IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Charles Weiner, : Appellant : : v. : No C.D : Submitted: November 8, 2013 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: January 9, 2014 Charles Weiner (Licensee) appeals an order of the Court of Common Pleas of Montgomery County (trial court) denying Licensee s statutory appeal of the suspension of his operating privileges by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) for refusing to submit to chemical testing pursuant to Section 1547(b)(1)(ii) of the Vehicle Code. 1 Licensee 1 Section 1547(b) provides in pertinent part: (b) Suspension for refusal. - (1) If any person placed under arrest [for driving under the influence of alcohol] is requested to submit to chemical testing and refuses to do so,... the department shall suspend the operating privilege of the person as follows: * * * (Footnote continued on the next page...)

2 contends that the trial court erred in determining PennDOT proved that the arresting officer had reasonable grounds to believe Licensee was operating a vehicle while under the influence of alcohol. Discerning no error, we affirm the order of the trial court. On April 25, 2013, Officer John Mick of the Lower Merion Township Police Department was on duty when he received a radio call concerning a hit-andrun accident. Officer Mick was told that the complainant, Jeffrey Snyder, had followed the car that had hit him to 432 Hidden River Road in Lower Merion Township. Officer Mick arrived at the address where he found Snyder and talked to him about the accident. Snyder stated that he had been in the process of parking his car when he was hit by a black SUV. Snyder followed the SUV to 432 Hidden River Road and saw the driver put the SUV into the garage and get out. After a brief conversation with Snyder about the accident, the driver entered the residence. According to Snyder, no one else had entered the residence between the time he reported the incident and the arrival of the police. (continued...) (ii) For a period of 18 months if any of the following apply: * * * (B) The person has, prior to the refusal under this paragraph, been sentenced for: * * * (II) an offense under former section Pa.C.S. 1547(b)(1)(ii)(B)(II). Licensee was convicted on October 19, 1987, of violating former 75 Pa.C.S on March 29,

3 At this point, an individual approached the police. She identified herself as Merle Weiner, the sister of the owner of the residence, Licensee. She stated that Licensee s home security company had alerted her that the alarm had gone off and that the police were at the house. Ms. Weiner told the police that Licensee was in Florida with his girlfriend. The police called Licensee s girlfriend, who confirmed that Licensee was in Florida but refused to call him to the phone even after being told there was a potential burglary in progress at Licensee s Pennsylvania home. The officers also contacted Licensee s son, who also stated that Licensee was in Florida. At this point, approximately one hour had elapsed from the time Officer Mick was dispatched to Licensee s residence. Based on all of the information available to them, the officers treated the situation as a burglary in progress. Officer Mick and another officer entered the home and found Licensee, who matched the description of the hit-and-run driver provided by Snyder. 2 Licensee was standing on the second floor, fully dressed. The officers approached Licensee, told him to put his hands up, and placed him in handcuffs. The officers began questioning Licensee about the accident with Snyder. During this questioning, Officer Mick noticed the strong smell of alcohol on Licensee s breath and his glassy, bloodshot eyes. Officer Mick asked Licensee when he had last consumed alcohol, and Licensee responded that his last drink had been four hours earlier. 3 After confirming that no other individuals were present in the home, Officer Mick arrested Licensee on suspicion 2 Snyder left the scene prior to Licensee s arrest, but the next day identified Licensee in a photo lineup as the driver of the black SUV that had hit his car. 3 Later, at the police station, Licensee claimed to have consumed alcohol after he arrived home. Officer Mick testified that he had not seen any alcoholic beverages in the kitchen. 3

4 of operating his vehicle while under the influence of alcohol. No field sobriety tests were performed. Licensee was placed in a patrol car and told he was being taken to a hospital for chemical blood testing. After Licensee indicated he had a fear of needles, Officer Mick transported him to the Lower Merion Police Department for a chemical breath test. All procedures were followed, including advising Licensee of the implied consent warnings on Form DL-26. Licensee refused to take the breath test. On May 21, 2012, PennDOT notified Licensee that his license would be suspended for a period of 18 months starting June 25, 2012, as a result of his refusal to consent to chemical testing. Licensee filed an appeal of his license suspension on June 7, 2012, which the trial court denied on June 10, The trial court determined that Officer Mick had reasonable grounds to conclude Licensee was operating his vehicle under the influence of alcohol. In his appeal to this Court, 4 Licensee contends that the trial court erred in holding that PennDOT offered sufficient evidence to prove that the arresting officers had reasonable grounds to believe that Licensee had been driving under the influence of alcohol. Licensee contends that the odor of alcohol was equivocal evidence because more than an hour elapsed between the time of the accident and 4 On appeal, this Court s review is limited to determining whether the factual findings of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, , 737 A.2d 1203, 1205 (1999). Whether reasonable grounds exist is a question of law reviewable by this Court. Id. at 447, 737 A.2d at Determinations on the credibility of witnesses and the weight assigned to their testimony are solely within the discretion of the trial court; this Court is bound by those findings. McGee v. Department of Transportation, Bureau of Driver Licensing, 803 A.2d 255, 258 (Pa. Cmwlth. 2002). 4

5 his encounter with the police. PennDOT counters that the totality of the circumstances gave Officer Mick reasonable grounds to believe Licensee had been driving while under the influence of alcohol. To sustain a suspension of operating privileges, PennDOT must establish that the licensee: (1) was arrested by a police officer who had reasonable grounds to believe that the licensee was operating a motor vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that refusal would result in a license suspension. Bomba v. Department of Transportation, Bureau of Driver Licensing, 28 A.3d 946, 949 (Pa. Cmwlth. 2011). The only issue presented for our review is whether the arresting officer had reasonable grounds to believe Licensee was under the influence of alcohol. Reasonable grounds exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 446, 737 A.2d 1203, 1207 (1999). This standard is less than that of probable cause required for a criminal prosecution. Id. In fact, the arresting officer does not need to be correct in his belief that the licensee was intoxicated. Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 363 A.2d 870, 872 (Pa. Cmwlth. 1976). Nor does the officer need to witness the licensee operating a vehicle for there to be reasonable grounds. McCallum v. Commonwealth, 592 A.2d 820, 822 (Pa. Cmwlth. 1991). 5

6 The question of whether reasonable grounds exist is reviewed on a case by case basis. Banner, 558 Pa. at 447, 737 A.2d at All of the facts and circumstances, as they appeared at the time of the arrest, must be considered. Schindler v. Department of Transportation, Bureau of Driver Licensing, 976 A.2d 601, 605 (Pa. Cmwlth. 2009). There is not a set list of behaviors that must be exhibited in order for an officer to have reasonable grounds. Stancavage v. Department of Transportation, Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa. Cmwlth. 2009). Our case law has identified factors that constitute reasonable grounds. They include: a licensee who staggers or sways; has slurred speech; exhibits uncooperative behavior; or emits an odor of alcohol. Id. Where the arresting officer cites a driver s glassy eyes, there must be at least one other obvious physical sign of intoxication in order for the officer to have reasonable grounds for arrest. Id. Licensee argues that no direct evidence was introduced at the hearing showing that he had operated a motor vehicle while showing signs of intoxication. Licensee points to Fierst v. Commonwealth, 539 A.2d 1389 (Pa. Cmwlth. 1988), and Sestric v. Department of Transportation, Bureau of Driver Licensing, 29 A.3d 141 (Pa. Cmwlth. 2011), to support his argument that the hour-long gap between the accident and his encounter with the police is fatal to PennDOT s theory that Officer Mick had reasonable grounds. Licensee asserts that he may have consumed alcohol during that hour. The facts of record support the conclusion that Officer Mick had reasonable grounds to suspect Licensee had been driving while under the influence of alcohol. First, Officer Mick had been informed of a hit-and-run accident involving a black SUV, and the driver of the vehicle that was hit, Snyder, had 6

7 followed the SUV to Licensee s home. The damage to the SUV was consistent with the damage to Snyder s vehicle. Snyder informed the police that he had only seen one person, later identified by Snyder as Licensee, enter the home. These facts support the inference that Licensee had recently driven his car when the police arrived at his home. Next, Officer Mick testified that he encountered Licensee fully clothed, with glassy, bloodshot eyes, and smelling of alcohol. Licensee stated that he had been drinking four hours earlier. No one else was in the home, and there were no signs that Licensee had been drinking at home, despite Licensee s claims. It was reasonable for Officer Mick to infer that Licensee had been intoxicated for more than one hour, at a point when he was driving his SUV. Licensee s reliance on Fierst and Sestric is misplaced. In Fierst, the licensee was involved in an accident and left the scene. When the officer arrived at the licensee s home, an hour had elapsed and the officer saw the licensee holding a bottle of beer in his hand. Fierst, 539 A.2d at In Sestric, PennDOT did not produce evidence to connect in time the licensee s drinking and his driving. Absent evidence on the timeline of events, the officer lacked reasonable grounds for an arrest. Sestric, 29 A.3d at 144. Fierst and Sestric are distinguishable. Here, Officer Mick testified that he did not see any evidence in the home that Licensee had been drinking there, as was the case in Fierst. Further, Licensee admitted to drinking alcohol four hours before his arrest, which was necessarily before the hitand-run accident with Snyder. Unlike Sestric, the timeline has been established to support reasonable grounds for Licensee s arrest. In sum, the information Officer Mick received from Snyder, together with the smell of alcohol on Licensee s breath and his bloodshot eyes, gave him 7

8 reasonable grounds to believe that Licensee had been operating a vehicle while under the influence of alcohol. Department of Transportation, Bureau of Traffic Safety v. Doyle, 520 A.2d 917, 919 (Pa. Cmwlth. 1987) (holding that licensee s involvement in an accident combined with odor of alcohol provided reasonable grounds to suspect driving while under the influence of alcohol). For these reasons, we affirm the trial court s order. MARY HANNAH LEAVITT, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Charles Weiner, : Appellant : : v. : No C.D : Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing : O R D E R AND NOW, this 9 th day of January, 2014, the order of the Court of Common Pleas of Montgomery County dated June 10, 2013, in the abovecaptioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge