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HomeMy WebLinkAbout04-5533 II SCOTT A. SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 04- S'~3.3 GuL ~~ COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE AND NOW comes the Appellant, Scott A. Sanders, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., Esquire, respectfully avers the following: 1. Appellant resides at 278 Susquehanna Street, Enola, Pennsylvania 17025. 2. The Appellant received an official Notice of Suspension dated October 25th, 2004, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege were being suspended for a period of one year, effective suspension date November 29th, 2004 at 12:01 AM. A true and correct copy of the Notice is attached as Exhibit "A". 3. The Appellant submits that the police officer lacked a reasonable basis to request Appellant to submit to a chemical test. 4. The Appellant submits that he did not intelligently and voluntarily refuse to submit to a chemical test. II WHEREFORE, your Appellant respectfully requests your Honorable Court to schedule an evidentiary hearing on the matter. Date: 1111b~ R:SP~ submitted, . ~iCk F. L~, Jr., Esquire ~g~ Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II SCOTT A. SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 04 - S'S ~ Ct~l '---r fll... 'YY'L COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL ATTORNEY VERIFICATION The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that: 1. He is the attorney for the Appellant, Scott A. Sanders; 2. He is authorized to make this verification on his behalf; 3. The facts set forth in the foregoing Appeal are known to him and not necessarily to his client; 4. The facts set forth in the foregoing Appeal are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Respectfully submitted, Date: tl . '1/t'1 ~ ~~trick F. Lauer, Jr~, Esquire (2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II LANCE WILLARD MARTIN, Appellant v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA NO.: Ol{ - S'S33 G c>~L<-r €.12-~ LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date: , f M"'1 Respectfully submitted, ~ ?- ~~ trick F. Lauer, Jr., Esquire 108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 /' .rky-f ft t ""' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 25, 2004 SCOTT A SANDERS 278 SUSQUEHANNA AVE WID I 042926187407901 001 PROCESSING DATE 10/18/2004 DRIVER LICENSE. 22847170 DATE OF BIRTH 07/05/1970 ENOLA PA 17025 Dear MR. SANDERS: This is an Official Notice of the suspension of your Driving Privilege as authorized by Section 1547BII of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 07/13/2004: · Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 11/29/2004 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current PennsYlvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 11/29/2004. You may surrender these items before, 11/29/2004, for earlier credit; however, YOU may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, YOU may apply for and obtain a photo identification card at any Driver License Center for a cost of $10.00. You must present two (2) forms of proper iden- tification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.> in ~rder to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive your licenseCs). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permi ts and/or camera cards to PennDOT. If YOU do not have any of these items, send a sworn nota- rized letter stating YOU are aware of the suspension of your driving privilege. You must specifY in your letter why yoU are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation 042926187407901 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's licensees), learner's permit(s), and/or a sworn notarized letter, PennDOT will send yOU a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. . Otherwise, yoU will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If yOU do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a) (4) of the PennsYlvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, OCTOBER 25, 2004, of this letter. I~ you ~1le an ap- pea~ in the county Court, the court will give you a time- stamped certi~ied copy o~ the appeal. In order for your appeal to be valid, yoU must send this time-stamped certi- fied COpy of the appeal by certified mail to: PennsYlvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 11/29/2004. 042926187407901 Sincerely, .~~,~ Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800 -932-460 0 TDD IN STATE 1-800-228 - 0676 OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dmv.state.pa.us ;0 ~ "i0- n t-) ~ c:::> 0 C = ~ ::;:::-- .s::- -,1, ., i % -::1 t:\".: r ,11 0 :r: tf.:":: :..1 ...::: ~~ ......... ).J () 1" I :.0 C ~ w Qc ~ -.,,. ~'B t (' \ ::t"lI" p:! <.::; z ~0 ~ () -..r::. c:: co cSlTl fj'- Z --I ~ ~ - \,() < ~ -- 11 SCOTT A. SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 04-5533 Civil Term COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPF..AL AMENDED APPEAL FROM SUSPENSION ()F OPERATOR'S PRIVILEGE AND NOW comes the Appellant, Scott A. Sanders, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., Esquire, respectfully avers the following: 1. Appellant resides at 278 Susquehanna Street, Enola, Pennsylvania 17025. 2. The Appellant received an official Notice of Suspension dated October 25t\ 2004, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privil,ege were being suspended for t. a period of one year, effective suspension date November 29th, 2004 at 12: 01 AM. A true and correct copy of the Notice is attached as Exhibit "A". 3. The Appellant submits that the police officer lacked a reasonable basis to request Appellant to submit to a chemical test. 4. The Appellant submits that hE~ did not intelligently and voluntarily refuse to submit to a chemical test. 5. The request for chemical testing is a critical stage of the prosecution in which the appellant is confronted by II his adversary and the decision that he must make will impact his potential fines, prison time, and length of suspensions. 6. A critical stage in the prosecution requires the right to have an attorney. 7. The Appellant submits that he did not intelligently and voluntarily refuse to submit to a chemical test. WHEREFORE, your Appellant respectfully requests your Honorable Court to schedule an evidentiary hearing on the matter. Respectfully submitted, Date:~'-1 ------:;?' //~ PatricK F. L er, Jr., ~squlre 2108 Market street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II SCOTT A. SANDERS, Appellant v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 04-5533 Civil Term LICENSE SUSPENSION APPEAL ATTORNEY VERIFICATION The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that: 1. He is the attorney for the Appellant, Scott A. Sanders; 2. He is authorized to make this verification on his behalf; 3. The facts set forth in the foregoing Appeal are known to him and not necessarily to his client; 4. The facts set forth in the for,egoing Appeal are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to falsification to authorities. the penalties of 18 Pa. C.S. 4904, relating to unsworn Date:~ Respectfully submitted, ~/ pL~, Jr., Esq;;"ire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II LANCE WILLARD MARTIN, Appellant v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA NO.: 04-5533 Civil Term LICENSE SUSPENSION APPl!:AL CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the below, foregoing Appeal upon the person and in the manner indicated which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date: II/liD '1 Respectfully submitted, I? . ~trick ~Lauer, Jr., Esqu1re 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 'I 1,\ x\ _04 ~ {, SCOTT A SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 04 - ts 3.3 (!,uLL'-r ~ COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this g/k/ day of )~ 2004, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall be held on ),mJ1~ )//daY of ~~~ 200~ at 0' Clock;LJ.a..j- m. in Courtroom No. );J of the Cumberland County Courthouse, Carlisle, Pennsylvania. A supersedes is granted pursuant to Vehicle Code Section 1550(b) (1) until such time that this honorable court resolves this appeal. BY THE COURT: ) J. f · Difltribution: v...-'PA Dept. of Transportation, Office of Chief Counsel, Room 103, ~nsportation & Safety Building, Harrisburg, PA 17120 v7~atrick F. Lauer, Jr., Esq., 2108 Market st., Camp Hill, Pa 17011 ~1.~~ tq1C~ )J-/D~Di \;'.r... 'l.-'.f. ~, ., t ~ Llr:~.-' . I\..c.1 ',: '" "/','-'~~ .,1I.J L 0 :Ol!;rJ 0 t\or~ ~Daz >\ci'/lC,>~C'j:-Ll02:J 3{-tL :10 3~}::j':;(}-C::ll~ II ~G'I G 5 2004 ~ ~\ \ SCOTT A SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 04-5533 Civil Term COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL AND NOW, this ORDER OF COURT 8 r<< day of )~ 2004, upon consideration of this AMENDED APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall be held on 1J;n{d1;:Ji..~fof ~~ 20o,J; at O'ClOCk//;t't1.~. in cour~oom No. Y of the Cumberland County Courthouse, Carlisle, Pennsylvania. A supersedes is granted pursuant to Vehicle Code Section 1550(b) (1) until such time that this honorable court resolves this appeal. BY THE COURT: /('/ l, 'A/\ /! ('I: 1/11 , J' f) J. [, Distribution: ~ Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA Vl04 ~Patrick F. Lauer, Jr., Esq., 2108 Market st., Camp Hill, Pa 17011 /,li'!".,- \...., . ---,; . u ... . ~-: ro :01 l.~~ 01 :~ :~;~ ~j h'~!';" "i..lLI f.., i\6'L(c,)~L='.;:i 3.:';1 :!:J 3~~ti;'C)-G~-lj:i SCOTT A. SANDERS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : 04-5533 CIVIL TERM PENNSYLVANIA DEPARTMENT OF TRANSPORTATION IN RE: APPEAL FROM SUSPENSION OF OPEFIATOR'S PRIVILEGE ORDER OF COURT AND NOW, January 6,2005, hearing in the above matter fixed for Monday, January 31, 2005, at 11 :00 a.m., will bE~ in Courtroom NO.4 before the Honorable Kevin A. Hess. By thE~ Court, P.J. Patrick F. Lauer, Jr., Esquire 2108 Market Street Camp Hill, PA 17011 George Kabusk, Esquire Pa. Dept. of Transportation Office of Chief Counsel 3rd Floor Riverfront Office Center Harrisburg, PA 17104-2516 C~I1~ b~~ !^1ASNN3d or.:,;.:';' J':1nl.,f~" / , f.. 4 i i' - " t' .. ,\<. " ; I , _IV ~!~j\~'J C:~:j r ,I SCOTT A. SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 04-5533 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA, PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL ORDER AND NOW, this I f~ day of February, 2005, after hearing, the court finding that the circumstances of this case are not unlike those presented in Commonwealth v. Dixon, 596 A.2d 286 (Pa.Cmwlth 1991) (except here there was no accident), the appeal of Scott A. Sanders from the suspension of his operating privileges is SUSTAINED and the suspension order VACATED, BY THE COURT, ~auer, Esquire For the Appellant ~rge Kabusk, Esquire For PennDOT .> :rlm ~ ()~11-05 ,. C'- r .-, '" ~j SCOTT A. SANDERS, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF NO. 04-5533 CIVIL TERM PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU: OF DRIVER LICENSING, Appellant IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Monday, January 31, 2005, in Courtroom Number 4. APPEARANCES: GEORGE H. KABUSK, Esquire Office of Chief Counsel For the Commonwealth PATRICK F. LAUER, JR., Esquire For the Defendant V1NV^1;SNN3d ll"r'~". C" ." '~-."i-" ^-L1\!i F.) I ',_,:: - "",:.:;::j'1: JJ S2 :8 lid 1- HVW SOOZ ,," '1'-'" ;,"'''', '-"'d ~Hl ,~ N::J'Z';'Vi\jU:-L:..UU:i ::u 3:J!~:liJ-(mH INDEX TO WITNESSES FOR THE COMMONWEALTH DIRECT CROSS Officer Daniel Hair 4 9 INDEX TO EXHIBITS FOR THE COMMONWEALTH MARKED Ex. No.1 - certified driving record 3 2 REDIRECT 20 ADMITTED 3 RECROSS 21 1 (Whereupon, Commonwealth's Exhibit No.1 2 was marked for identification.) 3 THE COURT: Good morning. 4 MR. KABUSK: Good morning. This is the case 5 of Scott A. Sanders versus the Pennsylvania Department of 6 Transportation, Case Number 04-5533. This is an appeal from 7 a notice of suspension dated October 25th, 2004, which 8 informed the petitioner that as a result of his violation of 9 Section 1547 of the Vehicle Code relating to a chemical test 10 refusal on 7/13 of 2004 his driving privilege was suspended 11 for a period of one year. 12 What's been marked as Commonwealth's Exhibit 13 No. 1 is a packet ef documents under seal and certification. 14 I have provided a copy to the petitioner. Sub-Exhibit 1 is 15 the Official Notice of Suspension. Sub-Exhibit 2 is the 16 chemical test warnings. And Sub-Exhibit 3 is a letter 17 regarding a point assessment. And 4 is a Citation. And 5 18 is the driving record. 19 I would note that fer the purposes of this 20 matter, a quick review of his driving record indicates he 21 has no prior 3731's or 3802's. I move for the admission of 22 what's been marked as Commonwealth Exhibit No. l. 23 THE COURT: Unless there is objection, we 24 will admit it. 25 MR. LAUER: No objection, Your Honor. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KABUSK: The Department now calls Officer Hair. MR. LAUER: Judge, just so you knew, we had filed an amended appeal dealing with the right to counsel as a basis of our appeal, that we are withdrawing, and the only issue, Judge, that we will be dealing with is the reasonable suspicion to request submission to chemical testing. THE COURT: Okay. Whereupon, OFFICER DANIEL HAIR, having been duly swern, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Officer Hair, please state your name and spell your last name fer the record? A Officer Daniel Hair, H-a-i-r. Q And where are you employed? A The West Shore Regional Police Department. Q During the course of your official duties have you had occasion to investigate an alleged incident of DUI on or about July 13th, 2004? A Yes, I did. Q Would you please tell the Court about that incident? A I was conducting a speed detail in the 300 4 1 block of South 3rd Street in the Borough of Lemoyne when 2 about 2:30 a.m. I timed a green van traveling north on South 3 3rd Street at 38.7 miles per hour in a properly posted 4 twenty-five mile an hour zone. I pursued the vehicle, and 5 it pulled into the parking lot of the Uni-Mart in Lemoyne, 6 which is located at the intersection of South 3rd Street and 7 Hummel Avenue. 8 I exited my patrol vehicle, approached the 9 driver's side, identified myself to the white male operator, 10 and advised him of why he was being stopped. At that point 11 I asked him for his driver's license and vehicle 12 registration. He provided me with a Pennsylvania driver's 13 license that had an OLN of 22847170, that identified him as 14 Scott A. Sanders of 278 Susquehanna Avenue, Enola, 15 Pennsylvania. 16 I asked Mr. Sanders if the address on the 17 decument was still his current address, and he told me yes, 18 it was. When he spoke, I detected an odor of an 19 intoxicating beverage emitting from his breath. I also 20 observed that he had bloodshot and glassy eyes. I asked Mr. 21 Sanders if he had been drinking that evening, and he said he 22 had a couple of beers. 23 At that point I asked him to step from his 24 vehicle and to the rear, at which point I asked him to 25 submit to some tests. And he said that he would submit to 5 1 those tests. At approximately 2:34 a.m. I started standard 2 field sobriety testing, first administering the Horizontal 3 Gaze or HGN test. I then administered the Walk and Turn 4 test, scoring Mr. Sanders as a two. He missed heel to toe 5 on steps four and five of his first nine steps. He did not 6 do the turn as instructed. He teok two steps when he did 7 his turn instead of small steps as instructed. And he 8 missed heel to toe on steps six, seven and eight of the 9 second nine steps. 10 I then administered a One-legged Stand test 11 and scored him as a one. During the eleven to twenty-second 12 phase of the test he swayed while standing in place. Then 13 at 2:41 a.m. I administered a PET to Mr. Sanders, with a 14 result of -- IS MR. LAUER: Objection to any result itself 16 being read, Your Honor. 17 MR. KABUSK: Your Honor, it may not be 18 admissible in the criminal, but we are in the civil realm 19 here, and it would go to the officer's state of mind 20 regarding his reasonable grounds. 21 THE COURT: We will let it go te probable 22 cause. Go ahead. 23 THE WITNESS: The PBT was administered with a 24 result of .10 percent. Based on my observations of the 25 tests, his odor of alcohol, his bloodshot, glassy eyes, the 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact that he told me he had a couple of beers, it was my observation -- or it was my opinion that he was under the influence to a degree he was incapable of safe driving. And at 2:43 a.m. he was placed under arrest for driving under the influence. He was then placed in the back of my patrol car and subsequently transported to the West Shore Booking Center. BY MR. KABUSK: Q What happened when you arrived at the Booking Center? A well, when I put him in the back of the patrol car, I did do a mouth check of my own at 2:44 a.m. We arrived at the Center at 2:50 a.m. And then Agent Heckart started another twenty minute observation time, doing another mouth check at 2:56 a.m. At 3:10 a.m. I did read the D1-26 implied consent form to Mr. Sanders. At that time he stated he would not submit to the test. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Certainly. BY MR. KABUSK: Q I am going to show you what's been marked Commonwealth's Exhibit No.1, Sub-Exhibit No.2. Would you identify that document? A That is the chemical testing warning and 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implied conseDt form that was read to Mr. Sanders. Q And did you read those warnings to him word-for-word? A Yes, I did. Q Just for clarity of record and for brevity, you read one, two, three and four to him? A Yes. Q And then what happened? A And then I said to him, having been advised of your chemical test warnings, will you submit to the chemical breath test, and he said no. MR. KABUSK: Your Honor, for the sake of time, I can dispense with the officer having read allowed the DL-26. THE COURT: Certainly. BY MR. KABUSK: Q And then after he said no, then what happened? A I signed the form stating that I read it to him. I asked him to sign, saying that it was read to him, which he did sign. Q And then did you turn him over to the Booking Center? A Yes. He was turned over to the Booking Center, and I cleared the call. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Do you know what happened after you left? A No. Other than what I have read in their reports, no. MR. KABUSK: No further questiens. CROSS-EXAMINATION BY MR. LAUER: Q Sir, other than the alleged refusal, my client was cooperative with you, correct? A Yes, he was. Q And other than the speed violation, his vehicle was operating safely, correct? A I did not observe any other violation, that's correct. Q In fact, there was no weaving, no swerving, no erratic driving? A No. Q There was no other vehicles on the road at the time, correct? A Not that I recall, no. Q And when you asked him for his license, he gave that to you without any problems, correct? A Correct. Q There was no problems with dexterity? A No. Not with the license. Q And you asked fer the registration and 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 insurance, correct? A I asked for registration. a And he gave that to you without any problems, correct? A If I may look quick. I am not sure if he had his registration or not, I believe he did. I have got to say yes, he did. a And things that you look to determine whether a person mayor may not be impaired are how they retrieve those things and hand those things to you, correct? A That's part of what I look at, yes. a And in this case there were no signs he was impaired by the way he retrieved them and handed them to you, correct? A That alone, no. a Well, those two things? A Pardon me? Q Not only that, but those two things? A Correct. a And for practical purposes, you would agree that your eyes can be bloodshot from a lot of things other than alcohol, correct? A Correct. a And he was honest with you and told you that he had consumed some alcohol, correct? 10 1 A Correct. 2 Q Now, dealing with -- you asked him to get out 3 of the car, correct? 4 A Correct. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And when he got out of the car, there were nc problems getting out of the car, correct? A Correct. Q No signs he was impaired by the way he did that, correct? A Correct. Q And those are things that you look at as well? A That's correct. Q Didn't lean against the car, didn't stagger, didn't sway, et cetera? A No. He did not. Q No signs he was impaired by the way he walked from the vehicle to the rear of the vehicle to do the test, ccrrect? A Nothing that was noted, no. Q And for practical purposes, I mean, just because a person had some alcohol and was speeding, those two things wouldn't necessarily mean you are impaired, correct? A Correct. 11 1 Q Dealing with the field sobriety test -- and 2 in this case you had -- you testified at the prelim, 3 correct? 