Opinion
No. 590 C.D. 2012
02-26-2013
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant v. James J. Walsh
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from the March 8, 2012 order of the Court of Common Pleas of Allegheny County (trial court) sustaining the statutory appeal of James J. Walsh (Licensee).
On October 2, 2010, in the South Side neighborhood of the City of Pittsburgh, Officer Juan Terry observed Licensee start his parked vehicle and back into a City of Pittsburgh police motorcycle, which was parked in the same spot. Officer Terry approached Licensee and noticed that his eyes were bloodshot, his speech was slurred, and there was an odor of alcohol on his body and breath. After administering a portable breath test to Licensee, Officer Terry arrested him for driving under the influence. Officer Terry then transported Licensee to the Special Deployment Office where Licensee was met by Officer Glenn Aldridge for a breath test. Licensee consented to the test. After administering two tests, which Officer Aldridge determined that Licensee did not refuse, Licensee blew into the breathalyzer on the third test and it registered a reading of .140, which is above the legal limit of .08. Officer Aldridge administered a fourth test and determined that Licensee refused to take that test. The Department mailed notice to Licensee that his driving privileges were being suspended for one year, effective December 31, 2010, for violating section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i). Licensee filed a timely appeal, and, on June 9, 2011, the trial court held a hearing de novo.
Section 1547(b)(1)(i) provides that if any person placed under arrest for driving while under the influence is requested to submit to a chemical test and refuses to do so, the Department shall suspend the person's operating privilege for one year. 75 Pa. C.S. §1547(b)(1)(i).
At the hearing, the Department presented the testimony of Officers Terry and Aldridge. Officer Terry testified to the reasons why he arrested Licensee. Officer Aldridge testified to the facts and circumstances underlying Licensee's breathalyzer tests, stating that Licensee refused to submit to the breathalyzer on the fourth test because he did not breathe properly into the Datamaster machine. Following Officer Aldridge's testimony, the Department rested its case-in-chief, and Licensee testified on his own behalf. Among other things, Licensee testified that on the fourth test, he blew into the Datamaster machine as hard as he could, but Officer Aldridge did not provide him with sufficient time to complete the test. Licensee further testified that after Officer Aldridge determined that he refused the fourth test, Licensee requested that a blood test be conducted but the police denied his request. (R.R. at 35a, 65a-66a, 68a.)
After receiving the evidence, the trial court dismissed Licensee's appeal by order dated September 23, 2011. Licensee filed a motion for reconsideration and a motion for a stay, which the trial court granted by order dated October 3, 2011. In this order, the trial court permitted the parties to submit proposed findings of fact. Following the parties' submissions, on March 8, 2012, the trial court sustained Licensee's appeal.
The Department filed a Pa.R.A.P. 1925(b) statement, contending that Officer Aldridge's testimony and corroborative documentary evidence established that Licensee refused to submit to the breathalyzer test. In his Pa.R.A.P 1925(a) opinion, the trial court recited his view of the facts of this case and rejected the Department's argument as follows:
Officer Aldridge testified that after [Licensee] consented to the breath test, he gave him instructions on how to take the breath test. (Tr. pps. 23-24.) Officer Aldridge testified that he began the administration of the test and [Licensee] did not breathe into the instrument properly on the first test. (Tr. p. 24.) Officer Aldridge explained that the instrument's screen displayed "refusal or not" and Officer Aldridge pressed "no." (Tr. pps. 25-26.) He then allowed the instrument to "time itself out." (Tr. p. 25.)
Officer Aldridge administered a second breath test on the same coupon.[] (The Department's Exhibit 2a.) According to the Officer, [Licensee] puffed improperly into the instrument. (Tr. p. 26.) Officer Aldridge interrupted the test and the instrument registered "incomplete." (Tr. p. 26.)
Officer Aldridge gave further instructions to [Licensee] and the procedure was then started again on a second coupon. (Tr. p. 25, Exhibit 2b.) [Licensee] breathed into the instrument and the instrument showed a reading of .140. (Tr. p. 27, Exhibit 2b.) Officer Aldridge and [Licensee] began a second test on coupon 2, but Officer Aldridge testified that [Licensee] began puffing again and the instrument "made it an invalid test and I considered him a refusal." (Tr. p. 27.) Unlike the test on coupon 1 which showed "incomplete," the second test on coupon 2 showed "invalid." (Exhibit 2a and 2b.)
Officer Aldridge testified that when the test is not taken properly or, if the subject does not submit a valid sample, the Datamaster returns a reading of "incomplete." (Tr. pps. 29-30.) That was the result shown for the test on coupon 1. (Exhibit 2a.) Officer Aldridge explained that the instrument shows "incomplete" when the subject has completed the series of samples and "at that point in time is considered incomplete because he did not submit a valid sample." (Tr. p. 30.) Officer Aldridge's testimony does not explain how [Licensee's] "puffing" on the test requested on coupon 1 and his "puffing" on the second test on coupon 2 produced different results on the Datamaster.
Officer Aldridge's testimony regarding the breath test at issue was, at best, equivocal and at times contradictory. He first testified that when the test is not taken properly or the subject does not submit a valid sample, the Datamaster returns a reading of "incomplete." (Tr. pps. 29-30.) He then testified that a reading of "invalid" could mean either that the subject is not blowing properly or the presence of mouth alcohol. (Tr. p. 46).
Officer Aldridge had testified that he stopped the first breath test because [Licensee] was not breathing into the instrument properly. The Court asked what happens if the test is allowed to run through the end of the cycle when this situation occurs. Officer Aldridge responded that the test result is "probably going to come up invalid." (emphasis [supplied by trial court]) (Tr. p. 50). Officer Aldridge's response was not unequivocal. On redirect examination,
after [Licensee] had testified, Officer Aldridge's testimony sometimes contradicted his earlier testimony.(Trial court op. at 2-4.)
Both Officer Terry and Officer Aldridge testified that [Licensee] was cooperative at all times and gave his consent to the breath test to both Officers. (Tr. pps. 8, 23.) The Datameter did register a valid reading on one of the tests. (Exhibit 2b.) Officer Aldridge's explanation of why the test was valid in one breath sample but not on the others was ambiguous and sometimes contradictory. [The Department] failed to meet its burden of proof to show a refusal.
According to the record, a "coupon" is a print-out generated from the breathalyzer that records the results of the test. Each coupon can be used to conduct two different tests, and the results are produced on the "subject sample line." The Department admitted the two coupons as Exhibits 2a and 2b. (See Exhibits 2a and 2b, R.R. at 85a.)
On appeal to this Court, the Department argues that the trial court committed an error of law in deeming Officer Aldridge's testimony equivocal and contradictory. Quoting Moore v. Workers' Compensation Appeal Board (American Sintered Technologies, Inc.), 759 A.2d 945, 949 (Pa. Cmwlth. 2000), a case from our workers' compensation jurisprudence, the Department asserts that the issue of "[w]hether testimony is equivocal is a question of law that is fully subject to [this Court's] review." (Department's brief at 25.) According to the Department, an examination of Officer Aldridge's testimony, as a whole, demonstrates that it was neither equivocal nor contradictory and that it proved Licensee refused to take the second test on coupon 2.
Our scope of review is limited to determining whether the findings of fact are supported by competent evidence or whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Piasecki v. Department of Transportation, Bureau of Driver Licensing, 6 A.3d 1067 (Pa. Cmwlth. 2010).
In response, Licensee contends that the trial court properly exercised its discretion, as fact-finder, to find that Officer Aldridge's testimony failed to satisfy the Department's burden of proof. Licensee also posits that the Department's arguments on appeal impermissibly challenge the trial court's credibility and weight determinations, by attempting to apply a standard of review regarding medical expert testimony in workers' compensation cases to a license suspension appeal, and erroneously seek to convert an issue of fact into one of law.
In order to sustain a suspension of operating privileges under section 1547 of the Vehicle Code, the Department must establish that: (1) the licensee was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating a motor vehicle while under the influence of alcohol; (2) the licensee was requested to submit to a chemical test; (3) the licensee refused to submit; and (4) the licensee was warned that refusal would result in a license suspension. Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006).
"The issue of whether a motorist's conduct constitutes a refusal to submit to chemical testing is a question of law to be determined based on the facts found by the trial court." Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003).
A 'finding of fact,' such as lies within the sole prerogative of the fact-finder, properly pertains to the actual events or conduct that occurred during the time period in question. A 'finding of fact,' therefore, is a determination by the finder or trier of fact that certain things do exist or that certain events or conduct actually occurred. By contrast, a 'conclusion of law' is the application of the facts established by the fact-finder, here the common pleas court, and applying them to the applicable law. Therefore, the question whether a motorist's conduct as found by the common pleas court constitutes an unqualified, unequivocal assent to take a breathalyzer test is a question of law properly reviewable by an appellate court.Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90, 92-93 (Pa. Cmwlth. 1995) (citation omitted).
As the party assigned with the burden of proving a refusal, the Department was obligated to meet both its burden of production and its burden of persuasion. Rutkowski v. Department of Transportation, Bureau of Driver Licensing, 780 A.2d 860, 862 (Pa. Cmwlth. 2001); Reynolds v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 361, 364 (Pa. Cmwlth. 1997). Notably, the burden of production is distinct from the burden of persuasion: the burden of production obliges a party to produce sufficient evidence as a matter of law, while the burden of persuasion involves the fact-finder's determinations concerning the credibility, persuasive quality, or weight of the evidence. Morrissey v. Department of Highways, 424 Pa. 87, 225 A.2d 895 (1967); Haygood v. Civil Service Commission, 576 A.2d 1184 (Pa. Cmwlth. 1990). The mere fact that a party meets its burden of production and presents sufficient evidence as a matter of law does not guarantee success; in addition, the party must meet its burden of persuasion by convincing the fact-finder to believe the evidence and afford it adequate weight. Morrissey; Haygood. "[T]he significance of the burden of persuasion is limited to those cases in which the trier of fact is actually in doubt," and if "the judge [acting as fact-finder] finds himself in doubt, he ... must decide the issue against the party having the burden of persuasion." Vaughn C. Ball et al., McCormick's Handbook on the Law of Evidence 947 (Edward W. Cleary ed., 3rd ed. 1984). Accord Greenwich Collieries v. United States Department of Labor, 990 F.2d 730 (3d Cir. 1993).
In employing the term "sufficient evidence as a matter of law," we mean that when accepting the evidence of the burdened party at face value, and assuming it to be true, credible and weighty, it would be sufficient to establish all the elements of the cause of action. See LT International Beauty School, Inc. v. Bureau of Professional & Occupational Affairs, 13 A.3d 1004 (Pa. Cmwlth. 2011); 51 Park Properties v. Messina, 720 A.2d 773 (Pa. Super. 1998).
In his Pa.R.A.P. 1925(a) opinion, the trial court found that the Department "failed to meet its burden of proof to show a refusal." Although the meaning of the term "burden of proof" is subject to debate, the trial court's Pa.R.A.P. 1925(a) opinion indicates that the trial court utilized this term to denote that the Department failed to meet its burden of persuasion. The trial court's decision is based upon its finding that Officer Aldridge's testimony was equivocal, ambiguous, and contradictory - words that are traditionally used to describe the credibility or assess the weight of a witness's testimony. See Pennsylvania Standard Suggested Jury Instructions (Civil) 4.20 (instructing jury that in evaluating the credibility of a witness, the jury should consider, inter alia, whether the witness testified "in a convincing manner" and whether the witness's testimony was "uncertain, confused, or self-contradictory"); Commonwealth v. Todt, 464 A.2d 1226, 1229 (Pa. Super. 1983) ("A mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness"). Therefore, in essence, the trial court found that Officer Aldridge's testimony was not credible or weighty enough to satisfy the Department's burden to persuade him as fact-finder.
The term "burden of proof" has been interpreted by some scholars to include both the burden of production and the burden of persuasion. However, according to a renowned secondary source, "burden of proof" has been predominately used to describe only a party's burden of persuasion. Black's Law Dictionary 209 (8th ed. 1990). --------
Contrary to the Department's argument, the fact that the Department may have adduced sufficient evidence as a matter of law does not automatically entitle it to a favorable ruling. Rather, in order to sustain its burden of proof, the Department was obligated to convince the trial court, as fact-finder, that Officer Aldridge's testimony is credible and weighty. Morrissey; Haygood.
