Books v. Commonwealth , 109 Pa. Commw. 25 ( 1987 )

Opinion by

Judge Palladino,

This is an appeal by Thomas A. Books from a decision of the Court of Common Pleas of Dauphin County (trial court) affirming the suspension of his drivers license by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to Section 1547 of the Vehicle Code.¹ For the reasons which follow, we affirm.

A police officer observed Books driving with his left tires over the double yellow line and, subsequently, with more than half of his vehicle over the double yellow line. After the officer stopped the vehicle and approached it, he detected the smell of alcohol on Books’ breath. Thereafter, the officer administered four field sobriety tests,² all of which Books failed.

The officer placed Books under arrest for driving under the influence of alcohol, 75 Pa. C. S. §3731, and warned him of the consequences of his failure to submit to a chemical test of blood, breath or urine. He agreed to take a breathalyzer and was transported to Troop H State Police Barracks. However, when that test was administered, Books puffed into the machine, refusing to give a full breath. After four attempts, the operator considered it a refusal. Books did not offer any medical reason why he could not provide an adequate breath sample.

The arresting officer decided to give Books another chance. He transported him to a local hospital and offered him a blood test. Books refused the test, without excuse or reason.³

Thereafter, DOT suspended Books’ operating privileges for one year. On appeal, the trial court affirmed. Books now appeals to this court raising three issues for our consideration.⁴ First, Books asserts that the arresting officer did not have reasonable grounds to believe that Books was operating his vehicle under the influence of alcohol. Second, whether Books’ failure to supply sufficient breath to activate the breathalyzer machine constitutes a refusal of the test. Third, Books contends that he did not receive a warning that his failure to submit to a blood test would cause his license to be suspended. We will treat each issue in order.

Appellant asserts that reasonable grounds are to be equated with the probable cause necessary to effect an arrest. This is clearly not so. Reasonable grounds exist when a person in the police officers shoes viewing these facts could conclude that Books was operating a vehicle under the influence of alcohol. Waldspurger v. Commonwealth, 103 Pa. Commonwealth Ct. 148, 520 A.2d 83 (1987).

In the case at bar, the arresting officer observed Books’ erratic driving, smelled alcohol, and observed him fail four field sobriety tests. The officer’s observations constitute reasonable grounds to require Books to submit to the test.

Books next contends that there is not sufficient evidence that he refused a breath test by failing to supply sufficient breath. In particular, he asserts that the Commonwealth did not substantiate that the required accuracy inspection and calibrations had been performed nor was it proven that the breathalyzer was one approved by DOT under the Vehicle Code.

Our review of the record leads us to conclude that the trial court’s finding of refusal to submit to the test is supported by substantial evidence. Both the arresting officer and the breathalyzer administrator testified that Books did not provide sufficient breath and that he stopped blowing as soon as he saw the machine register. “It is well established law that where a. defendant, when taking a breathalyzer test, does not exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test, thus warranting the suspension of his motor vehicle operator’s license.” Budd Appeal, 65 Pa. Commonwealth Ct. 314, 318, 442 A.2d 404, 406 (1982). Once a refusal has been established, we need not concern ourselves with the operability or suitability of. the machine. Id. at 319, 442 A.2d at 406-407.

Finally, Books asserts that he did not recieve a warning that his failure to submit to the blood test would result in the suspension of his license, and that the refusal was reasonable because of his fear of needles and AIDS. This argument is irrelevant. While the statute states that a driver consents to “one or more chemical tests of breath, blood or urine,” the officer need only offer one such test. Once Books refused the breathalyzer, DOT could suspend his license. 75 Pa. C. S. §1547.

Accordingly, we affirm.

Order

And Now, August 27, 1987, the order of the Court of Common Pleas of Dauphin County in the above-captioned matter is affirmed.

1 75 Pa. C. S. §1547. This section provides an automatic one year suspension for anyone who is placed under arrest for driving under the influence of alcohol or a controlled substance, 75 Pa. C. S. §3731, and refuses to submit to one or more chemical tests of blood, breath or urine.

2 The officer administered the nystagmus gauge test, the hand-to-toe test, the one-leg stand and the finger-to-nose test.

3 Books now asserts that he refused the blood test because of his fear of syringes and Acquired Immune Deficiency Syndrome (AIDS), although he admits that he did not state either reason at the time of his refusal.

4 Our scope of review of a Common Pleas Courts decision in a motor vehicle license suspension case is limited to a determination of whether the findings of feet are supported by competent evidence, errors of law have been committed or the Courts decision demonstrates a manifest abuse of discretion. Waldspurger v. Commonwealth, 103 Pa. Commonwealth Ct. 148, 520 A.2d 83 (1987).