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The Pennsylvania Supreme Court is set to tackle an issue that is often at the core of driving under the influence cases — what constitutes a refusal of a breath test. The commonwealth court in Burke v. Department of Transportation, PICS Case No. 99-1093 (Pa. Commw. June 9, 1999) Friedman, J.; Leadbetter, J., dissenting, ruled that refusing to sign a hospital consent form does not equal refusing to submit to a blood-alcohol test. The petition for allocatur in the case, however, doesn’t focus on the Commonwealth Court’s ruling that requiring the driver to sign the hospital’s form constituted an impermissible “pre-test” test. Instead, it centers on whether a driver’s failure to produce a sufficient breath test equals a refusal and whether such refusal can be nullified by an officer’s offer of another chemical test. Now, having granted allocatur, the state supreme court is poised to decide, “Does a driver’s failure to provide the necessary, sufficient breath samples for a complete and valid breath test, absent a medical reason for such failure, constitute a refusal of the breath test, as a matter of law, where the police do not inform the driver that such conduct constitutes a refusal and offer the driver a subsequent test?” The court will also answer the following question: “Does a police officer’s gratuitous offer to a driver of an opportunity to redeem a prior refusal by submitting to a second or subsequent chemical test erase or ‘waive’ the driver’s initial refusal of testing even though the driver does not redeem that initial refusal by successfully completing the subsequent test?” The commonwealth court answered the first question in the negative and the second question in the affirmative. BACKGROUND On Aug. 3, 1997, the pick-up truck that James V. Burke was driving nearly collided with a parked police car. When Burke stopped his truck, the officer suspected Burke was intoxicated and asked him to submit to several field sobriety tests. Burke failed five out of six of those tests. He was arrested and taken to the police station for further testing. At the police station, Burke was given three breathalyzer tests, giving a total of six breath samples. None was valid because, according to the police officer, Burke failed to provide a steady stream of air. The police then took Burke to the hospital so he could give a blood sample to be tested for alcohol content. The police officer read Burke his warnings, and Burke willingly signed the consent form. But when asked to sign the hospital’s consent form, Burke refused. The police officer deemed Burke’s refusal to sign the hospital form to be a refusal to submit to the blood test. But the trial court sustained Burke’s appeal, ruling first that because the police decided to take Burke to the hospital for a blood test, the invalid results of the breath tests were not applicable. The court then ruled that the refusal to sign the hospital form did not equal the refusal of the test itself. The commonwealth appealed. IMPERMISSIBLE PRE-TEST But the commonwealth court sided with Burke, ruling only that a refusal of the test itself constitutes a legal refusal. “Although licensee refused to sign, or even look at, the hospital form, his refusal related solely to the form; he gave an unqualified, unequivocal assent to the test itself,” Friedman wrote. The court said filling out the form constituted a pre-test procedure that was not allowed under case law. The Department of Transportation argued that O lbrish v. PennDOT 619 A.2d 397 (Pa. Cmwlth. 1992), and Geonnotti v. PennDOT, 588 A.2d 785 (Pa. Cmwlth. 1995), applied to the instant case. Those cases held that a prior refusal — in this case the invalid breath tests — cannot be waived unless another test is successfully completed. The court dismissed that argument, noting that in those cases, the officers immediately noted the licensees’ refusal of the tests and informed them of such. In the instant case, the officer did not indicate to the defendant that the insufficient results of the breath test constituted a refusal, nor did the officer inform Burke that his conduct was a legal refusal. The court then pointed out that the officer had the option of revoking the offer of the blood test at any time, making the failed breath test the legal refusal. The officer chose not to do that. “Accordingly, because [the officer], at the time of the breath test, specifically deemed licensee’s conduct not to be a refusal, because the trial court did not determine that licensee’s insufficient breaths constituted a refusal and because the officers did not expressly revoke their offer of a subsequent blood test, we will not examine licensee’s conduct with respect to the breath test to determine whether it constitutes a refusal,” Popovich wrote. Judge Bonnie Brigance Leadbetter dissented from the majority, relying on Olbrish. “I believe that whether or not a licensee has refused a chemical test is a question of law for us to determine based upon the licensee’s conduct as found by the trial court,” Leadbetter wrote in her one paragraph dissent. “Whether the police ‘deem’ that conduct to be a consent or refusal is irrelevant unless they communicate that view to the licensee and thereby in some manner alter his subsequent behavior, a situation not presented here.” ON ALLOCATUR The commonwealth in its allocatur brief chose to focus more on Burke’s failure to provide a sufficient breath sample. The commonwealth cited two reasons for the state supreme court to accept the case for appeal. First, attorney Timothy P. Wile wrote, the commonwealth court erred by ruling that Burke’s failure to provide an adequate breath sample, absent a valid medical reason, did not constitute a per se refusal of the test. Second, the commonwealth argues in its petition that the lower court erred when it ruled that Burke’s first refusal was deemed waived once he agreed to the second chemical test. “The law has recognized that a police officer’s gratuitous offer to a driver, following a test refusal, to redeem that initial refusal by submitting to a subsequent chemical test, does not excuse or waive the initial refusal and may be withdrawn at any time by the officer prior to the driver’s successful completion of the subsequent test,” Wile wrote. The allocatur brief urges the court to overturn the lower court’s decision also for the benefit of future drivers in similar situations. “Police officers offer drivers second chances in close cases,” the petition says. “The commonwealth court’s decision in this case, if permitted to stand, will discourage police from offering drivers a second chance to complete testing — a result that might benefit the driver in this particular case — but will prejudice other drivers who will not be given similar second chances by police in the future.”

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