DUI Appeal - Pennsylvania Asthma Issue Reverses Suspension

In Martin v. Commonwealth of Pennsylvania, --- A.3d ----, 2011 WL 1886459 (Pa.Cmwlth.) the defendant was arrested for DUI. At the station, told the officer that he had asthma. The defendant tried to blow without success 4 or 5 times. He was cited for a refusal. The police officer testified that a person with asthma should have no problem submitting, and that they usually provide an adequate sample after he gives them "a talking to."
On appeal, it was noted that the defense offered the deposition testimony of Kenneth Hurst, M.D. Dr. Hurst testified that he has treated Licensee for asthma since 2001 and for chronic obstructive pulmonary disease (COPD) since 2005. (Hurst Dep., 4/21/10, at 5, R.R. at 53.) Dr. Hurst stated that: (1) asthma and COPD are different diseases, ( Id. at 10–11, R.R. at 58–59); (2) Licensee was aware of his COPD prior to the August 21, 2009, arrest, ( Id. at 20, R.R. at 68); (3) Licensee was not aware of the seriousness of his COPD until September 9, 2009, after the arrest, when Dr. Hurst performed a pulmonary function test, which was “the first confirmatory test that was ordered on him,” ( Id. at 12, R.R. at 60); (4) before the test, “nobody really knew how bad it was,” ( Id. at 20, R.R. at 68); (5) before the test, Licensee's physicians discussed his medical condition with him as “both asthma ... and COPD,” ( Id.); and (6) because of his COPD, Licensee could not have completed the breath test without medication, ( Id. at 7–9, R.R. at 55–57).

In an earlier case called Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa.Cmwlth.1995) (emphasis added), a Pa. court stated:

"[W]here a licensee suffers from a medical condition whose existence, 1) affects the licensee's ability to perform the test and 2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered."

The state argued that it was the COPD that caused the insufficient sample, and that since the defendant had only mentioned asthma, then he could not meet the Hatalski conditions. The appeals court, in reversing the driver's suspension, wrote:

"Thus, the reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee's ability to complete one kind of test is to obtain results through a different chemical test. A licensee does not avoid testing by advising the officer of a medical condition, but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition. In the legal scheme, then, it is not the role of an officer to “play doctor” or assess the licensee's credibility."

Finally, the court wrote:

"A licensee is not required to inform officers of an unknown medical condition that would have affected his ability to complete a breath test. Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa.Cmwlth.2000). Here, because the trial court found that Licensee was not aware of the severity of his COPD and because there is no finding that Licensee knew the distinction between his asthma and his COPD, we conclude that, having informed the troopers of his asthma, Licensee was not required to inform them of his COPD."

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