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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Mondini,
:

Appellant :

:
v.

:

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
: No. 1060 C.D. 2004
Bureau of Driver Licensing
: Submitted: January 14, 2005
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE COLINS

FILED: March 1, 2005

Vincent Mondini (Mondini) appeals an order of the Court of Common
Pleas of Allegheny County, upholding a suspension by the Pennsylvania
Department of Transportation (DOT) of his driver's license for refusal to submit to
chemical testing in violation of the Implied Consent Law.1 We reverse.

On April 7, 2004, Officer Snyder observed a car, driven by Mondini,
tailgating his police cruiser. Officer Snyder pulled Mondini's car over and detected
the odor of alcohol coming from the vehicle. Officer Snyder had Mondini perform
field sobriety tests and then arrested him for Driving Under the Influence (D.U.I.)

1 Vehicle Code 75 Pa. C.S. §§101-9805; Implied Consent Law 75 Pa. C.S. §1547(b).

After arresting Mondini, Officer Snyder drove him to the Penn Hills Police Station
for a breath test.

The breath test was administered by Officer Diulus, the intoxilyzer
operator. According to the testimony of Officer Snyder, Officer Diulus read the
Implied Consent warnings to Mondini. Both officers and Mondini signed the DL-
26 form containing the warnings. Officer Snyder testified that Officer Diulus
explained how to perform the breath test to Mondini by showing him where the
mouth piece was located, that he was to blow into it with a force great enough to
activate the machine, and that he was to continue blowing until the machine tone
sounded. Mondini attempted to complete the breath test three or four times but
ultimately did not provide a sufficient sample. Officer Snyder told Mondini to
blow harder, but Mondini contends he was blowing hard enough. Mondini and
Officer Snyder agree that his efforts for each attempt were consistent. Upon failing
to complete a valid breath test, Mondini was advised that his license would be
suspended for refusal to submit to chemical testing.

At trial, DOT's evidence of Mondini's refusal consisted of the
testimony of Officer Snyder and the print out from the intoxilyzer machine
indicating a deficient sample. Officer Diulus was unavailable to testify and no
certificate that the intoxilyzer was properly calibrated and functioning is contained
in the record. Nevertheless, Officer Snyder testified that in his own experience of
witnessing breath tests performed where a sufficient sample was provided,
Mondini was not blowing into the mouthpiece with the same force as most people
he had witnessed. Mondini testified that he blew with sufficient force, but at trial
the judge found Officer Snyder more credible.

2

The sole issue before this Court is whether the trial court made an
error of law in finding that DOT had carried its burden of demonstrating refusal by
Mondini to submit to chemical testing.2 This issue boils down to whether DOT
satisfied its burden as set forth in Pappas v. Department of Transportation, Bureau
of Drivers Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996). We note that while Judge
Gallo of the Court of Common Pleas of Allegheny County, in his order dated April
22, 2004, dismissed Mondini's appeal, Judge Gallo's opinion filed September 23,
2004 states that the April 22, 2004 order should be reversed. Upon further review
of Mondini's Concise Statement and the trial transcript, Judge Gallo pointed out
that DOT did not carry its burden consistent with the case law of this Court in
Pappas. This Court agrees with the September 23, 2004 opinion of Judge Gallo.

In order to sustain a license suspension under the Implied Consent
Law, Section 1547(b) of the Vehicle Code, 75 Pa.C.S. §1547(b), DOT 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. Postgate v. Department of Transportation, Bureau of Driver Licensing,
781 A.2d 276 (Pa. Cmwlth. 2001), petition for allowance of appeal denied, 568 Pa.
689, 796 A.2d 320 (2002). Mondini argues that DOT has not carried its burden in
proving that he refused testing by failing to provide a sufficient sample. In Pappas,
this Court stated, "A refusal is supported by substantial evidence where the

2 This Court's standard 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. Finnegan v. Department
of Transportation, Bureau of Driver Licensing, 844 A.2d 645 (Pa. Cmwlth. 2004) (citing Mazza
v. Department of Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth.
1997), petition for allowance of appeal denied, 551 Pa. 172, 709 A.2d 887 (1998).

3

breathalyzer administrator testifies that the licensee did not provide sufficient
breath." Pappas, 669 A.2d at 508 (emphasis added). The Pappas Court went on to
state, "Alternatively, DOT may establish refusal under these circumstances by
presenting a printout from a properly calibrated breathalyzer indicating a
`deficient sample.'" Id. (emphasis added). In the instant case, DOT has failed to
present either the testimony of the administrator of the test, Officer Diulus, or to
demonstrate that the intoxilyzer machine was properly calibrated. The testimony of
Officer Snyder, which did not address calibration of the intoxilyzer machine, is
insufficient based on the test set forth in Pappas above. Officer Snyder was not the
administrator of the test and therefore cannot establish the necessary foundation
that would allow this Court to rely on the printout as proof that Mondini supplied
an insufficient sample.

Accordingly, the order of the Court of Common Pleas of Allegheny
County is reversed.

______________________________________

JAMES GARDNER COLINS, President Judge

4

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Mondini,
:

Appellant :

:
v.

:

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
: No. 1060 C.D. 2004
Bureau of Driver Licensing
:

O R D E R

AND NOW, this 1st day of March 2005, the order of the Court of
Common Pleas of Allegheny County is reversed.

______________________________________
JAMES GARDNER COLINS, President Judge