Commonwealth, Department of Transportation v. Harper
Commonwealth, Department of Transportation v. Harper
Opinion of the Court
Opinion by
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Court of Common Pleas of Philadelphia County which sustained an appeal of Alex E. Harper and reversed a one year suspension of Harpers operating privileges imposed by DOT pursuant to 75 Pa. C. S. §1547.
Harper was arrested and charged with driving while intoxicated. The arresting officer took Harper to the Police Department Administration Building in order to
Harper, on the other hand, testified that the officer fold him to blow into the machine until he was told to stop. Harper said he began to blow into the machine but ran out of breath before the testing officer told him to stop. According to Harper, the officer then informed him that he had failed the test. Harper was afforded no other opportunities to supply sufficient breath to register a reading on the machine. Harper also testified that he was not informed of the consequences of a refusal.
Faced with this conflicting testimony, the trial court specifically found Harpers testimony credible and held that he had never refused to take the test. The court therefore sustained Harpers appeal and reversed DOTs suspension of Harpers license. DOT has appealed the trial courts order to this Court.
DOT argues that the trial court committed an error of law in considering the testimony of Harper concerning his attempt to provide sufficient breath. DOT relies upon the line of cases, of which Department of Transportation, Bureau of Driver Licensing v. Norton, 103 Pa. Commonwealth Ct. 78, 519 A.2d 1085 (1987), is illustrative. In those cases, we have held that when a driver claims that he or she was incapable of either taking the test or consciously refusing to do so, that driver must present medical testimony to support the assertion of incapability. We believe, however, that the present case is distinguishable. Here, Harper is not claiming he was incapable of performing the test; he
In Department of Transportation, Bureau of Traffic Safety v. Jones, 38 Pa. Commonwealth Ct. 400, 395 A.2d 592 (1978), we reversed a trial courts order sustaining the drivers appeal. Because the facts are crucial, quotation from that opinion is necessary.
The Departments witness testified as follows: Appellee agreed to submit to- any test which was requested of her. She thereupon attempted to blow into the tube attached to the machine. Although she supplied 'healthy blasts,’ the machine did not register a reading since Appellee apparently was blowing air out of the sides of her mouth. Despite repeated attempts to blow air into the machine, including at least one attempt to blow into the tube after the mouthpiece had been removed, she continued to blow air out of the sides of her mouth. This inability to master the correct technique persisted even though the examiner instructed Appellee several times on the proper method. The most success achieved by Appellee was to exhale enough air so as to cause the formation of some condensation in the upper portion of the tube. As a consequence, the testing was abandoned. Appellee, on the other hand, testified that she made a good faith attempt to blow into the breathalyzer machine.
Id. at 402-03, 395 A.2d at 593-94. We held that the driver’s testimony concerning her good faith attempt to provide sufficient breath was insufficient to meet her burden, given the machine operators testimony.
In the present case, the trial court specifically refused to credit the machine operator’s testimony that repeated attempts were made by Harper; rather, the
Affirmed.
Order
Now, June 27, 1988, the order of the Court of Common Pleas of Philadelphia, dated March 26, 1987, at No. 3581 October Term, 1986, is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.