COM., DEPT. OF TRANSP. v. Kilrain

I dissent and would affirm the order of the trial court.

The facts are undisputed. Because of the haphazard manner in which he was operating his vehicle and his failure to pass a field sobriety test, the licensee was placed under arrest. After appropriate warnings, he was asked to take a breathalyzer exam. After giving one adequate sample, the licensee was unable, in five attempts, to provide an adequate breath sample so as to give a proper reading.

The police officer who administered the breathalyzer and the trial court found as a fact that the licensee “made a good faith effort to be retested…