MEMORANDUM OPINION BY JUDGE WOJCIK FILED: December 12, 2016

Arnell Alan Cobb (Licensee) appeals the order of the Luzerne County Court of Common Pleas (trial court) dismissing his statutory appeal from an 18- month suspension of his operating privileges imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) under Section 1547(b)(1)(ii) of the Vehicle Code,1 and from a 1-year 1 75 Pa. C.S. §1547(b)(1)(ii). Section 1547(b)(1)(ii) sets forth the following penalties that may be imposed if a licensee refuses to consent to chemical testing to determine his blood alcohol content: (b) Suspension for refusal.— (1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the (Footnote continued on next page…) disqualification of his privilege to drive a commercial motor vehicle under Section 1613(d.1),2 based on his refusal to submit to chemical testing in connection with his arrest for violating Section 3802 of the Vehicle Code3 (relating to driving under the influence (DUI) of alcohol or controlled substance). We affirm. (continued…) testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows: *** (ii) For a period of 18 months if any of the following apply: *** (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802[.] Licensee’s Certified Driving Record shows that he had been previously sentenced for violating Section 3802 at the time of his refusal. Reproduced Record (R.R.) at 62a, 80a. 2 75 Pa. C.S. §1613(d.1). Section 1613(d.1) states, in relevant part, that “[u]pon receipt of a report of test refusal, the department shall disqualify the person who is the subject of the report for the same period as if the department had received a report of the person’s conviction for violating one of the offenses listed in Section 1611(a).” In turn, Section 1611(a)(1) provides, in pertinent part, that “[u]pon receipt of a report of conviction the department shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle or school vehicle for a period of one year for the first violation of . . . section 3802 . . . .” 75 Pa. C.S. §1611(a)(1). Licensee’s Certified Driving Record shows that he did not have a commercial license at the time that he was previously convicted for violating Section 3802. R.R. at 62a, 80a. 3 75 Pa. C.S. §3802.

On August 10, 2015, Licensee was arrested by an officer with the Wilkes-Barre Police Department on suspicion of DUI and was asked to submit to a breathalyzer test which would be used to determine his blood alcohol content. However, after he was given the implied consent and O’Connell4 warnings provided on the Department’s Form DL-26,5 Licensee refused to provide a breath sample.

As a result, Licensee received notice from the Department that his operating privilege was suspended for a period of 18 months pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, and he was disqualified from operating a commercial vehicle for 1 year pursuant to Section 1613(d.1), for his refusal to submit to testing. Licensee appealed the license suspension to the trial court. At the hearing in the trial court, the Department entered into the record Licensee’s Certified Driving record. The parties also stipulated that the Department had sustained its initial burden of demonstrating that his operating privilege should be suspended under Section 1547 by showing that he: (1) was arrested for DUI by a police officer who had reasonable grounds to believe that he was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol in violation of Section 3802; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that his refusal might result in a license suspension and would result in enhanced penalties if he was later convicted of violating Section 3802. See Martinovic v. Department of Transportation, 881 A.2d 30, 34 (Pa. Cmwlth. 2005).

(continued…) $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.00. 4. You have no right to speak with an attorney or anyone else before deciding whether to submit to the 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 test. R.R. at 71a.

Licensee did not testify, but argued that he did not make a knowing and conscious decision to refuse the chemical testing because he was physically incapable of submitting to the chemical testing of his breath because he suffers from an obstructive lung disease. In support, Licensee presented the testimony of Cathy L. Young, M.D. (Dr. Young), a physician board certified in internal medicine, pulmonary medicine, and critical care medicine, who was qualified as an expert in pulmonology. N.T.^[6] at 3-4. As the trial court found:

Dr. Young indicated she examined [Licensee] on August 27, 2015, seventeen days after his arrest on August 10, 2015. She determined he needed to undergo pulmonary function testing which was conducted on that date and “showed that he had moderately severe obstructive lung disease. He had normal lung volumes and normal diffusion capacity. These tests show basically an obstructive lung disease because of the reversibility with the bronchodilator most consistent with asthma.” (N.T. [at] 5).

The witness was asked whether that kind of ailment or disease would prevent him from being able to expel volumes of air required for a breath test. Dr. Young responded, “If someone was having a significant asthma exacerbation at the time, he could not have blown hard enough in the device to get a reading.” ([Id.]).

The doctor further testified that [Licensee] had a follow up appointment the week before the hearing and was placed on Symbicort and also given a rescue inhaler.

During cross-examination, the physician was asked whether [Licensee] related what happened on August 10, 2015, and responded, “He basically said to me at that time he felt he could not blow into the machine and he was having difficulty with his breathing.” ([Id. at] 6).

When asked whether alcohol would affect the Licensee’s ability to make a significant or sufficient sample of his breath the expert responded, “It might from a mental standpoint make it difficult for him to do the test properly, but given enough tries it’s not going to mess up his airflow to be able to do the test.” ([Id. at] 7).

When specifically asked whether the doctor knew if [Licensee] was having an episode or a pulmonary event on August 10, 2015, she replied, “I do not know. I was not there.” The witness was next asked whether she could render an opinion within a reasonable degree of medical certainty that alcohol consumption was not a contributing factor to [Licensee]’s inability to make a sufficient sample, and replied, “Simply as a pulmonologist I can’t say anything about that.” ([Id.]). Trial Court 3/4/16 Opinion at 6-7. The trial court denied Licensee’s appeal, explaining that it rejected Licensee’s expert testimony because it was “equivocal” and “insufficient to establish a knowing and conscious refusal.” Trial Court 3/4/16 Opinion at 8. Regarding Dr. Young’s testimony, the trial court noted “that she did not rule out alcohol as a contributing factor to the licensee’s inability to offer a knowing and conscious refusal,” and that she “related no history taken from the licensee, no identification of or review of any of his medical records and no examination of any investigative report or probable cause affidavit.” Id. The trial court concluded that “[t]he record in the instant matter clearly establishes, by stipulation, that [the Department] satisfied the four criteria to suspend the operating privilege of [Licensee] pursuant to Section 1547,” and that “the evidence offered by [Licensee] is categorically insufficient in establishing that he was unable to provide a knowing and conscious refusal to submit to chemical testing.” Id. As a result, the trial court issued the instant order dismissing Licensee’s statutory appeal.

On appeal,7 Licensee argues that his operating privileges should be reinstated because Dr. Young’s unequivocal and competent medical testimony showed that he was physically unable to submit to the requested breath test due to his pulmonary disease and, as a result, his refusal was not knowing and conscious. Alternatively, Licensee asserts that the trial court erred in failing to find facts relating his physical inability to perform the test. Once the Department’s burden is met under Section 1547, a licensee may avoid the mandatory license suspension by proving that: (1) he was physically incapable of completing the requested testing; and (2) his refusal was not knowing and voluntary. Martinovic, 881 A.2d at 34.8 Additionally, a licensee has a duty to inform the police of any known medical conditions that are not obvious which affects his ability to perform a chemical test. Whistler v. Department of Transportation, Bureau of Driver Licensing, 882 A.2d 537, 540 (Pa. Cmwlth. 2005); Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 424 (Pa. Cmwlth. 1998). The purpose of this notification requirement is so that an alternative form of chemical testing that the licensee could perform can be administered. Berman v. Department of Transportation, Bureau of Driver Licensing, 842 A.2d 1025, 1027-28 (Pa. Cmwlth. 2004). Where a licensee fails to inform the police officer administering the breathalyzer test that he suffers from a medical condition preventing successful completion of the test, the licensee is not permitted to present testimony to establish that the medical condition allegedly existed at the time of the test. Finney, 721 A.2d at 424; Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa. Cmwlth. 1995). In other words, “[i]f the officer was not so notified, the licensee is precluded from relying upon any such condition or inability as an affirmative defense to a suspension as a consequence of a test refusal.” Hatalski, 666 A.2d at 390. The only exception under which a licensee is not precluded from relying on such condition as an affirmative defense is where “he did not know that he had a condition which affected his ability to produce enough breath to complete the breathalyzer test.” Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000).9 Although Dr. Young testified that Licensee could not have blown hard enough in the breathalyzer to get a reading if he was “having a significant asthma exacerbation at the time” of testing,10 Licensee did not present any competent evidence that he was experiencing such an exacerbation at the time of testing; that he communicated such to the officer administering the test; or that he was unaware of his pulmonary disease at that time. In the absence of such evidence, Licensee was precluded from presenting Dr. Young’s testimony to establish that he suffered from the pulmonary disease or relying upon it as an affirmative defense to the suspension and disqualification based upon his refusal to submit to the breathalyzer test.^[11] As a result, the trial court did not err in determining that Licensee failed to sustain his burden of proving that he was physically incapable of completing the requested testing at the time of testing and that his refusal at that time was not knowing and voluntary.^[12] Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arnell Alan Cobb, : : No. 2644 C.D. 2015 Appellant : : v. : : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

ORDER

AND NOW, this 12th day of December, 2016, the order of the Luzerne County Court of Common Pleas dated November 24, 2015, at No. 9854 of 2015 is AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge