Opinion
No. 438 C.D. 2014
03-09-2015
Samuel J. Moore, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Samuel J. Moore (Licensee) appeals from the February 21, 2014 order of the Court of Common Pleas of Mercer County (trial court) denying Licensee's appeal from the one-year suspension of his personal driving privilege and the one-year disqualification of his commercial driving privilege that were imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to sections 1547(b)(1)(i) and 1613(d.1) of the Vehicle Code (Code), 75 Pa.C.S. §§1547(b)(1)(i), 1613(d.1), respectively. We affirm.
Section 1547(b)(1)(i) of the Code provides that DOT shall suspend a person's operating privilege for twelve months for refusing to submit to chemical testing following an arrest for a violation of section 3802 of the Code, 75 Pa.C.S. §3802 (relating to driving under influence of alcohol or controlled substance). Section 1613(d.1), added by the Act of July 5, 2005, P.L. 100, provides that DOT, upon receipt of a report of test refusal, shall disqualify a person from driving a commercial motor vehicle for the same period as if it had received a report of the person's conviction for violating one of the offenses listed in section 1611(a) of the Vehicle Code, 75 Pa.C.S. §1611(a). Section 1611(a)(1), 75 Pa.C.S. §1611(a)(1), states that DOT shall disqualify a person from driving a commercial motor vehicle for a period of one year for the first violation of section 3802 of the Code.
At 3:00 a.m. on October 31, 2013, Officer J. Brad Davis of the Hermitage Police Department initiated a traffic stop of a white Cadillac operated by Licensee, after observing that the area around the license plate was extremely dark. Upon closer inspection, Officer Davis observed a tinted plastic cover on top of the license plate. As he approached the vehicle, Officer Davis detected a strong odor of alcohol emanating from inside and noticed that Licensee's eyes were bloodshot and watery. Officer Davis asked Licensee to exit the vehicle for field sobriety testing, and when Licensee complied the odor of alcohol was more prevalent. Officer Davis thereafter conducted several field sobriety tests, all of which indicated that Licensee was impaired, as well as a preliminary breath test, which revealed the presence of alcohol above the legal limit. (Trial court op. at 1-3.)
Section 1332(b) of the Code prohibits a license plate from being obscured, stating that:
It is unlawful to display on any vehicle a registration plate which:
75 Pa.C.S. §1332(b).(1) is so dirty as to prevent the reading of the number or letters thereon at a reasonable distance;
(2) is obscured in any manner which inhibits the proper operation of an automated red light enforcement system in place pursuant to section 3116 (relating to automated red light enforcement systems in first class cities) or 3117 (relating to automated red light enforcement systems in certain municipalities); or
(3) is otherwise illegible at a reasonable distance or is obscured in any manner.
Officer Davis informed Licensee that he was under arrest for driving under the influence (DUI) and read him verbatim the implied consent warnings of the DL-26 form. Officer Davis then asked Licensee to submit to a blood test, but Licensee refused. Licensee also refused to sign the DL-26 form. Since the traffic stop was initiated around the corner from Licensee's home, Officer Davis released Licensee and permitted him to walk home with a passenger in the vehicle. Officer Davis subsequently reported Licensee's refusal to DOT. (Trial court op. at 3-4.)
Form DL-26 contains the chemical testing warnings required by section 1547 of the Vehicle Code, 75 Pa.C.S. §1547, pursuant to our Supreme Court's decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989). These warnings inform a motorist that he or she is under arrest; that he or she is being requested to submit to a chemical test; that he or she will lose his or her operating privileges and potentially face stricter criminal penalties if the request is refused; and that there is no right to remain silent or speak to an attorney.
By separate notices dated November 14, 2013, DOT advised Licensee that his operating and commercial driving privileges would be suspended for a period of one year as a result of his refusal to submit to chemical testing in accordance with section 1547 of the Code. (Reproduced Record (R.R.) at 3a, 6a.) Licensee timely appealed, and the trial court held a de novo hearing on February 21, 2014. DOT introduced into evidence, without objection, two certified packets of documents which included a record of Licensee's convictions, DOT's suspension notices, and the DL-26 form read to Licensee, which noted Licensee's refusal to sign.
These documents were not included in Licensee's reproduced record.
Officer Davis testified that as Licensee's vehicle was driving ahead of him in the early morning hours of October 31, 2013, he observed the area around the license plate to be "extremely dark" and suspected an equipment malfunction relating to the license plate light. (R.R. at 15a.) However, as he got closer to the vehicle, Officer Davis noted that the light was working but that the license plate was obscured by a tinted plastic cover. Id. Officer Davis testified that he had to close the distance between himself and Licensee's vehicle to "about a car length" and "kind of like shimmy [his] vehicle from side to side to avoid the way [his] lights were reflecting off the plastic, just to be able to read the plate." (R.R. at 15a-16a.) Officer Davis also testified that he observed Licensee driving on top of the white fog line at least twice, but no more than ten times. (R.R. at 16a.) Officer Davis then activated his emergency overhead lights and initiated a traffic stop. Id.
Officer Davis approached the vehicle and made contact with the driver, whom he identified as Licensee. Id. Officer Davis stated that he detected a strong odor of alcohol emanating from inside the vehicle and noticed Licensee's "blood shot watering eyes." (R.R. at 17a.) He asked Licensee to exit the vehicle, after which he performed several field sobriety tests, all of which indicated that Licensee was impaired. (R.R. at 17a-20a.) Officer Davis also conducted a preliminary breath test, which revealed the presence of alcohol above the legal limit. (R.R. at 20a-21a.) Officer Davis stated that he informed Licensee that he was under arrest for DUI and read him "verbatim roadside the DL-26 form." (R.R. at 21a.) Officer Davis asked Licensee to submit to a blood test, but he refused, and he also refused to sign the DL-26 form. (R.R. at 23a.) Officer Davis testified that since Licensee only "lived right around the corner and he was in the presence of a passenger," he allowed Licensee to walk home. Id.
On cross-examination, Officer Davis acknowledged that he questioned Licensee regarding an item that was thrown out of the sun roof of the vehicle, which Licensee identified as a cigarette, as well as a possible outstanding warrant, which could not be substantiated. (R.R. at 24a-26a.) When presented with a photograph of Licensee's license plate taken at night, Officer Davis stated that it was easy to read in the photograph. (R.R. at 27a.) Officer Davis also acknowledged that he did not have any video of the incident, that Licensee was traveling at a safe speed prior to the stop, and that Licensee promptly pulled over after he was signaled. (R.R. at 29a.) Officer Davis then reiterated that Licensee refused a blood test or to sign the DL-26 form and that he decided to release Licensee "since he was in the presence of a passenger and . . . he was so close to home." (R.R. at 30a.) Officer Davis admitted that Licensee's vehicle was neither secured nor towed, nor was Licensee ever handcuffed. Id.
On re-direct examination, Officer Davis testified that the license plate depicted in the photograph presented on cross-examination was not in the same condition as on the date of the traffic stop, when it had a tinted cover. (R.R. at 32a.) Officer Davis noted that paragraph 1 of the DL-26 form which he read to Licensee advises a person that he is under arrest for the offense of DUI. (R.R. at 33a.) Upon questioning by the trial court, Officer Davis admitted that Licensee's driving on the fog line was not the reason he initiated a traffic stop. (R.R. at 35a.)
Officer Adam Mild of the Hermitage Police Department testified that he provided back-up assistance to Officer Davis on the night of the stop, heard Officer Davis read the DL-26 form to Licensee, and heard Licensee respond "no" following the reading of this form. (R.R. at 38a-39a.) Officer Mild agreed that it was appropriate to release Licensee to the custody of the passenger in the vehicle. (R.R. at 39a.) On cross-examination, Officer Mild stated that he arrived at the scene shortly after the stop was initiated and Officer Davis was asking Licensee to step out of the vehicle to perform field sobriety tests. Id. Officer Mild could not recall if the vehicle was secured, but he acknowledged that the vehicle was not towed and that Licensee was not handcuffed. (R.R. at 40a.) Officer Mild also acknowledged that he had never made an arrest for DUI where the person was not handcuffed, walked away from the scene, and the vehicle was left unlocked with the keys inside. (R.R. at 41a.) On re-direct examination, Officer Mild testified that he heard Officer Davis advise Licensee that he was under arrest for DUI. (R.R. at 42a.) Upon questioning by the trial court, Officer Mild reiterated that he heard Licensee state that he would not sign the DL-26 form. Id. Licensee did not testify or present any witnesses.
By order dated February 21, 2014, the trial court denied Licensee's appeal. Licensee thereafter filed a notice of appeal with the trial court. In a subsequent opinion, the trial court rejected Licensee's arguments that he was not placed under arrest at the time of the request to submit to chemical testing, that his traffic stop was unjustified and pretextual in violation of his right to privacy, and that Officer Davis lacked reasonable grounds to believe that he was operating a motor vehicle under the influence of alcohol.
Regarding the arrest, the trial court explained that Officers Davis and Mild both testified that Licensee was advised that he was being placed under arrest for DUI. Regarding the traffic stop, the trial court noted that a police officer is authorized to stop a motor vehicle based on a reasonable suspicion of a violation of the Code and that Officer Davis stopped Licensee's vehicle due to an obscured license plate, which is prohibited under section 1332(b) of the Code. Regarding reasonable grounds, the trial court cited Officer Davis' testimony that he detected a strong odor of alcohol emanating from Licensee's vehicle, and an even stronger odor on his person, that Licensee's eyes were bloodshot and watery, and that Licensee performed poorly on numerous field sobriety tests.
On appeal to this Court, Licensee argues that the traffic stop was illegal, and, therefore, DOT failed to establish reasonable grounds to request that he submit to chemical testing. Licensee also reiterates his argument that he was never placed under arrest prior to this request. We disagree with both of Licensee's arguments.
Our scope of review in a driver's license suspension case is limited to determining whether the findings of the trial court are supported by competent evidence, whether errors of law were committed or whether there has been a manifest abuse of discretion. Hockenberry v. Department of Transportation, Bureau of Driver Licensing, 972 A.2d 97 (Pa. Cmwlth. 2009).
Section 1547(a) of the Code, commonly referred to as the Implied Consent Law, provides as follows:
(a) General rule. --Any person who drives, operates or is in actual physical control of the movement of a vehicle in this 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 a vehicle:
75 Pa.C.S. §1547(a). Section 1547(b)(1)(i) sets forth the consequences for refusing to submit to chemical testing, stating that "[i]f any person placed under arrest for a violation of section 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 . . . for a period of 12 months." 75 Pa.C.S. §1547(b)(1)(i).(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
In order to sustain a suspension of a licensee's operating privilege for refusing to submit to a chemical test, the Department must establish that: (1) the licensee 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 or a controlled substance; (2) the licensee 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. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999); Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010).
The standard of reasonable grounds necessary to support a license suspension is not very demanding and is a lesser standard than the probable cause standard needed to support a DUI conviction. Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth. 2010); Marone. Additionally, it is not necessary for the officer to be correct in his belief. Gammer. 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 an intoxicating substance. Banner; Marone. Moreover, an officer may acquire reasonable grounds to believe that a licensee was driving under the influence of alcohol at any time during the course of interaction between the officer and the licensee. Department of Transportation, Bureau of Traffic Safety v. Stewart, 527 A.2d 1119, 1120 (Pa. Cmwlth. 1987).
Licensee argues that under prior law, such as Banner, a police officer was only required to make a showing that he had reasonable grounds to believe that the motorist was operating under the influence, whereas section 1547(a)(1), following amendments in 2003, requires a greater showing that the police officer had reasonable grounds to believe that the motorist was operating under the influence of alcohol or a controlled substance in violation of section 3802 of the Code. Licensee interprets this section as requiring a police officer to reasonably believe that a conviction for the underlying offense could be sustained, and asserts that the decision of a criminal court concerning the legality of a stop is the best indicator of the reasonableness of the police officer's belief. Licensee notes that, in his criminal case, the traffic stop was declared to be unlawful and all evidence relating thereto was suppressed, leading to the nolle prosequi of his criminal charges.
In this regard, Licensee asserts that any cases based on the prior statutory language are no longer apposite.
While Licensee correctly recites the requirements of section 1547(a)(1) of the Code, he provides no support for the interpretation that he currently advocates. Contrary to Licensee's arguments, the 2003 amendments to section 1547(a)(1) did not change the substantive requirements relating to reasonable grounds, nor did these amendments render cases decided under the prior statutory language inapposite. Instead, we have continued to apply the same reasonable grounds analysis in cases decided after the 2003 amendments. See, e.g., Gammer, Marone; Kachurak v. Department of Transportation, Bureau of Driver Licensing, 913 A.2d 982 (Pa. Cmwlth. 2006). Under this analysis, we have consistently held that "a driver's guilt or innocence of a criminal offense is not at issue in the license suspension proceedings" and that "the legality of a driver's underlying arrest for driving under the influence of alcohol is irrelevant for purposes of a license suspension proceeding for refusal to submit to chemical testing." Kachurak, 913 A.2d at 985-86 (citations omitted).
Although the legality of Licensee's arrest has no bearing on this matter, we nevertheless note that Licensee's contention that the traffic stop was pretextual and lacked reasonable grounds has no support in the record. Instead, Officer Davis credibly testified that he pulled Licensee over after observing what he perceived to be an equipment violation relating to the license plate light on Licensee's vehicle. As he got closer to Licensee's vehicle, Officer Davis discovered that the license plate was actually obscured by a tinted cover, in violation of section 1332(b) of the Code, and then he initiated the stop. Based upon this testimony, we cannot conclude that the traffic stop was pretextual or lacked reasonable grounds.
Section 6308(b) of the Code authorizes a police officer to stop a vehicle based upon a "reasonable suspicion that a violation of [the Code] is occurring or has occurred." 75 Pa.C.S. §6308(b).
In the course of this argument, Licensee also asserts that "it appears that the Supreme Court of Pennsylvania is prepared to find that illegal stops vitiate license suspensions based on refusal where the traffic stop is motivated by the officer's animus to make the arrest" and that "[t]his remedy is based upon the enhanced privacy provisions afforded by Article I, section 8 of the Pennsylvania Constitution." (Licensee's Brief at 12.) Licensee cites to the following statement by our Supreme Court in McKinley v. Department of Transportation, Bureau of Driver Licensing, 838 A.2d 700, 705 n.3 (Pa. 2003):
These holdings were based on Fourth Amendment analysis. This Court has not considered the propriety of suppression in the Implied Consent Law setting in the context of a challenge involving the assertion of the enhanced privacy protections under Article I, Section 8 of the Pennsylvania Constitution.
However, an identical assertion was considered and rejected by this Court in Osselburn v. Department of Transportation, Bureau of Driver Licensing, 970 A.2d 534 (Pa. Cmwlth. 2009). In Osselburn, two Pennsylvania State Police Troopers pulled over a driver after observing him make a sharp turn without signaling and then driving in the wrong lane for about 35 to 40 feet. The driver alleged before the common pleas court that the Troopers were stalking and/or targeting him after observing his vehicle parked at a bar for several hours and that his failure to signal was a pretext. The driver acknowledged that the legality of a traffic stop is generally irrelevant in a chemical testing refusal code, but cited McKinley and Article I, section 8 of the Pennsylvania Constitution, which states, in pertinent part, that "people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures." PA. CONST. art. I, §8.
The trial court rejected these assertions, noting that the Troopers had objective bases to stop and arrest the driver, including video evidence of the driver's failure to utilize his turn signal and a failed breathalyzer test. On appeal, this Court affirmed, noting the diminished expectation of privacy in one's vehicle, Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008) (holding that DUI roadblocks did not violate Article I, section 8), and the driver's careless operation of his vehicle. Additionally, we noted the lack of any precedent to support the driver's argument that a stop for a violation of the Code violates a person's privacy rights if the police officer was motivated by animus to make the arrest. In this case, Officer Davis had an objective basis/reasonable grounds for the stop, i.e., the obscured license plate, as well as the arrest, i.e., odor of alcohol, failed field sobriety tests, and results of the preliminary breath test. Thus, we likewise reject Licensee's assertion in this case.
Licensee also argues that he was not placed under arrest for DUI, when he was never handcuffed or restrained and he was allowed to walk away from the scene with his passenger and with full access to his vehicle. Licensee notes that section 1547(b)(1)(i) requires that a person be "placed under arrest" and asserts that this language requires more than the mere recitation of a form telling the motorist he is under arrest, such as the police officer detaining or restricting the freedom of the motorist. Licensee relies on Nornhold v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 59 (Pa. Cmwlth. 2005), for support. However, Licensee's reliance on that case is misplaced.
In Nornhold, two Pennsylvania State Police Troopers observed a driver make a turn without signaling and travel in the wrong lane of a two-lane street before parking on another street. As the Troopers pulled up alongside the vehicle, a passenger opened a door, striking the Troopers' vehicle. At the same time, the driver exited the vehicle and, ignoring the Trooper's direction to stop, continued into her residence. The Troopers proceeded to knock on the door of the residence. The driver answered and the Trooper asked for her license, owner's card, and proof of insurance. The driver became belligerent, refused to produce the requesting information, and attempted to close the door, prompting the Trooper to enter the residence. The Trooper advised the driver that her vehicle had been in an accident and she was required to provide the requested information. The driver attempted to go upstairs, but was restrained by the Trooper.
At that time, the Trooper detected the odor of alcohol, observed the driver's eyes to be bloodshot, and noted that she did not appear to have complete control over her physical movement. The Trooper escorted the driver back outside and initiated a DUI investigation. The driver failed two field sobriety tests, refused a third, and a preliminary breath test revealed the presence of alcohol above the legal limit. The Trooper then informed the driver that she was being placed under arrest for DUI. The driver was transported to the police barracks for a breathalyzer test, but was unable to provide sufficient samples, thereby resulting in a deemed refusal and the subsequent suspension of her operating privilege by DOT.
The driver appealed and the common pleas court reversed the suspension, concluding that her arrest was unlawful. In a subsequent opinion, the trial court explained that the driver was under "arrest in fact" when she was restrained by the Trooper from going upstairs. Id. at 61. However, the trial court conceded that its reversal of the suspension was not proper, noting that the legality of the driver's arrest was irrelevant since the Trooper had reasonable grounds to believe that she had been driving while under the influence of alcohol when he asked her to take a breathalyzer test. The trial court invited this Court to correct its error.
On appeal, this Court reversed. We agreed with the trial court that the driver had in fact been arrested by the Trooper in her home when he restrained her from going upstairs. We explained that an arrest for purposes of section 1547 of the Code has been defined as "any act that indicates an intention to take a person into custody and subjects that person to the actual control and will of the arresting officer." Id. at 62. We noted that whether a licensee has been placed under arrest for purposes of section 1547 is a factual rather than a legal determination and that in making this determination, the inquiry focuses on whether the licensee should infer from the totality of the circumstances that he is under the custody and control of the police officer. Id.
However, we further explained that the legality of an arrest has "no bearing in the context of a license suspension, which is a civil proceeding." Id. at 63. We noted DOT's authority to suspend a person's operating privilege under section 1547 for refusing to submit to chemical testing and that "such authority is not conditioned on the validity of the arrest which gives rise to the request for a breathalyzer test." Id. (citing Department of Transportation v. Wysocki, 535 A.2d 77, 79 (Pa. 1987)). In other words, we stated that "[t]he legality of the underlying arrest . . . is irrelevant to determining the propriety of Nornhold's license suspension under the Implied Consent Law." Id. at 64. We stressed that the proper inquiry in such cases is whether, at any time during the course of interaction between a police officer and a driver, the police officer was given reasonable grounds to believe that the driver was operating a vehicle under the influence of alcohol.
Contrary to Licensee's argument, Nornhold does not require a police officer to physically restrain a driver in order to effectuate an arrest. Nornhold simply concluded that the physical restraint exercised by the Trooper in the driver's home in that case was sufficient to constitute an arrest. In fact, this Court has explicitly held that the application of physical force is not required for an arrest. Gresh v. Department of Transportation, Bureau of Traffic Safety, 464 A.2d 619 (Pa. Cmwlth. 1983) (transport and release of driver at his residence exhibited such custody and control as to constitute an arrest under section 1547(b)(1) of the Code); Commonwealth v. Miles, 304 A.2d 704 (Pa. Cmwlth. 1973) (driver submitted to the restraint implicit in an arrest and accompanied the trooper to the office of the justice of the peace).
In the present case, Officers Davis and Mild credibly testified that, following the field sobriety and preliminary breath tests, Licensee was informed that he was being placed under arrest for DUI. Officer Davis then read Licensee the DL-26 form, the first paragraph of which states that "[y]ou are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code." Officer Davis testified that, at that time, he and Licensee were standing "right next to the police car." (R.R. at 29a.) We conclude that the actions of Officer Davis sufficiently indicated to Licensee that he was in the custody and control of the officer. Thus, the trial court properly concluded that DOT met its burden of establishing that Licensee was under arrest at the time that he was asked to submit to chemical testing.
As noted above, the DL-26 form that Officer Davis read to Licensee was not included in Licensee's reproduced record but was submitted into evidence before the trial court.
Likewise, Licensee has failed to cite any case law to support his assertion that the fact that he walked away from the scene evidences the lack of an arrest. Rule 519(b)(1) of the Rules of Criminal Procedure addresses arrests without warrants and provides that:
(1) The arresting officer shall promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, when the following conditions have been met:
(a) the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. §3802;
(b) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and
(c) the arresting officer has reasonable grounds to believe that the defendant will appear as required.
In this case, Licensee was arrested for a violation of section 3802 of the Code. Officer Davis testified that he released Licensee because he lived "right around the corner and he was in the presence of a passenger" from his vehicle. (R.R. at 23a.) Officer Mild agreed that it was appropriate to release Licensee to the custody of the passenger in the vehicle. (R.R. at 39a.) Thus, Licensee's assertion is without merit.
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of March, 2015, the order of the Court of Common Pleas of Mercer County, dated February 21, 2014, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge