IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing
No. 309 C.D. 2011
Submitted: July 29, 2011
HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
BY JUDGE SIMPSON
FILED: September 23, 2011
Linda Donofrio (Licensee) appeals an order of the Court of Common
Pleas of Montgomery County (trial court) that denied her statutory appeal from a
one-year suspension of her operating privilege pursuant to Section 1547(b)(1) of
the Vehicle Code, commonly known as the Implied Consent Law. 1
Department of Transportation, Bureau of Driver Licensing (Department)
suspended Licensee’s operating privilege as a result of her refusal to submit to
chemical breath testing.
Licensee contends the trial court erred in excluding
medical testimony regarding her alleged incapacity to perform the breath test.
Upon review, we affirm.
Section 1547(b)(1) requires any person placed under arrest for driving under the
influence (DUI) “to submit to chemical testing … [and if that person] refuses to do so, the testing
shall not be conducted but upon notice by the police officer, the department shall suspend the
operating privilege of the person … for a period of 12 months.” 75 Pa. C.S. §1547(b)(1)(i).
The Department notified Licensee of the one-year suspension of her
operating privilege based on her refusal to submit to chemical testing after her
arrest for driving under the influence (DUI). Licensee appealed the suspension to
the trial court.
The trial court held a hearing at which the Department presented two
witnesses, Trooper Michael Brubaker and Corporal Richard Schroeter. Trooper
Brubaker arrested Licensee for DUI, transported her for chemical breath testing,
and recited the Implied Consent warnings. Corporal Schroeter, who was Trooper
Brubaker’s shift supervisor and a certified breath test operator, administered the
Trooper Brubaker testified regarding the circumstances of Licensee’s
arrest and the events surrounding the testing.
Trooper Brubaker testified he
observed Licensee’s vehicle swerve over the double yellow lines and nearly hit a
telephone pole. When he stopped Licensee’s vehicle, he smelled a strong odor of
alcohol and observed glassy, bloodshot eyes. Licensee advised him she drank
wine earlier that evening. Trooper Brubaker testified that, when asked, Licensee
reported she did not suffer from any medical conditions, and as a former fitness
trainer she could participate in any tests he administered.
Based on her
performance in a few field sobriety tests, Trooper Brubaker placed Licensee under
arrest for DUI.
Trooper Brubaker then transported Licensee to the Skippack
Township Police Barracks for testing. After a 20-minute observation period, he
read the warnings on the form DL-26, Chemical Testing and Refusal Report
(Warning) which states in pertinent part:
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
chemical testing, you will have refused the testing, resulting in
suspension of your operating privilege and other enhanced
criminal sanctions if you are convicted of violating Section
3802(a) of the Vehicle Code.
Ex. C-1, Warning No. 4, (emphasis supplied). There is no dispute that Trooper
Brubaker read the Warning “word for word” in its entirety. Reproduced Record
Corporal Schroeter testified that when he administered the test,
Licensee did not blow a steady breath as instructed and kept starting and stopping,
and blowing to the side of the mouthpiece. Licensee did not provide an adequate
breath sample, and the two minutes allotted for the test timed out after her first
attempt.2 Corporal Schroeter testified that “throughout the whole test,” about 20
times, Licensee requested to speak to her attorney and her husband. R.R. 27a-28a.
Corporal Schroeter asked Trooper Brubaker to take her for a blood sample when he
thought “she’s not going to do this.” R.R. 27a. Licensee asked him to “give [her]
another chance.” Id. To accommodate her request, Corporal Schroeter testified he
started up the machine to let her try again.
Department regulations require two consecutive actual breath tests to be valid. 67 Pa.
Code § 77.24; see also Dep’t of Transp., Bureau of Driver Licensing v. Schraf, 581 A.2d 249
(Pa. Cmwlth. 1990).
During her second attempt, Licensee again repeatedly asked to call
her husband or attorney. Corporal Schroeter deemed this a delay tactic, and at this
time he recorded the test as a refusal. During his testimony, Corporal Schroeter
confirmed Licensee did not disclose asthma or any other condition that would
prevent her from performing a breath test. During cross-examination, Corporal
I have probably administered six, 700 breath tests, total. I can
tell when somebody’s trying to defeat the instrument and I can
tell when somebody’s not able to.
I was convinced that she was trying to defeat the instrument by
not providing a proper sample.
R.R. 31a-32a. He emphasized Licensee could not provide a sufficient sample
“because she kept stopping,” and “not because she couldn’t do it. She wasn’t out
of breath when she stopped. She wasn’t panting for air.” R.R. 33a-34a.
As her sole witness, Licensee presented Dr. Joseph Citron to testify as
a medical expert regarding breath tests and related medical conditions. The
Department objected to his testimony as irrelevant because Licensee’s documented
refusal of chemical testing was unrelated to a medical condition. R.R. 46a-47a.
Dr. Citron specializes in ophthalmology, and he did not treat or
examine Licensee in preparation for his testimony or report. Based on the medical
records of others that he reviewed, Dr. Citron testified that Licensee has asthma.
