D. Fullam v. Bureau of Driver Licensing

D
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel Fullam,                               :
                     Appellant               :
                                             :   No. 124 C.D. 2020
              v.                             :
                                             :   Submitted: August 28, 2020
Commonwealth of Pennsylvania                 :
Department of Transportation,                :
Bureau of Driver Licensing                   :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: March 30, 2021


              Daniel Fullam (Fullam) appeals from the December 16, 2019 order of the
Court of Common Pleas of Montgomery County (trial court), which denied his appeal
from the notice of the Pennsylvania Department of Transportation (Department),
Bureau of Driver Licensing (Bureau), that suspended his driver’s license due to his
alleged refusal to submit to a chemical breathalyzer test in relation to his arrest for
driving under the influence. Upon review, we reverse.
              By letter mailed August 21, 2017, the Bureau sent Fullam official notice
that his driving privilege would be suspended under section 1547(b)(1)(i) of the




       1
        This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
Vehicle Code, 75 Pa.C.S. §1547(b)(1)(i)2 because he allegedly refused a chemical
breathalyzer test on August 6, 2017. (Original Record (O.R.) Item No. 0.) Fullam
appealed the notice of suspension to the trial court on September 18, 2017.

Id. A
hearing was

scheduled for December 18, 2017. (O.R. Item No. 1.) However, the
hearing was continued numerous times and was eventually held on December 16, 2019.
(Reproduced Record (R.R.) at 2a.)
               At the hearing, Pennsylvania State Police (PSP) Trooper Anthony
Giarrizzo (Trooper Giarrizzo) testified on behalf of the Bureau as follows. (Notes of
Testimony (N.T.) at 8, R.R. at 10a.) Trooper Giarrizzo was working on the night of
August 5, 2017, at a sobriety checkpoint in Montgomery County, where he encountered
Fullam. (N.T. at 9.) Trooper Giarrizzo detected the smell of marijuana emanating from
Fullam’s vehicle, noticed the smell of alcohol on Fullam’s breath, and observed that
his eyes were glassy and bloodshot.

Id. at 9-10.

Trooper Giarrizzo administered the
horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test,
observing signs of impairment during each test.

Id. at 10.

He also administered a
preliminary breath test which returned a blood alcohol concentration (BAC) reading of
.116.

Id. Believing that Fullam

was intoxicated, Trooper Giarrizzo arrested him for
driving under the influence and transported him to the PSP Skippack Barracks for
additional chemical testing.

Id. at 11.

Trooper Giarrizzo explained that Fullam was
cooperative, answered questions, and agreed to undergo field sobriety tests and return
to the PSP barracks without issue.

Id. at 14.

Trooper Giarrizzo testified that Fullam


       2
         This section provides, in relevant part, “that if any person placed under arrest for driving
under the influence of alcohol ‘is requested to submit to chemical testing and refuses to do so, . . . the
department shall suspend the operating privilege of the person . . . for a period of 12 months.’” Bomba
v. Department of Transportation, Bureau of Driver Licensing, 

28 A.3d 946

, 947 (Pa. Cmwlth. 2011)
(quoting 75 Pa.C.S. §1547(b)(1)(i)).



                                                    2
consented to a breathalyzer test but that it was determined by former Trooper Dean
Wright (Trooper Wright) to be a refusal.

Id. at 13.

             Next, Trooper Wright testified as follows. Trooper Wright was employed
with the PSP for 25 years, was stationed at the Skippack Barracks, and was working
there on the night of August 5, 2017. (N.T. at 16.) Trooper Wright was employed as
a certified intoxilyzer operator and maintenance officer.

Id. at 16-17.

On August 5,
2017, he used an accurately calibrated DataMaster breathalyzer machine to perform a
breath analysis test on Fullam.

Id. at 17-18.

Trooper Wright told Fullam that he would
have to produce two separate breath samples and explained to Fullam how to properly
give a breath sample.

Id. at 19.

Trooper Wright explained that Fullam’s first breath
registered on the machine properly, but it appeared that his second breath failed to
register as a proper sample.

Id. at 19.

             Trooper Wright next examined a result ticket that was printed from the
DataMaster (Result Ticket), which depicted the results of Fullam’s test both
numerically and graphically. (N.T. at 20, R.R. at 82a.) Trooper Wright explained that
the two lines on the graph represented the breaths Fullam blew into the DataMaster and
that his first breath registered as a solid line, yielding a BAC reading of .113. (N.T. at
20.) However, he explained that the second line, a dotted one, was the result of Fullam
failing to give a proper breath sample.

Id. at 20-21.

Yet, Trooper Wright could not
recall what Fullam was doing during the second sampling.

Id. at 21-22.

Specifically,
Trooper Wright explained as follows:

             Okay. If the first sample was good, I’m going to tell you it
             was good. Okay? And I’m going to tell you typically -- I
             ran hundreds of tests. Not thousands, hundreds -- give me
             the same as you gave me the first time. This is any person
             that comes through that I’m giving the test to, Your Honor.
             Okay? You gave me a good first sample, let’s do it a second


                                            3
             time, because if you don’t do it a second time, you can
             disable this instrument. And if you disable this instrument
             that means it’s going to be out of service until I put it back
             up. Since I was the maintenance officer, that’s why Skippack
             had me run all of their testing for DUI checkpoints.

             So, he must have not been giving a proper sample the second
             time. And I’m going to allow you to do it once, okay, you
             know, take a deep breath, you’re going to blow like you’re
             blowing up a balloon. Do it like the first time. He must have
             not [done] it like the first time. So, what I have to do, and
             what you’re taught, Your Honor, is you abort the test before
             he disabled the instrument.


Id. at 22-23.

Thus, instead of having the machine disabled, Trooper Wright aborted
the test and considered the test to be a refusal by Fullam.

Id. at 23.

             On cross-examination, Trooper Wright testified that he had a vague
independent recollection of Fullam’s test.

Id. at 24.

Therefore, he explained that his
direct testimony explained his normal procedure and what he would typically do in
administering a breath test.

Id. He further explained

that he had no independent
recollection that Fullam “demonstrated a demeanor or symptoms that he was
intentionally trying not to give a proper breath sample.”

Id. at 26.

Following Trooper
Wright’s testimony, the Bureau rested.
             Next, Fullam testified, and explained that he provided both the first and
second breath sample in the DataMaster to the best of his ability and did not
intentionally or purposefully fail to give an adequate sample.

Id. at 29.

Fullam testified
that he was cooperative with the officers from the time he was stopped on the road to
when he was taken to the Skippack Barracks.

Id. at 29-30.

             Next, Ronald Henson, Ph.D., testified on Fullam’s behalf. Dr. Henson
was accepted by the court as an expert in breathalyzers without objection.

Id. at 36.

Dr. Henson testified that he was familiar with the DataMaster machine and reviewed


                                            4
the DataMaster records in the instant case.

Id. at 37.

Dr. Henson reviewed the same
Result Ticket as Trooper Wright.

Id. Dr. Henson testified,

that based on his
experience, he did not believe Fullam purposefully failed to provide a sufficient breath
sample. To the contrary, he explained that

             at the bottom of [the Result Ticket] it says, “blank error.” A
             blank error has nothing to do with an individual blowing or
             attempting to blow into a device. That error would be called
             an invalid sample, perhaps, but a blank error is simply
             restricted to the machine or the device itself in that the
             chamber is not able to clear itself to purge all of the ethanol
             out of the chamber to get it to a .003 or less to continue with
             testing. So that is a machine or device error issue, nothing to
             do with an individual.

Id. at 38-39.

Dr. Henson explained that if Fullam did not give a proper breath sample,
the Result Ticket would have been “different in profile and it would likely [have said]
either incomplete test or invalid sample.”

Id. at 39.

He explained that the dotted line
on the Result Ticket, which represented the airflow, was generally consistent with an
individual attempting to give proper air flow.

Id. at 42.

Nevertheless, Dr. Henson
ultimately concluded that the DataMaster encountered a blank error, and it appeared
from the Result Ticket that Fullam was attempting, to the best of his ability, to register
a proper breath example.

Id. at 44-45.

             On December 16, 2019, the trial court denied Fullam’s appeal and
reinstated his suspension. (O.R. Item No. 14.). Fullam sought reconsideration of the
trial court’s order, which was denied on January 6, 2020. (O.R. Item No. 17.) Fullam
appealed to this Court.
             The trial court issued an opinion dated March 18, 2020, in support of its
December 16, 2019 order. (Trial Ct. Op. at 1.) The trial court noted that on August 5,
2017, Fullam’s vehicle was stopped, and Trooper Giarrizzo noticed signs that Fullam


                                               5
was under the influence of alcohol.

Id. The trial court

also noted that Fullam was
arrested for driving under the influence and was transported to the Skippack Barracks
to undergo a breath test on the DataMaster machine, to which he consented.

Id. The
trial court

found that Trooper Wright administered the test on the DataMaster machine,
which was accurately calibrated.

Id.
The trial court

concluded that, based on Trooper Wright’s testimony about
Fullam’s failure to give a proper breath sample and the Result Ticket, a refusal had
occurred.

Id. The trial court

stated Fullam failed to present evidence that he was
incapable of following Trooper Wright’s instructions or to provide a sufficient breath
sample. (Trial Ct. Op. at 2.) The trial court held that, under Pennsylvania law the
failure to provide a required breath sample constitutes a refusal.

Id. The trial court

found “the testimony of the two Troopers [(Giarrizzo and Wright)] to be credible” and
it also found “the testimony of [Fullam’s] expert [(Dr. Henson)] was not credible or
persuasive.”

Id. In sum, the

court concluded that Fullam “did not follow [Trooper
Wright’s] instructions and provide a proper breath sample,” and therefore denied the
license suspension appeal.

Id.

Discussion
On appeal,3

Fullam raises two issues for this Court’s review. First,
whether the trial court’s conclusion that he refused a chemical test was supported by


       3
          The issue of whether a licensee refused to submit to a chemical test is a question of law
subject to plenary review by this Court. Mueller v. Department of Transportation, Bureau of Driver
Licensing, 

657 A.2d 90

, 93 (Pa. Cmwlth. 1995). Our scope of review is limited to “determining
whether the trial court’s findings are supported by competent evidence, whether errors of law have
been committed, or whether the trial court’s determinations demonstrate a manifest abuse of
discretion.” McCloskey v. Department of Transportation, Bureau of Driver Licensing, 

722 A.2d
1159

, 1161 (Pa. Cmwlth. 1999).


                                                6
the evidence. Second, whether the trial court erred in allowing Trooper Wright to
testify to his assumptions as to whether Fullam refused the test.
             As to the first issue, Fullam maintains that the Bureau failed to carry its
burden to establish that Fullam refused the test. Fullam analogizes this case to Reinhart
v. Department of Transportation, Bureau of Driver Licensing, 

954 A.2d 761

(Pa.
Cmwlth. 2008), where a licensee provided two breath samples, but was considered to
have refused the test after giving the second sample. Fullam explains that, in Reinhart,
the breathalyzer machine shut down and printed out a slip indicating a sample
deviation, and the officer determined this constituted a refusal by the licensee. We held
the facts did not establish a refusal because the sample deviation slip indicated a
malfunction by the machine, and it was erroneous for the officer to fail to allow the
licensee to take a second test following the malfunction.
             Fullam argues that this case is also analogous to Bomba v. Department of
Transportation, Bureau of Driver Licensing, 

28 A.3d 946

(Pa. Cmwlth. 2011). There,
Fullam argues, we affirmed a lower court’s determination that a single failed attempt
to perform a breath test did not constitute a refusal where the driver’s improper breath
sample was attributable to the stress of her first arrest. He argues that our conclusion
rested on the fact that there was no evidence that the licensee was intentionally
attempting to interfere with the test, but to the contrary was cooperative.
             Fullam argues that the trial court lacked a factual basis to conclude that he
refused the test because the testimony established that he was cooperative, and the
second breath he attempted to give the machine did not register due to a machine error.
Further, Fullam argues that Trooper Wright failed to testify to any of Fullam’s actions
showing he was intentionally or deliberately attempting to avoid providing a sufficient
sample. In Fullam’s view, Trooper Wright’s candid acknowledgement that he had a



                                            7
vague recollection of Fullam’s test bolsters the conclusion that he did not refuse the
test.
             Moreover, Fullam argues that Trooper Wright’s testimony regarding the
solid and dotted line on the Result Ticket is belied by the record because the legend on
Result Ticket indicates that the solid line is the “Alcohol” level of one breath, and the
dotted line is the “Flow Rate” of the same – meaning, they are not separate breaths but
two different measurements of the same one. This is the inverse of Trooper Wright’s
contention that each line represents a different breath sample.
             As to the second issue, Fullam argues that the trial court erred in allowing
Trooper Wright to testify in the form of his assumptions. Again, Fullam points to
Trooper Wright’s testimony that he could not recall the specifics of Fullam’s test, but
that he was testifying about his assumptions of what happened during Fullam’s test.
Fullam argues that under Pennsylvania Rule of Evidence (Pa.R.E.) 602(a), a witness is
forbidden to testify to a matter unless evidence is presented sufficient to support a
finding that the witness has personal knowledge of the matter. Pa.R.E. 602(a). He also
argues that under Rule 701 of the Pennsylvania Rules of Evidence, a lay witness’s
testimony to his or her opinions or inferences is limited to those opinions or inferences
“which are rationally based on the perception of the witness, helpful to a clear
understanding of the witness’ testimony[,] or the determination of a fact in issue. . . .”
Pa.R.E. 701. Fullam argues that at the time of Trooper Wright’s testimony, he had no
present knowledge of the circumstances surrounding the breath tests, and was not
qualified as an expert. Thus, Fullam argues, Trooper Wright’s testimony was limited
under Pa.R.E. 701 to the inferences rationally related to his perceptions––none of
which he could recall. As such, Fullam asserts that Trooper Wright’s testimony was
inadmissible.



                                            8
               In opposition, the Bureau argues that the trial court was correct in holding
that Fullam refused to submit to a chemical test, and that the trial court did not abuse
its discretion in allowing Trooper Wright to testify to his normal practice in
administering breath tests.
               First, the Bureau maintains it met its burden to establish that Fullam
refused the test. The Bureau argues that under Pennsylvania law, anything less than
unqualified and unequivocal assent constitutes a refusal, and that officers need only
provide a single opportunity to provide two sufficient breaths. Accordingly, the Bureau
argues that the trial court’s conclusion that Fullam refused the test was supported by
the evidence.
               The Bureau argues that Trooper Wright’s testimony regarding the Result
Ticket was correct, and that the second dotted line represented the second breath, which
was determined to be a refusal.             Additionally, the Bureau argues that Trooper
Giarrizzo’s statement that he signed the DL-26A form determining that the test was a
refusal, supports the conclusion that Fullam refused the test.4 In sum, the Bureau
argues that the trial court found Trooper Wright’s testimony that Fullam refused the
test to be credible and persuasive and Fullam otherwise failed to present evidence that
he was incapable of providing a sufficient sample on the second breath.
               As to the testimony of Trooper Wright, the Bureau maintains that he
testified to his habit, which was admissible. The Bureau argues that Trooper Wright
testified to what he would normally do in administering a breath test, and what his usual
process and procedure was.


       4
         The Bureau also maintains that Trooper Giarrizzo’s testimony that “[he] was informed by
[Trooper Wright] that it was a refusal due to the breath test sample. [Fullam] did not complete it as
instructed,” is not hearsay. (Bureau’s Br. at 20.) This assertion is not challenged on appeal. However,
consistent with note 6, infra, we need not discuss this issue.


                                                  9
     Whether the Bureau Met its Burden to Prove Fullam Refused the Test
             Where the Bureau seeks to sustain a license suspension under what is
commonly known as the Implied Consent Law, Section 1547(b) of the Vehicle Code,
75 Pa.C.S. §1547(b), the Bureau must establish that “the driver (1) was arrested for
driving under the influence of alcohol, (2) was asked to submit to the breathalyzer
test, (3) refused to do so, and (4) was specifically warned that a refusal would result in
the suspension of his driver’s license.” Mondini v. Department of Transportation,
Bureau of Driver Licensing, 

875 A.2d 1192

, 1194-95 (Pa. Cmwlth. 2005). As to these
elements, Fullam only challenges element three, that the Bureau failed to prove that he
refused the test. The Bureau “bears the burden of establishing a licensee failed to
supply sufficient breath into the breathalyzer.” 

Reinhart, 954 A.2d at 766

. “Any
response from a licensee that is less than an unqualified, unequivocal assent to a
chemical test constitutes a refusal. . . A licensee’s refusal need not be expressed in
words; a licensee’s conduct may constitute a refusal to submit to testing.” 

Bomba, 28
A.3d at 949

(citing Hudson v. Department of Transportation, Bureau of Driver
Licensing, 

830 A.2d 594

, 599 (Pa. Cmwlth. 2003)). The question of whether a licensee
has refused to submit to a chemical test is a “legal one, based on the facts found by the
trial court.” Factor v. Department of Transportation, Bureau of Driver Licensing, 

199
A.3d 492

, 496 (Pa. Cmwlth. 2018) (quoting Nardone v. Department of Transportation,
Bureau of Driver Licensing, 

130 A.3d 738

, 748 (Pa. 2015)). “The question of refusal
by a licensee to consent to chemical testing ‘turn[s] on a consideration of whether the
[licensee’s] overall conduct demonstrates an unwillingness to assent to an officer’s
request for chemical testing.’” 

Factor, 199 A.3d at 496

(quoting 

Nardone, 130 A.3d
at 749

.)




                                           10
             Our decision in Bomba is instructive. In that case, the licensee was
arrested for driving under the influence, and was taken to the police station to perform
a chemical breath 

test. 28 A.3d at 948

. The licensee attempted to give one breath
sample, which was insufficient.

Id. The officer administering

the test explained that
the licensee gave a series of short breaths rather than one continuous breath.

Id. After
the licensee

was unable to provide a sufficient sample after two minutes, the machine
prompted the officer to report whether a refusal occurred, and the officer indicated that
one had.

Id. The officer admitted

that the licensee asked to retake the test but explained
that she was only required to give one test.

Id.
The licensee testified

that she tried as best as she could to provide a
sufficient breath.

Id. She explained, however,

that she was unable to provide a
sufficient sample because she was very upset by her arrest.

Id. After she learned

she
was considered to have refused the test she immediately asked for another chance to
do the test, which the officer refused.

Id. The licensee appealed

to the trial court,
which sustained her appeal on the grounds that the licensee’s “unequivocal and
unqualified consent to take the breath test, her subsequent inability to perform it
properly, despite [attempts] to do so and her immediate request to retake the breath test,
[did] not amount to a refusal under these circumstances.”

Id. at 949.

The Bureau
appealed to this Court.

Id.
Before this Court

the Bureau argued that it was not required to give a
second test.

Id. However, we explained

there was no evidence that the licensee
employed stall tactics to avoid taking the test or had to be cajoled by the officer to
comply with testing.

Id. at 950.

To the contrary, this Court noted that the licensee was
polite and cooperative, and requested another opportunity to provide an adequate
sample.

Id. at 951

. 

Further, we noted that the licensee’s request to take another test



                                           11
was well within the two-hour window of time following an arrest during which a breath
test can be administered. See 75 Pa.C.S. §3802(a)(2).5
                 In sum, we 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.

Id. at 951

(emphasis added).
                 Here, when reviewing the highly fact-sensitive nature of this case, we
conclude that the Bureau failed to put forth sufficient evidence as to the “determinative
factor [of] whether [the Bureau’s] evidence show[ed] that [Fullam] deliberately tried


       5
           This section establishes what is known as the “two-hour rule,” providing that:

                 [a]n individual may not drive, operate or be in actual physical control
                 of the movement of a vehicle after imbibing a sufficient amount of
                 alcohol such that the alcohol concentration in the individual’s blood or
                 breath is at least 0.08% but less than 0.10% within two hours after the
                 individual has driven, operated or been in actual physical control of the
                 movement of the vehicle.

75 Pa.C.S. §3802(a)(2).


                                                    12
to delay or undermine the testing process.”

Id. Although the trial

court determined the
testimony of Troopers Wright and Giarrizzo was credible, the Troopers’ testimony is
insufficient to establish that Fullam refused the test. First and foremost, Trooper
Wright did not testify that Fullam was exhibiting any physical behaviors indicating that
he was attempting to refuse the test. There was no testimony by Trooper Wright
indicating that Fullam was merely puffing air into his cheeks, blowing weakly, or
blowing out the side of his mouth. Trooper Wright did not testify that he had to cajole
Fullam, or that he told him to blow harder or the breath would not register. He only
testified that, based on his reading of the Result Ticket, Fullam’s breath was “not
proper.” (N.T. at 21.) Yet, Trooper Wright testified that if the second breath was not
good, it would have disabled the instrument. Nevertheless, he stopped the test before
the DataMaster was disabled; therefore, the Result Ticket does not establish a refusal
either.
             To the contrary, Trooper Wright testified that he did not have “any
independent recollection [that Fullam] demonstrated a demeanor or symptoms
that he was intentionally trying not to give a proper breath sample.” (N.T. at 25,
R.R. at 27a) (emphasis added). Trooper Wright could not definitively testify to
Fullam’s behavior, and instead merely assumed that Fullam “must have not been giving
a proper sample the second time.” (N.T. at 22, R.R. at 24a.) Trooper Wright explained
that he only had a vague independent recollection of Fullam’s test, and that his
testimony was limited to “what [he] would normally [do] and usually [does] in [his]
process and procedure in cases like this.” (N.T. at 24, R.R. at 26a.) Moreover, the
Bureau did not refresh Trooper Wright’s recollection as to any deliberately evasive
behavior on Fullam’s part using the DL-26A form or other similar documents.




                                          13
              In many cases we have identified the kind of testimony establishing that a
refusal occurred. In all these cases there was testimony by the administering officer
indicating that the licensee was exhibiting behaviors indicating that he was deliberately
refusing the test. See Fernandez-Solano v. Department of Transportation, Bureau of
Driver Licensing (Pa. Cmwlth., No. 1731 C.D. 2019, filed Aug. 21, 2020) (unreported)6
(concluding that a refusal occurred where the officer testified that the licensee “would
begin to blow, and then he would stop”); Giannopoulos v. Department of
Transportation, Bureau of Driver Licensing, 

82 A.3d 1092

, 1095 (Pa. Cmwlth. 2013)
(concluding that a refusal occurred where the test administrator testified that he told
the licensee to “blow harder and steady,” but that there was a “stuttering of the breath
or an inconsistent . . . flow of his breath”); Burkhart v. Department of Transportation,
Bureau of Driver Licensing, 

934 A.2d 161

, 163 (Pa. Cmwlth. 2007) (concluding that a
refusal occurred where the administrator testified that the “[l]icensee stopped blowing
at times and did not keep a tight seal around the mouthpiece”); Finney v. Department
of Transportation, Bureau of Driver Licensing, 

721 A.2d 420

, 422 (Pa. Cmwlth. 1998)
(concluding that a refusal occurred after eight attempts where the licensee failed to
make a tight seal with his mouth around the breathalyzer tube, would cause his breath
to escape from the side of his mouth, or would puff air into his cheeks).
              Additionally, in numerous cases where this kind of deliberate behavior
was attested to, licensees have been given multiple chances to provide a sufficient
sample or have been warned they were not blowing into the breathalyzer properly. See
Lucas v. Department of Transportation, Bureau of Driver Licensing, 

854 A.2d 639

,


       6
        Fernandez-Solano is an unreported opinion. Under section 414(a) of this Court’s Internal
Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code
§69.414(a).



                                              14
641 (Pa. Cmwlth. 2004) (offering licensee two attempts to complete a breath test, where
licensee was allowing air to escape the sides of his mouth while attempting to produce
a sample); Postgate v. Department of Transportation, Bureau of Driver Licensing, 

781
A.2d 276

, 278 (Pa. Cmwlth. 2001) (warning the licensee “several times that he was
[not] blowing. . . .”); Department of Transportation, Bureau of Driver Licensing v.
Pestock, 

584 A.2d 1075

, 1076 (Pa. Cmwlth. 1990) (providing the licensee with several
opportunities to take the test and explaining the procedure each time after the licensee
was allowing air to escape from the sides of his mouth).
             Simply, this kind of testimony was not offered here nor does the Result
Ticket from the DataMaster indicate that Fullam provided an “insufficient sample.”

Reinhart, 954 A.2d at 767

(“In all of these cases, however, the fact-finder determined
the licensees deliberately failed to provide sufficient breath samples. The basis for
these determinations was either credited testimony of the administering officer or an
evidence ticket indicating the licensee provided an insufficient sample.”). Although
the licensee in Bomba asked for another opportunity to take the test, that fact is not
determinative in this matter due to the highly fact-sensitive nature of these cases. Here,
due to the lack of testimony that Fullam was deliberately attempting to avoid giving an
adequate sample, it would have been appropriate for Trooper Wright to ask Fullam to
give another test. This is bolstered by the fact that there was no testimony that Fullam
was close to being outside of the two-hour window specified in Section 3802(a)(2) of
the Vehicle Code, 75 Pa.C.S. §3802(a)(2), for obtaining a sample. This Court has
stated that there is no such rule that “one, and only one unsuccessful attempt to take the
test in all cases can be considered a refusal by the police and [the Bureau].” Department
of Transportation, Bureau of Driver Licensing v. Harper, 

544 A.2d 80

, 82 (Pa.




                                           15
Cmwlth. 1988).7 Based on the record before us, Fullam should have been given another
opportunity to complete the test, and we cannot conclude that he otherwise refused the
test.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




        7
         Due to our disposition, we need not answer the question of whether Trooper Wright’s
testimony as to his assumptions was admissible under the Pennsylvania Rules of Evidence. As we
have concluded, the testimony of Trooper Wright—admissible or not—was insufficient to carry the
Bureau’s burden.


                                              16
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel Fullam,                        :
                 Appellant            :
                                      :    No. 124 C.D. 2020
            v.                        :
                                      :
Commonwealth of Pennsylvania          :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                  ORDER


            AND NOW, this 30th day of March, 2021, the December 16, 2019
Order of the Court of Common Pleas of Montgomery County is reversed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge

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