As finder of fact, the trial court is the sole arbiter of questions concerning the credibility and weight of the evidence, and the trial court's determinations in these respects will not be disturbed unless the trial court abuses its discretion. Stancavage v. Department of Transportation, Bureau of Driver Licensing, 986 A.2d 895 (Pa. Cmwlth. 2009); Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761 (Pa. Cmwlth. 2008). In expounding on the abuse of discretion standard, our Supreme Court has stated:
When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995) (citation omitted).
In assessing the Department's evidence in this case, the trial court noted that "[b]oth Officer Terry and Officer Aldridge testified that [Licensee] was cooperative at all times and gave his consent to the breath test to both Officers," and that "[t]he Datamaster did register a valid reading on one of the tests." The trial court also noted that Officer Aldridge first testified that the breathalyzer registered an "incomplete" because Licensee did not submit a valid sample, and then later testified that "incomplete I guess means that I stopped the test ... to allow [Licensee] to blow and I pressed no, he was not a refusal ...." (R.R. at 38a, 52a.) (emphasis supplied.) When the trial court asked Officer Aldridge what happens when a person does not breathe properly into the Datamaster machine, Officer Aldridge stated that the result is "[p]robably going to come up invalid." (R.R. at 58a.) (emphasis supplied.) Considered in light of the surrounding circumstances of the breath tests, this testimony caused the trial court to find that "Officer Aldridge's explanation of why the test was valid in one breathe sample but not on the others was ambiguous and sometimes contradictory." For these collective reasons, the trial court ultimately found that Officer's Aldridge's testimony regarding the breath tests was ambiguous, equivocal, and at times contradictory.
As evidenced by the above rationale, the trial court analyzed the facts and circumstances surrounding the breathalyzer tests and, as fact-finder, was simply not convinced, or was left with "doubt," that Licensee refused to submit to the test. See McCormick's Handbook on the Law of Evidence at 947 (stating that if "the judge [acting as fact-finder] finds himself in doubt, he ... must decide the issue against the party having the burden of persuasion."). In this regard, the trial court did not afford Officer Aldridge's testimony the weight and/or persuasive quality necessary for the Department to sustain its burden of persuasion and effectively determined that the Department failed to meet this burden. Because the trial court's concerns regarding Officer Aldridge's testimony are supported by the record, the trial court did not abuse its discretion in finding that the testimony did not possess the necessary evidentiary weight. See Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12 (Pa. Cmwlth. 2010) (concluding that the trial court properly exercised its discretion in rejecting a licensee's testimony when the trial court explained that the licensee's testimony "instilled no sense of confidence in his ability to recall and relate events accurately"); DiCola v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 398 (Pa. Cmwlth. 1997) (concluding that trial court did not abuse its discretion in rejecting all of an officer's testimony at the hearing de novo because portions of the officer's testimony contradicted his prior testimony at a preliminary hearing). Accordingly, with there being no abuse of discretion on the part of the trial court, the trial court's weight determinations concerning Officer Aldridge's testimony are binding upon this Court and cannot be disturbed on appeal. Sitoski.
Finally, the trial court's exercise of discretion in determining the weight and/or persuasive quality of Officer Aldridge's testimony does not implicate a question of law, and the Department's reliance on Moore for such a proposition is misplaced. In Moore, and workers' compensation law generally, a claimant's burden of production includes submitting competent medical evidence in the form of unequivocal expert testimony; if a claimant fails to do so, then he or she will not be entitled to benefits as a matter of law. 759 A.2d at 949. Unlike Moore and workers' compensation law, this is a license suspension case, and the Department has no similar legal obligation to adduce competent and unequivocal medical expert testimony. Instead, the issue in this case is a factual one, namely whether Officer Aldridge's testimony convinced the trial court, as fact-finder, that the Department carried its burden of persuasion. The trial court, in its sole discretion as fact-finder to make determinations with respect to the credibility of witnesses and evidentiary weight, found that the Department did not do so. As explained above, the trial court did not abuse its discretion in assessing the weight to be accorded to Officer Aldridge's testimony; therefore, this Court has no basis upon which to disturb the trial court's finding that the Department failed to meet its burden of proof or persuasion.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of February, 2013, the March 8, 2012 order of the Court of Common Pleas of Allegheny County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge