Sweeney v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. Here, the licensee presented: (1) credible expert testimo*690ny that an Intoxilyzer 5000 with a resistance setting above three pounds per square inch may prevent a sober and healthy person from providing sufficient breath samples; (2) evidence accepted by the trial court that the licensee was sober and healthy at the time of the Intoxilyzer 5000 breath test; and (3) credible testimony that the licensee made her best effort to provide sufficient breath samples. Unlike the majority, I would hold that, when a licensee presents such…