 (1985); Department of Transportation, Bureau of Traffic Safety v. Vebelacken, 98 Pa.Commonwealth Ct. 436, 439, 511 A.2d 929, 931 (1986); Dawkins v. Commonwealth, Department *495 of Transportation, 111 Pa.Commonwealth Ct. 536, 539, 534 A.2d 573, 575 (1987); Commonwealth of Pennsylvania v. Jones, 120 Pa.Commonwealth Ct. 88, 90, 547 A.2d 877, 878 , appeal denied, 522 Pa. 579 , 559 A.2d 40 (1988).

Only two aberrant cases support the proposition that the refusal to submit to chemical testing is a question of law which we can decide. In Commonwealth of Pennsylvania v. Bender, 107 Pa.Commonwealth Ct. 475, 529 A.2d 44 (1988), it was stated:

While the factual determination as to whether a motorist refused to submit to a breathalyzer is for the common pleas court, Budd Appeal, 65 Pa.Commonwealth Ct. 314, 442 A.2d 404 (1982), the issue of whether a motorist’s conduct, as found by the common pleas court, constitutes an unqualified, unequivocal assent, is a question of law properly reviewable by this Court.

107 Pa.Commonwealth Ct. at 479, 529 A.2d at 45 .

Bender was the sole authority for the statement by this court in Fitzgerald v. Commonwealth of Pennsylvania, 137 Pa.Commonwealth Ct. 359, 586 A.2d 483, 484 (1991), that “whether conduct as found by the trial court constitutes a refusal is a question of law.” Fitzgerald , in turn, is the sole source cited in the majority opinion for that proposition. Lest anyone believe that because Fitzgerald is the last reported case that we announced a new rule, in Commonwealth of Pennsylvania v. Gaertner, 138 Pa.Commonwealth Ct. 423, 589 A.2d 272 (1991), we reverted to and again found that whether a person refused to take a breathalyzer test to be a question of fact.

Apart from their aberrancy and assuming that they ever had any validity, Bender and its progeny, Fitzgerald , no longer have any precedential value. Bender was reversed by our Supreme Court, 522 Pa. 104 , 560 A.2d 123 (1989) by order which stated:

PER CURIAM:

Order of Commonwealth Court reversed and Order of Court of Common Pleas of Montgomery County reinstated. See Department of Transportation, Bureau of *496 Traffic Safety v. O’Connell, 521 Pa. 242 , 555 A.2d 873 (1989).

In O’Connell , our Supreme Court, addressing, as here, the question of whether there was a refusal to submit to chemical testing, made clear that we are not to disturb the findings made by the trial court, and that whether there is a refusal is a question of fact, not of law, by holding:

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.

Additionally, in license suspension cases under Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (1) was arrested for driving while under the influence of alcohol; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver’s license.

Once the Commonwealth met its burden, it is the driver’s responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test. This is a factual determination which is to be made by the trial court. [Citations omitted; emphasis added.]

521 Pa. at 248-49 , 555 A.2d at 875-76 .

The keystone then of the majority’s opinion that it is a question of law and not of fact falls because it is derived from an aberrant case specifically reversed by our Supreme Court, which held that the finding that whether a licensee’s refusal to submit to chemical testing is for a trial court to *497 make, and which we must affirm if that finding is supported by substantial evidence. Consequently, in this case, we are bound by the trial court’s factual determination that the licensee did not refuse to take the test since its finding is supported by substantial evidence.

Even if this was a question of law, however, there is no support for the proposition that the General Assembly intended that Section 1547(b) to be a per se violation. When it enacted Section 1547(b), it knew that we had interpreted Section 624.1(a) of the Vehicle Code not as a per se violation, but one that was to be determined by the surrounding facts and circumstances as factual matters by the trial court. If the General Assembly intended to change that interpretation, it would have stated “failure to complete the test will cause a person’s license to be suspended” and the General Assembly would not have readopted the same language as contained in Section 624.1(a). The General Assembly did not draft the legislation that way, and it is beyond our prerogative to set forth a requirement that the General Assembly did not provide nor intend.

For the reasons set forth in this opinion as well as in Judge McGinley’s dissent, I would affirm the decision of the trial court.

. This section reads, inter alia:

Any person who operates a motor vehicle or tractor in this Commonwealth, shall be deemed to have given his consent to a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided ... If any person is placed under arrest and charged with operation of a motor vehicle or tractor while under the influence of intoxicating liquor and is thereafter requested to submit to a chemical test and refuses to do so, the test shall not be given but the secretary may suspend his license or permit to operate a motor, vehicle or tractor with or without a hearing____ (Emphasis added.)