Campbell v. Commw. of Pa., PICS Case No. 14-0386 (Pa. Commw. March 6, 2014) Brobson, J. (16 pages).

COMMONWEALTH COURT

The Legal Intelligencer

CRIMINAL LAW

Driving Licenses • License Suspension • Blood Alcohol Testing

Campbell v. Commw. of Pa., PICS Case No. 14-0386 (Pa. Commw. March 6, 2014) Brobson, J. (16 pages).

The trial court properly suspended Campbell's driving license for refusing to submit to chemical testing, despite her allegation that the prosecution did not establish that the deputy sheriff who read the implied consent warnings was a "police officer" for purposes of the implied consent law. Affirmed.

On Feb. 12, 2012, Campbell was arrested and charged with driving under the influence. On March 27, 2012, she was notified that her license was suspended for one year as a result of her refusal to submit to chemical testing following her arrest. She appealed the suspension.

Officer Deussing testified that when he arrived to investigate a two-car collision, he spoke with Campbell and noticed an odor of alcohol on her breath. She first said she had not been drinking, but later admitted to having had two drinks. Deussing performed field sobriety tests and used a portable breath test which registered a blood-alcohol level of 0.18. Deussing arrested Campbell and took her to the county sheriff's office which had a facility for performing chemical testing. Deputy Rorick, a certified breath test operator, read the implied consent warnings to Campbell several times and she indicated she understood the warnings. Campbell attempted to complete the test twice, but did not provide a sufficient breath sample either time. After the second sample was insufficient, the deputy recorded a refusal. Campbell did not dispute the deputy's testimony, but explained she thought she should stop blowing when the machine beeped.

Campbell alleged that the DOT failed to establish a prima facie case because the deputy was not a police officer under the Implied Consent Law. She asserted that the trial court erred in concluding she waived the issue of whether the DOT established she received the required warnings and argued that she did not have to raise the question until she filed her concise statement of errors complained of on appeal. Campbell had two opportunities to raise this issue with the trial court, she did not and thus, the trial court did not err in finding the issue waived. Campbell also attempted to rely on the Rules of Criminal Procedure in arguing that she could properly raise the issue for the first time on appeal. However, this was a civil matter and the Rules of Criminal Procedure did not apply.

Additionally, certain decisions of this court holding that the warning element contained in §1547 requires a police officer to administer the Implied Consent Warnings does not mean that the DOT must always offer proof on the issue.

Campbell also alleged that she was not afforded a reasonable opportunity to comply with the testing. The deputy offered her more than one opportunity to comply and he provided straightforward instructions as to how to blow into the tube. Campbell failed to provide a sufficient amount of breath in her two opportunities. Additionally, the trial court accepted the deputy's testimony that he observed Campbell "blowing out the side slightly" in her second attempt. The trial court properly concluded that the two opportunities were sufficient because the deputy fully explained the process to Campbell and she failed to comply with instructions.

Where the trial court did not find Campbell credible, there was no factual basis from which the trial court could have concluded that this matter was more akin to Bomba than to Todd.

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