Opinion
No. 2212 C.D. 2014
07-10-2015
Carl Ernest, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Carl Ernest (Ernest) appeals from an order of the Court of Common Pleas of Schuylkill County (trial court), filed November 18, 2014. The trial court dismissed Ernest's appeal and reinstated the Department of Transportation's (DOT), Bureau of Driver Licensing's (Bureau) one-year suspension of Ernest's operating privileges pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547, for his refusal to submit to chemical testing. For the reasons that follow, we affirm.
Section 1547 of the Code, commonly referred to as Pennsylvania's Implied Consent Law, provides, in pertinent part:
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in the Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of the vehicle:
(1) in violation of [S]ection . . . 3802 [of the Code, 75 Pa. C.S. § 3802,] (relating to driving under influence of alcohol or controlled substance) . . . .
. . . .
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of [S]ection 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
On August 14, 2014, Ernest received a letter from DOT providing that his driving privileges would be suspended for a period of eighteen months, effective September 18, 2014. (Reproduced Record (R.R.) at 36.) Ernest appealed to the trial court, which conducted a hearing. Officer Phil Schlegel (Officer Schlegel) was the only witness to testify. (R.R. at 5.)
In order to sustain a suspension of a licensee's operating privilege under Section 1547 of the Code for a refusal to submit to chemical testing, DOT must establish that the licensee:
(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical
control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).
Officer Schlegel testified that he and Officer Beau Yarmush (Officer Yarmush) were dispatched for a noise complaint around 12:40 a.m. on July 6, 2014. (R.R. at 7.) The dispatch stated that a Ford pickup truck was located in the parking lot of St. Mauritius Church and that the truck had been there for several minutes or so with its headlights on and engine running and revving. (Id.) Officer Schlegel stated that he and Officer Yarmush were already handling another dispatch at the time they received the noise complaint, so they did not arrive on the scene of the Ford truck until 1:36 a.m. (Id. at 8.)
The St. Mauritius Church parking lot is located in the 700-block of Brock Street, and the church has been closed for some time prior to this incident. (Id. at 7, 12.) Officer Schlegel testified that residents who live in that area park their cars in the parking lot, and the lot is sometimes used as a "public throughway" for people to go from Brock Street to Pine Street. (Id. at 12.)
Upon arrival, Officer Schlegel observed an older model Ford pickup truck parked in the parking lot with its engine running and headlights still on. (Id. at 8.) Office Schlegel also noticed a male, sitting, passed out, in the middle of the front seat of the truck, which was a bench-style seat. (Id.) Officer Schlegel testified that Officer Yarmush then contacted the individual who complained about the truck and confirmed that the truck currently in the parking lot was the same vehicle. (Id.)
Officer Schlegel stated that he asked the sleeping man in the truck, later identified as Ernest, to get out of the truck. (Id. at 9.) Once out of the truck, Officer Schlegel observed Ernest having trouble standing and ultimately leaning against the truck for balance. (Id.) Officer Schlegel asked Ernest questions concerning why he was in the parking lot and how he got there, but Ernest was uncooperative and would not answer, claiming he was too intoxicated. (Id. at 9-10.) When Ernest did speak, Officer Schlegel stated that he slurred his words and had a strong odor of alcohol around him. (Id. at 9.) At one point, Ernest urinated in the parking lot, despite Officer Schlegel telling him not to. (Id.)
Officer Schlegel asked Ernest to submit to a field sobriety test, which Ernest refused to do, claiming he was too drunk. (Id. at 10.) Officer Schlegel then offered to administer the breathalyzer test, which Ernest also refused. (Id.) Concluding that they had enough evidence to establish that Ernest was intoxicated, Officer Schlegel and Officer Yarmush arrested Ernest for suspicion of driving under the influence and took him to the Schuylkill Medical Center. (Id. at 11.) Once at the medical center, Office Schlegel proceeded to read verbatim to Ernest the informed consent warnings contained in what is commonly referred to as Form DL-26. (Id. at 13.) Ernest signed the Form DL-26, but he ultimately refused the testing. (Id. at 14.)
Section 1547(k) of the Code, 75 Pa. C.S. § 1547(k), authorizes a police officer to require a person, prior to arrest, to submit to a preliminary breath test when there is reasonable suspicion to believe that the operator was driving while under the influence of alcohol.
Upon cross-examination, Officer Schlegel admitted that he did not witness Ernest driving the truck at any point during the investigation, and he did not know why Ernest was in the parking lot or how Ernest got there. (R.R. at 16-17.) Officer Schlegel also testified that it was a "pretty mild summer morning . . . evening." (Id. at 20.)
The trial court dismissed Ernest's appeal and reinstated the eighteen-month suspension. The trial court held that Officer Schlegel had reasonable grounds to believe that Ernest was operating or in actual physical control of a vehicle because Ernest was alone and sleeping in a vehicle with the engine running and lights on, and the vehicle was reported to be operating an hour earlier. In addition, Ernest was found sitting in the middle of the seat and was the only person in the running vehicle. Thus, it was reasonable for Officer Schlegel to conclude that Ernest was in actual physical control of a vehicle while under the influence of alcohol. Ernest then appealed to this Court.
On appeal, Ernest argues that the trial court erred as a matter of law in finding that the officers had reasonable grounds for requesting Ernest to submit to chemical testing because (1) there was no evidence to show that the vehicle was capable of being driven, operated, and placed in motion at some time prior to the request for testing; and (2) there was no evidence to show that Ernest drove or exercised actual physical control over the operation of the vehicle prior to the arrival of the officers given that he was not found in the driver's seat or slumped over the steering wheel.
"This Court's standard of review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law have been committed or whether the trial court's determinations demonstrate a manifest abuse of discretion." Kollar, 7 A.3d at 339 n.1.
Whether reasonable grounds exist is a question of law reviewable by this Court on a case-by-case basis. Dep't of Transp., Bureau of Driver Licensing v. Malizio, 618 A.2d 1091, 1094 (Pa. Cmwlth. 1992). The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Banner v. Dep't of Transp., Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999). In Sisinni v. Department of Transportation, Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), appeal denied, 44 A.3d 1163 (Pa. 2012), this Court stated that it is "well settled that the standard for reasonable grounds is not very demanding and the police officer need not be correct in his belief that the motorist had been driving while intoxicated." Sisinni, 31 A.3d at 1259. Reasonable grounds exist to support a license suspension 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 licensee was operating or was in actual physical control of the vehicle while under the influence of alcohol. Stahr v. Dep't of Transp., Bureau of Driver Licensing, 969 A.2d 37, 40 (Pa. Cmwlth. 2009); Gasper v. Dep't of Transp., Bureau of Driver Licensing, 674 A.2d 1200, 1202 (Pa. Cmwlth.), appeal denied, 682 A.2d 546 (Pa. 1996). To determine whether an officer has reasonable grounds to conclude that the licensee was operating a vehicle under the influence, this Court must consider the "totality of the circumstances, including such factors as the location of the vehicle; whether the engine was running; staggering, swaying, or uncooperative behavior by the licensee; and the odor of alcohol." Walkden v. Dep't of Transp., Bureau of Driver Licensing, 103 A.3d 432, 437 (Pa. Cmwlth. 2014). Further, it is not necessary for an officer to actually witness a licensee operating a vehicle in order to have reasonable grounds to place him under arrest for driving under the influence. Walkden, 103 A.3d at 437. In addition, the concept of "actual physical control" has been construed to mean "control of the movements of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself, without the requirement that the entire vehicle be in motion." Dep't of Transp., Bureau of Traffic Safety v. Farner, 494 A.2d 513, 516 (Pa. Cmwlth. 1985) (emphasis added).
Ernest essentially argues that because no evidence was submitted to demonstrate who owned the vehicle or if the vehicle was capable of moving or being driven, it is very possible that Ernest could not have driven the vehicle prior to the officers arriving at the scene for the "truck could have been a permanent fixture for a homeless man." (Appellant's Brief, p. 20.) Ernest states that the record is silent on whether the vehicle was even capable of movement or if someone later drove or transported the vehicle in any way. Ernest also places importance on the fact that the vehicle was located in a private parking lot, a fact which would show that he did not drive or park on a highway or Commonwealth road while inebriated.
Section 3802 of the Code, 75 Pa. C.S. § 3802, does not require the licensee to be driving on the highway or on a Commonwealth road. The relevant part of Section 3802(a)(1) of the Code provides that "[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle." 75 Pa. C.S. § 3802(a)(1). The words "road" and "highway" are not mentioned. Thus, the Bureau was not required to show that Ernest was driving on a highway or road.
In addition, the fact that Ernest was parked in a parking lot does not change the reasonableness of the officers' conclusions. This Court has held, in an unreported opinion, that a licensee found "in a parked vehicle, not located on a highway, while the engine is running, constitutes the requisite reasonable grounds for an arrest for DUI." Planchak v. Dep't of Transp., Bureau of Driver Licensing, (Pa. Cmwlth., No. 1171 C.D. 2012, filed March 19, 2013), slip opin. at 3 (citing Vinansky v. Dep't of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995)), appeal denied, 74 A.3d 1032 (Pa. 2013). Here, Ernest was found sleeping in a truck, with the engine running and headlights still on, that was parked in a parking lot. These facts alone constitute reasonable grounds for an arrest of DUI, the standard of which is reasonable grounds to believe the individual was operating or in actual physical control of a vehicle while intoxicated.
Pursuant to Commonwealth Court Internal Operating Procedure § 414, relating to the citing of judicial opinions, an unreported opinion of the Court may only be cited "for its persuasive value, but not as binding precedent."
Last, Ernest argues that the Bureau erred as a matter of law in finding that the officers had reasonable grounds to believe that Ernest had actual physical control of the truck. Ernest contends that all of the relevant case law centers around the fact that the licensee was either seen driving while intoxicated or there were circumstances from which it could be inferred that the licensee drove the vehicle. Ernest claims that there is no evidence to show that he drove the truck to the parking lot or that he even started the truck's engine. The record only shows that Ernest was sleeping, and "a sleeping man cannot operate or control anything, he is asleep." (Appellant's Brief, p. 8.) Ernest also argues that in all the cases in which reasonable grounds have been established, the licensee was found in the driver's seat. He argues that because he was found in the middle seat, not the driver's seat, it is unreasonable to believe he possessed control over the vehicle.
In Banner, the licensee was found sleeping in a reclined position in the passenger seat of a vehicle parked along the roadway. Banner, 737 A.2d at 1204. The vehicle was not running and the headlights were not on. Id. After being awakened by a police officer, the licensee reached for the keys that were still in the ignition. Id. No alcohol or alcoholic container was found in the vehicle. Id. The Supreme Court distinguished these facts from other precedent, finding that the only fact showing the licensee's control of the vehicle was that the vehicle was parked alongside a road. Id. at 1208. The Supreme Court, in concluding that the licensee was not in actual physical control of the vehicle for purposes of Section 3802 of the Code, noted that a "line must be drawn to distinguish circumstances where a motorist is driving his vehicle while under the influence of alcohol, which the statute is intended to prevent, and circumstances where a motorist is physically present in a motor vehicle after becoming intoxicated." Id.
In distinguishing Banner, the Supreme Court cited the following cases:
In Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995), actual physical control was found where the licensee was discovered slumped over the steering wheel of a truck parked in a parking lot behind a fire department social hall. The vehicle's engine was running and its brake lights were on. In Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993), actual physical control was found where the licensee was asleep, slumped over the steering wheel with the key in the ignition. The vehicle was parked on a city street with its parking lights on. The officer in Polinsky v. Commonwealth of Pennsylvania, Department of Transportation, 569 A.2d 425 (Pa. Cmwlth. 1990), was found to have had reasonable grounds to believe that the licensee was in actual physical control of the vehicle when she was found asleep behind the wheel of her
vehicle, parked adjacent to a fast food restaurant pick-up window. The headlights of the car were on and the standard transmission was in gear, although the engine was not running. Similarly, actual physical control was found in Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Farner, 494 A.2d 513 (Pa. Cmwlth. 1985). There, the licensee was found behind the wheel of his truck, parked in a traffic lane with his hands on the steering wheel. The licensee had started the engine and activated the brake lights, but had left the transmission in "park" and did not cause the vehicle to move.Banner, 737 A.2d at 1207-08.
However, the case at hand is distinguishable from Banner. Here, Ernest was found sleeping, in the middle of a bench-style seat, in a truck with the engine running and headlights on. In Banner, the licensee was found in the reclined position in the passenger seat of a car with the engine turned off and headlights not on. Banner, 737 A.2d at 1204. The positioning of the individual and status of the engine and headlights are significant when considering whether the individual had control of the vehicle. Because the engine was not running and the headlights were not on, the Supreme Court in Banner reasonably concluded that the licensee did not have control. In this case, however, the engine was running and the headlights were on, showing that Ernest had control over the vehicle. Also, the licensee in Banner was found in the passenger side of a Cadillac sedan. Banner, 737 A.2d at 1204. In contrast, Ernest was found sitting in the middle of a bench-style seat of the Ford truck. It is very possible, and reasonable to conclude, that a person in that position may reach the peddles or handle the steering wheel, thus taking control of the truck's movement.
In addition, Officer Schlegel and Officer Yarmush were dispatched to the parking lot because a complaint was made that the truck was parked in the lot for several minutes and that it was revving its engine. These facts show that whoever was in the truck had actual physical control of it because someone was revving the engine. Ernest was found inside the truck, alone, thus a reasonable person could conclude that Ernest was the person responsible for revving the engine and, therefore, in actual physical control of the truck.
Examining the totality of the circumstances, we agree with the trial court's conclusion that Officer Schlegel and Officer Yarmush had reasonable grounds to believe that Ernest was in actual physical control of the truck while inebriated. A complaint was made concerning a truck sitting in a parking lot which was revving its engine. An hour later, Officer Schlegel and Officer Yarmush arrived at the parking lot and verified the truck complained of by talking to the complainant. The officers then discovered a male, identified as Ernest, sitting in the middle of the bench-style seat sleeping, with the truck's engine running and headlights on. Ernest exited the truck and was unable to stand on his own. Ernest also smelled of alcohol and slurred his words. All of these facts, viewed collectively, are sufficient enough to establish reasonable grounds. The trial court, therefore, did not err as a matter of law in finding that the officers had reasonable grounds in concluding that Ernest drove, operated, or was in actual physical control of the movement of a vehicle.
Accordingly, the trial court's order is affirmed.
By order dated March 31, 2015, the Court directed that the Bureau's motion to strike reply brief and Appellant's answer thereto be disposed of with the merits of this appeal. The Bureau argues that Ernest's reply brief does not comply with Pa. R.A.P. 2113(a), because it is not a reply to matters raised by the Bureau in its brief that were not previously raised in Ernest's brief. Because the reply brief specifically seeks to distinguish seven cases relied upon by the Bureau in its brief and identifies cases that Ernest contends are more relevant than those cases, the reply brief is sufficiently within the requirements of Pa. R.A.P. 2113(a), such that we will not strike it. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of July, 2015, Appellee Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing's motion to strike reply brief is DENIED, and the order of the Court of Common Pleas of Schuylkill County, dated November 18, 2014, is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge