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Was that a deliberate refusal? (Or do you deserve a second chance?)

| Mar 30, 2021 | Firm News

Today, the PA Commonwealth Court reversed the trial court’s decision to deny licensee’s appeal of a refusal-based license suspension adding that under the circumstances, the licensee “should have been given another opportunity to complete the test.”

In the case at issue, the Trooper administering the test did not testify that the licensee was exhibiting any physical behaviors indicating that he was attempting to refuse a breathalyzer test. There was no testimony indicating the licensee was “merely puffing air into his cheeks, blowing weakly, or blowing out the side of his mouth.” There was no testimony that the Trooper operating the DataMaster device had to “cajole” the licensee or tell him “to blow harder or the breath would not register.” The Trooper simply testified that, based on his reading of the Result Ticket, the licensee’s second breath sample was “not proper.” Furthermore, although the Trooper testified that “in the event the second breath sample was not good, it would have disabled the instrument,” he nonetheless stopped the test before the DataMaster was disabled. As a result, the DataMaster ticket did not establish a refusal either.

Acknowledging that these cases are fact-specific, the Commonwealth Court has seemingly opened the door to permit similar arguments in license appeal cases involving a refusal to submit to a chemical test.

Quoting from prior case law, the Commonwealth Court explained that

[i]t is well established that anything other than an unqualified, unequivocal assent to a chemical test constitutes a refusal. What is less clear is how many chances a licensee must be given to consent or refuse. Refusal cases are highly fact-sensitive. The crucial, determinative factor we glean from the cases is whether [the Bureau’s] evidence shows that the licensee deliberately tried to delay or undermine the testing process. Such evidence was simply not present in this case. Rather, the evidence showed, and the trial court found, that Licensee made a good faith, but unsuccessful, attempt to provide a breath sample and immediately requested to attempt the test a second time. This conduct does not constitute a refusal. Stated otherwise, [the Bureau] is incorrect that in every case where the officer decides not to give the licensee a second chance at a breathalyzer, it has proven a refusal to consent to chemical testing.

The Commonwealth Court was very interested in evaluating the demeanor of the licensee during the administration of the test. And, although acknowledging “the trial court determined the testimony of [the] Troopers … was credible,” the appellate court nonetheless found it “insufficient to establish that [the licensee] refused the test.”

Perhaps more notable than the conclusion that the licensee did not refuse the test was the appellate court’s conclusion that the licensee “should have been given another opportunity to complete the test.”

Accordingly, those who do not deliberately try to delay or undermine the breath test may all deserve a second chance.

Fullam v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, No. 124 C.D. 2020 (March 30, 2021).

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