The trial court noted Dr. Citron did not examine Licensee, although he could have,
and he relied on medical tests that were “fairly old.” R.R. 54a. The trial court
ended Dr. Citron’s testimony and rejected it.
Licensee presented no other
witnesses and declined to testify.
Ultimately, the trial court found Licensee did not prove an inability to
take the test and agreed with the Department that Licensee’s repeated requests to
speak with her husband and attorney constituted a refusal. Thus, the trial court
denied Licensee’s appeal.
Licensee now appeals to this Court,3 asserting the trial court erred in
excluding the medical testimony of Dr. Citron proffered to show an unknown
medical condition, asthma, rendered Licensee incapable of performing the breath
test. Licensee also contends there is insufficient evidence to support suspension.
To sustain a license suspension under the Implied Consent Law, the
Department must establish a licensee: (1) was arrested for DUI; (2) was asked to
submit to a chemical test (e.g., breath test); (3) refused to do so; and (4) was
specifically warned a refusal would result in suspension of her driver’s license.
See Quigley v. Dep’t of Transp., Bureau of Driver Licensing, 965 A.2d 349 (Pa.
Cmwlth. 2009). Here, the trial court concluded the Department met its burden of
proving each element to support a license suspension.
Our review is limited to determining whether the trial court committed error of law or
abused its discretion and whether necessary findings of fact were supported by substantial
evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth.
Once the Department meets its burden, the burden shifts to the
licensee to prove her refusal was not knowing or conscious, or that she was
physically incapable of performing the test. Dep’t of Transp., Bureau of Driver
Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). Here, the trial court
determined Licensee did not prove her physical inability to complete the test due to
a medical condition and noted that any evidence related to her alleged incapacity
would have been irrelevant because her refusal resulted from her conduct.
A. Refusal by Conduct
This Court consistently holds that anything substantially less than an
unqualified, unequivocal assent to submit to chemical testing constitutes a refusal.
Gregro v. Dep’t of Transp., Bureau of Driver Licensing, 987 A.2d 1264 (Pa.
Cmwlth. 2010); Dep’t of Transp., Bureau of Driver Licensing v. Mumma, 468
A.2d 891 (Pa. Cmwlth. 1983). Significantly, a licensee’s conduct may constitute a
refusal to submit to testing.
Quick v. Dep’t of Transp., Bureau of Driver
Licensing, 915 A.2d 1268 (Pa. Cmwlth. 2007); Keenan v. Dep’t of Transp., Bureau
of Driver Licensing, 657 A.2d 134 (Pa. Cmwlth. 1995) (licensee’s repeated
questioning deemed a refusal). Further, failure to submit a sufficient breath sample
“is a refusal per se unless the licensee can establish that the failure was due to
physical inability unrelated to ingestion of alcohol….” Spera v. Dep’t of Transp.,
Bureau of Driver Licensing, 817 A.2d 1236, 1240 (Pa. Cmwlth. 2003).
Here, the trial court did not err in finding Licensee’s conduct
constituted a refusal, and sufficient evidence supports this conclusion. See Keenan.
Specifically, the trial court found that Corporal Schroeter marked the breath test
“refused” due to Licensee’s conduct in repeatedly requesting to speak to her
husband or her attorney. R.R. 27a-28a, 47a (“I think that the refusal comes in that
second test situation.”). The Warning read to Licensee specifies that asking to call
an attorney or any person is a refusal and shall be marked as such. R.R. 28a; see
Quigley (refusal recorded since licensee requested to speak to her husband).
Corporal Schroeter deemed Licensee’s conduct in repeatedly making
these requests a “delay tactic” and found her failure to provide a sufficient breath
sample constituted a deliberate attempt to defeat the test. R.R. 31a-32a. Licensee
submitted no evidence to contradict the Department’s evidence regarding her
As to Licensee’s alleged inability to provide sufficient breath, the
Corporal’s testimony is clear that Licensee did not provide sufficient breath not
because she could not, but because she kept stopping. R.R. 33a-34a. The trial
court credited his testimony. R.R. 44a, 56a. This too is a refusal. See Spera.
In short, the trial court properly concluded Licensee refused chemical
testing by repeatedly asking to speak to her husband and attorney. See Quigley;
B. Evidence of Alleged Incapacity
Nevertheless, Licensee argues the trial court’s preclusion of Dr.
Citron’s testimony denied her an opportunity to present her defense of alleged
incapacity to give a sufficient breath sample due to asthma, and thus constitutes
reversible error. Wright v. Dep’t of Transp., Bureau of Driver Licensing, 788 A.2d
443 (Pa. Cmwlth. 2001) (incapacity defense must be supported by medical
Licensee proffered Dr. Citron as an expert in “evidentiary breath
testing, standard field sobriety and medical conditions related thereto.” R.R. 38a.
The admission of expert testimony is within the discretion of the trial
court, and this Court will not disturb the trial court’s decision absent a clear abuse
of discretion. Dep’t of Transp., Bureau of Driver Licensing v. Wilhelm, 626 A.2d
660, 662 (Pa. Cmwlth. 1993); Wicks v. Dep’t of Transp., Bureau of Driver
Licensing, 590 A.2d 832 (Pa. Cmwlth. 1991). “Abuse of discretion” means the
“judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record.” Bedford
Downs Mgmt. Corp. v. State Harness Racing Comm’n, 592 Pa. 475, 487, 926 A.2d
908, 916 (2007).
Here, the trial court exercised its discretion to discontinue the
testimony of Licensee’s expert medical witness, Dr. Citron. We discern no abuse
of discretion by the trial court for several reasons. First, Dr. Citron did not offer
any independent medical opinion as to Licensee’s alleged medical condition based
upon the records he reviewed. Next, Licensee failed to make an offer of proof or
suggest during the hearing that Dr. Citron would testify that Licensee lacked
awareness of her alleged medical condition. Finally, Dr. Citron’s testimony was
irrelevant to, and cannot excuse Licensee’s non-medically related refusal.
Dr. Citron testified Licensee had asthma based solely on medical
records of others that he reviewed. The trial court noted the studies Dr. Citron read
from were “fairly old” and rejected his testimony as he did not examine Licensee.
After hearing Dr. Citron’s testimony regarding asthma, the trial court found that, as
an expert, Dr. Citron did not offer any independent opinion. Tr. Ct., Slip Op. at 3.
While an expert’s testimony may rely on his review of medical records of others,
an expert cannot merely parrot others’ findings and be credited. See Collins v.
Cooper, 746 A.2d 615 (Pa. Super. 2000).
Licensee challenges the trial court’s reliance upon Papach v. Mercy
Suburban Hospital, 887 A.2d 233 (Pa. Super. 2005) (ambulance report
inadmissible) to reject Dr. Citron’s testimony. However, Papach involved the
admissibility of a report, while the current issue involves the competence and
relevance of an expert opinion. Ultimately, the trial court rejected Dr. Citron’s
testimony because he did not offer any independent opinion on Licensee’s medical
condition or any opinion on Licensee’s awareness of a medical condition.
Importantly, during the hearing Licensee never offered to prove that
she lacked awareness of her alleged medical condition at the time of the testing.
This evidentiary gap, noted by the trial court, bars Dr. Citron’s testimony. Tr. Ct.,
Slip. Op. at 3.
Medical testimony regarding alleged asthma cannot be considered by
a court when a licensee does not disclose the condition at the time of testing. See
Finney v. Dep’t of Transp., Bureau of Driver Licensing, 721 A.2d 420 (Pa.
Cmwlth. 1998). There is no dispute that Licensee did not inform either Trooper
Brubaker or Corporal Schroeter of her alleged asthma. R.R. 8a, 35a. Licensee had
a duty to inform these officers of any medical condition that may affect the testing,
or be barred from a medical incapacity defense. Id.; Hatelski v. Dep’t of Transp.,
Bureau of Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995).
circumstance that may excuse this duty is when the medical condition is unknown
to the licensee, as in Bridges v. Department of Transportation, Bureau of Driver
Licensing, 752 A.2d 456 (Pa. Cmwlth. 2000), relied on by Licensee.
Bridges presents an anomaly in that this Court permitted evidence
regarding medical incapacity despite the licensee’s failure to disclose a condition
to the testing officers because the record showed a pulmonary condition that could
affect testing was unknown to the licensee. Significantly, in Bridges, the officer
marked the test “refused” because the licensee was unable to provide an adequate
breath sample. Since the officer recorded the licensee’s test as a refusal due to
insufficient breath, the trial court accepted deposition testimony by a physician
who observed the licensee’s pulmonary limitations, pertinent because the doctor
causally linked the medical condition to the refusal in order to excuse it.
The crucial facts in Bridges differ from those present here. This is not
a case in which the officers recorded Licensee’s test as a refusal due to insufficient
breath. In stark contrast to Bridges, Corporal Schroeter marked the test “refused”
for the non-medically related cause of Licensee repeatedly asking to call her
attorney or husband. Given these distinguishing facts, Bridges does not apply.
We agree with the trial court that Dr. Citron’s medical testimony is
irrelevant. Licensee’s test was marked as “refused” because she repeatedly asked
to speak to her husband or attorney. Medical testimony is not relevant when the
refusal is not medically-related. Licensee failed to connect her alleged medical
condition to the refusal recorded, and offered no evidence to show her continued
request to speak with her husband or attorney was excused by any medical
condition. Licensee’s failure to connect her alleged medical condition to her
refusal thwarts a medical incapacity defense.
Accordingly, and for the above reasons, the decision of the trial court
sustaining Licensee's one-year suspension is affirmed.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing
No. 309 C.D. 2011
AND NOW, this 23rd day of September, 2011, the Order of the Court
of Common Pleas of Montgomery County is AFFIRMED. The stay of the oneyear license suspension is hereby dissolved.
ROBERT SIMPSON, Judge