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q And you remember the court reporter being there? A Yes. Q And those charges were dismissed for lack of prima facie, correct? A Correct. Q Dealing with the field sobriety test, he walked to the rear of the vehicle, cor:~ect? A Correct. Q That was about ten feet, and then he walked a little bit further than that, between your vehicle and his vehicle is where he did the test, correct? A That's where we did the -- where I did the HGN, the One-legged Stand. The Walk and Turn there was a line used. Q But that was all behind his vehicle? A Yeah. Behind and to the side. Two of the tests were behind, and one was to the side. Q So would it be fair to say that he walked about fifteen to twenty feet to go do the test? A I would say ten to fifteen. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And when you activated your lights, he pulled into the Uni-Mart, correct? A Correct. Q And he used his turn signal, correct? A I would have to say correct. I didn't indicate anything that he didn't. Q And where he parked in the Uni-Mart, there was nothing improper or erratic about the way he did park, correct? A Correct. Q Dealing with the field sobriety test, which one was -- the HGN was done first, ccrrect? A Correct. Q And then the Walk and T".nn? A Yes. Q And then the One-leg? A Yes. Q Did you ask him if he had any medical or physical problems prior to specifically the Walk and Turn? A No. Q You did tell him to take nine steps, correct? A Yes. Q And you told him to count out loud? A Yes. Q And he did do that, correct? 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q And you understood him clearly when he spoke to you, talking, correct? A Yes. Q And he did not start the test too soon, correct? A Correct. Q And he stayed in that one position when you demonstrated the test, correct? A That's correct. Q And how long did it take you to demonstrate that test where you had him standing in that locked position, one foot in front of the other? A I don't keep track of the time that it takes me. I could not answer that honesty. Q Well, from an average standpoint, how long does it usually take you to demonstrate the test? A Maybe thirty to forty seconds roughly. Q In that range there? A Right. Q So he would have been in that locked position thirty to forty seconds, correct? A Correct. Q And in that thirty to forty seconds there was no swaying or loss of balance, correct? 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q And that's part of the test, ccrrect? A Yes. Q No signs he was impaired by the way he stood there in a locked position for thirty or forty seconds? A Correct. Q Now, his feet -- there was a line there to walk on is what you are telling me, correct? A Correct. Q How wide was the line about? A Your standard parking line in a parking lot, I would say three to four inches roughly. Q In the nine steps that he went down, his feet stayed on that line for all nine steps, correct? A Correct. Q And he never raised his arms at all in those nine steps, correct? A Correct. Q Which way did you tell him he was supposed tc left or right, when he got to the ninth step? A To the left. turn, that, Q He did turn to the left, correct? A That's correct. Q And he never raised his arms when he did correct? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 turned, A Correct. Q And he didn't turn lose his balance when he correct? A Correct. Q And then he walked back nine steps again, right? A Q A Q Correct. Arms at his side? Yes. All the feet were on the line, correct? A Yes. Q And at no time did any portion cf his foot come off the line for the eighteen steps, correct? A That would be correct. Q And on the second nine steps, he counted out loud, right? A Yes. Q And there was no swaying when he walked the first nine steps, correct? A Correct. Q And there was no swaying when he walked the second nine steps, correct? A Correct. Q You never asked him what time he had actually consumed any alcohol, correct? 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's correct. Q And from a portable breath standpcint, all that does is determine that someone had consumed alcohol, correct? A It gives a reading that would indicate that alcohol was consumed, yes. Q Not as to whether or not a person is actually impaired? A Correct. Q Dealing with the One-leg Stand, you didn't ask him if he had any medical problems prior to doing that, correct? A That's correct. Q Where did you have him do that test, the same place where you -- A Yeah. Normally -- I don't have noted that I asked him to move. But normally if it was in the parking lot of the Uni-Mart, we would move to the sidewalk area or concrete area right in front of the store because that's a level pcsition. Q Can you say in fact that's where it was done? A No. I cannot say for a fact that's where it was done. Q So you can't tell the Judge where the One-leg Stand was actually done? 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Not with any certainly, no. Q When you demonstrated the One-leg Stand, how long did you stand on one leg when you demonstrated the test? A Maybe ten to fifteen seconds. I don't count through the whole thirty seconds that ~hey are to stand for. Q Do you remember testifying at the prelim where you testified that you stand for five or six seconds A I stand to a count of five or six. Q Okay. A But counting the time, I usually have my foot raised while I am explaining to him wha.t I want him to do. Q Which leg did he stand on? A I don't recall. I did not mark down which leg he raised. Q Did you take specific nctes at the specific time he did the test? A Not while he was doing the test. I did wr ite notes down after. Q How much time afterward, after he was done being arrested? A After he was placed in the back of the car, I wrote it dcwn in the car. Q So you wrote it down in ~he car based on what 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you thought he did -- A It is what I observed. Q Do you recall testifying at the prelim that you believed it was his right leg that he stood on? A I do recall that. Q But it could have been his left for all you know? A Correct. Q Now, he did count from 1,001 to 1,030, correct? A Correct. Q Okay. And you understood him clearly when he counted from 1,001 to 1,030? A Correct. Q He never hopped, correct? A Correct. Q He never started the test before you told him to do so, correct? A That's correct. Q And he never raised his arms in the thirty seconds as well, correct? A Correct. Q And at no time from 1,001 to 1,030 did he ever put his foot down? A Correct. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And at no time did he ever lose his balance, correct? A Not that he fell over. I testified he did sway. In the eleven to twenty seconds he did sway, but he did not fall over. Q Now, your body, standing on one leg, would typically move a little bit at some point in time when you are standing on the leg, would you agree with that? A I will agree with that. MR. LAUER: That's all the questions I have, Your Honor. REDIRECT EXAMINATION BY MR. KABUSK: Q You were asked what he did correctly on the One-leg stand. What did he do that caused you to score? A Again, he missed heel to toe on steps four and five of the first nine steps, did the turn improperly. He is instructed to take small steps to the left. He actually just took two steps to the left. And then he missed heel to toe on steps six, seven and eight of the second nine steps. So that would have been the two clues. Q And what were the clues on the One-leg stand? A The swaying between the eleven to twenty seconds. MR. KABUSK: No further questions. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RECROSS EXAMINATION BY MR. LAUER: Q Just back on that. How far was his heel from his toe on step four and five? A I don't know. I didn't get down and measure each step. Q In your training that you received in the manual, it permits a person to keep their heel from their toe up to a half of an inch without being scored, isn't that true? A I would have to look at the manual. I don't know off the top of my head what the distance is, if there is a distance. I know I could see the white parking line between the two steps. Q So you can't say what the manual says how far a person can keep their heel from their toe then, right? A That's correct. Net without looking at the manual, no. Q When was the last time you looked at the manual? A I don't know. I don't look at it everyday. Q Six months, a year ago? A It may have been six to eight months ago. I don't know. Q How far was his heel from his toe on the 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seventh and eighth step? A Again, I don't know. There was enough for me to note there was space between the heel to toe. Q Now, did you specifically tell him on the turn that he could not take two small steps? A Not that he could not. He was instructed to take small steps. Q Small steps? A To the left, yes. Q Did you tell him how many steps you meant by when you said small steps? A No. Q Okay. MR. LAUER: That's all the questions I have. MR. KABUSK: No further questions. The Department calls Agent Heckart. MR. LAUER: Judge, we would ask for an offer of proof. THE COURT: I thought the question is simply the probable cause the officer made. MR. KABUSK: After the officer left, the booking agent, once again, gave him another chance to submit, and he refused. THE COURT: I don't think there is a dispute that he refused. The question is whether there was a basis 22 1 to confront him to begin with. I think we can dispense with 2 his testimoDY. Thank you, sir. 3 Anything else? 4 MR. KABUSK: That is the Department's case, 5 Your Honor. 6 THE COURT: Any argument? 7 (Whereupon, Mr. Lauer closed on 8 behalf of Scott A. Sanders.) 9 (Whereupon, Mr. Kabusk closed on 10 behalf of the Commonwealth.) 11 (End of proceedings) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ~(~ Barbara E. Graham Official Stenographer ----------------------------- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. /l?1vU. , yo'" Date d- A. Hess, J. Judicial District 24 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 SCOTT A. SANDERS, Appellant } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY vs. } COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellee } No. 04-5533 CIVIL Concise Statement of Matters Complained of on AP-J)eal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: AND NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellee, by and through its attorney, Terrance M. Edwards, and, in compliance with the requirements ofPa. R.A.P. 1925, hereby sets forth the matters about which it complains with respect to its appeal of this Court's order entered February 11,2005: I. The trial court erred as a matter of law when it held that Appellee Bureau of Driver Licensing did not satisfy its prima facie burden of proof to support the one-year suspension of Appellant Sanders' operating privilege under 75 Pa.C.S. ~1547(b)(1), viz., that Appellant Sanders (1) was arrested for operating a vehicle while under the influence by a police officer who had reasonable grounds to believe that he was operating or in actual physical control of the movement of a 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 a refusal would result in the suspension of his operating or driving privilege. Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999); Hasson v. Department of Transportation, Bureau of Driver Licensing, _ A.2d _, 2005 Pa. Commw. LEXIS 33 (Pa. Cmwlth. Jan. 25, 2005). 2. The trial court erred as a matter of law in ruling that the arresting police officer did not have reasonable grounds to believe that Appellant Sanders was operating a vehicle while under the influence. "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, 737 A.2d at 1207. This "test. . . is not very demanding." Gasper v. Department of Transportation, Bureau of Driver Licensing, 674 A.2d 1200, 1202 (Pa. Cmwlth. 1996), appeal denied, 685 A.2d 546 (Pa. 1996). "In assessing whether it has met this burden, we consider the totality of the circumstances and determine, as a matter of law, whether a person in the position of the arresting officer could have reasonably reached this conclusion." Heft v. Department of Transportation. Bureau of Driver Licensing, 856 A.2d. 263, 266 (Pa. Cmwlth. 2004) (en bane). (emphasis added). See also Department of Transportation, Bureau of Driver Licensing v. Harbaugh, 595 A.2d 715 (Pa. Cmwlth. 1991) ("The sole purpose of the field sobriety test is to assist the officer in determining whether a driver should be placed under arrest, not whether the driver is actually intoxicated. Wall, 114 Pa.Commonwealth Ct. at 398, 539 A.2d at 9. This court has also held that a police officer who has reasonable grounds to order a chemical test may do so, despite the fact that the driver has passed a field sobriety test prior to the chemical test. Craze v. Department of Transportation, 111 Pa.Commonwealth Ct. 136, 533 A.2d 519 (1987), petition for allowance of appeal denied, 518 Pa. 644, 542 A.2d 1372." Harbaugh, 595 A.2d at 718); Pearson v. Commonwealth, 551 A.2d 394 (Pa. Cmwlth. 1988) (Reasonable grounds existed where arresting officer testified that the licensee had an odor of alcohol on his breath, his eyes were glassy and watery, and he became belligerent); Cf Simpson v. Commonwealth, 525 A.2d 444 (Pa. Cmwlth. 1987) ("Appellant further contends that Trooper Paul did not actually believe that Appellant was intoxicated to an unsafe degree and, therefore, had no legal basis to request submission to a chemical test. While Trooper Paul did testify that he 'thought that [Appellant] was not at the degree that would render him incapable of safe driving,' (N.T. 13), Trooper Paul's belief as to the degre:e of intoxication under which Appellant was driving is irrelevant. He had reasonable grounds to believe that Appellant was operating a motor vehicle under the influence of alcohol. That is a sufficient basis to request Appellant to submit to a chemical test." Simpson, 525 A.2d at 446). 3. Appellee Bureau of Driver Licensing respectfully reserves the right to argue any additional issues that may be raised by the Common Pleas Court's opinion filed in support of the Court's order entered February 11,2005. Respectfully submitted, :A.fa. Terrance M. Edwards Assistant Counsel Appellate Section Vehicle & Traffic Law Division Attorney J.D. No. 25231 Attorney for Appellee COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCEM. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY I.D. NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 SCOTT A. SANDERS, Appellant } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY vs. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellee } No. 04-5533 CIVIL Certificate of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Concise Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements of Pa. RAP. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: The Honorable Kevin A. Hess Judge ofthe Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Patrick F. Lauer, Jr., Esquire Attomey for Appellant Sanders 2108 Market Street, Aztec Bldg. Camp Hill, PA 17011 Date: March 4, 2005 ~ - ,J-., --- TERRANCE M. EDWARDS Attorney for Department of Transportation .., .. J"4#r'~~ ~~. - ....1# ....' C? ~~j; ::'1'= :r"" :;;AJ I CD -'(; :.,}'.. r;? r::") ....) SCOTT A, SANDERS, Appellee vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-5533 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA, PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant LICENSE SUSPENSION APPEAL IN RE: APPEAL OF PENNDOT ORDER AND NOW, February 22, 2005, in accordance with Rule 1925 of the Rules of Appellate Procedure, PennDOT having filed a notice of appeal, the appellant is directed to file of record, within fourteen (14) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. ~rick F. Lauer, Jr., Esquire For the Appellee ,;ferrance M, Edwards, Esquire For the Appellant :rlm '~~ ~ o ;1- ~ y - 05 BY THE COURT, ~./!d ln A, Hess, J. t"" - COMMONWEALTH OF PENNSYL VANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 SCOTT A. SANDERS, Appellee vs, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO, 04-5533 Civil Term Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on February 11, 2005. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236, A copy of the docket entries are attached hereto. '-.. fA , .,.,~ /-- TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATIORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 SCOTT A. SANDERS, Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A NO, 04-:5533 Civil Term Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Lic\:msing, does not desire a copy of the transcript. - ~.. j TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 09545102152005 PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 1 2004-05533 SANDERS SCOTT A (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: HESS KEVIN A Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time. . . ...... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 11/03/2004 8:19 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info SANDERS SCOTT A 278 SUSQUEHANNA STREET ENOLA PA 17025 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 APPELLANT LAUER PATRICK F JR APPELLEE ******************************************************************************** * Date Entries * ******************************************************************************** 11/03/2004 11/04/2004 11/10/2004 11/10/2004 1/06/2005 2/11/2005 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- AMENDED APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE - BY PATRICK F LAUER JR ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 11/8/04 - IN RE APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE - HEARING SHALL BE HELD 1/31/05 11 AM CR 3 - A SUPERSEDES IS GRANTED PURSUANT TO VEHICLE CODE SECTION 1550 (B) (1) UNTIL SUCH TIME THAT THIS HONORABLE COURT RESOLVES THIS APPEAL - BY GEORGE E HOFFER PJ - COPIES MAILED 11/10/04 ------------------------------------------------------------------- ORDER OF COURT - DATED 11/8/04 - IN RE AMENDED APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE - HEARING SHALL BE HELD ON 1/31/05 11 AM CR 3 - A SUPERSEDES IS GRANTED PURSUANT TO VEHICLE CODE SECTION 1550 (B) (1) UNTIL SUCH TIME THAT THIS HONORABLE COURT RESOLVES THIS APPEAL - BY GEORGE E HOFFER PJ - COPIES MAILED 11/10/04 ------------------------------------------------------------------- ORDER OF COURT - DATED 1/6/05 - IN RE APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE - HEAIRNG IN THE ABOVE MATTER FIXED FOR 1/31/05 AT 11 AM WILL BE IN COURTROOM NO 4 BEFORE THE HONORABLE KEVIN A HESS - BY GEORGE E HOFFER PJ - COPIES MAILED 1/6/05 ------------------------------------------------------------------- ORDER - DATED 2/11/05 - AFTER HEARING THE COURT FINDING THAT THE CIRCUMSTANCES OF THIS CASE ARE NOT UNLIKE THOSE PRESENTED IN COMMONWEALTH V DIXON THE APPEAL OF SCOTT A SANDERS FROM THE SUSPENSION OF HIS OPERATING PRIVILEGES IS SUSTAINED AND THE SUSPENSION ORDER VACATED - BY THE COURT KEVIN A HESS J COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - **************************************************'k***************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * ************************************************~*~k***************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT AUTOMATION FEE JCP FEE 35.00 .50 5.00 5.00 10.00 35.00 .50 5.00 5.00 10.00 .00 .00 .00 .00 .00 55.50 55.50 .00 -'", ',_ ,-,'-"'fJV '''':'I':;'!''",:l '-.;,,-L"'~,"-:.t1"}, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *~*"'*-'*-* 1~~W>*' *'*.f'* *'~\:~ ~;*~,*':,..~,i*n * * * * * * * * * End of Case Information h, j cC.",.'f", c.r\<js<lL I t,\j;,j ,:(;[\1 fret m~ roand * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *:* -*,~, * * 1~* ~ *:.~'~I~~'~,f,**~~~ ~:~.!\r~'-* * * * * * * * * * * * * . ". ',,' ,. __.~!it.. v'\.....flll.:i' vG~ "...Ia, i. f.;" S ,.>,' ," ~/. _.7/Y>r. }-:J..~,-,,_.o:-~J~i u... ," I ~...:>__ .. ___,_:::!"~./A.a. K. .0'/Hi C)y&. p.:;::::::::;;,CJ - COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION A TTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A SCOTT A. SANDERS, Appellee COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant NO. 04-5533 Civil Term Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicatl:d below, which service satisfies the requirements ofPa. R.A.P. 121: First Class Mail; Postage Pre-Pslid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Patrick F. Lauer, Jr., Esquire Att. for Appellee Sanders 2108 Market Street Camp Hill, P A 170 II G~,<./ni' ,-:>-'A~ DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: February 17, 2005 :",", , "", . < ::) '"'\"' ... t;;' <::> ~ ~ --W -.::J+- \) Y] -r'" *" <6 ~ ~ 0 -:s \ <;:> --r ~ r',) 3 <;:> ~ ~ - f;; -~ (' , . - ~ \ " o -:s "3 ~ :::> <:~ ~ p ,--.- ~ >--- o ~ ::.\- SCOTT A. SANDERS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 04-5533 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA, PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL IN RE: OPINION PURSUANT TO RULE 1925 On February 11,2005, this court sustained the appeal of Scott A. Sanders from a notice suspending his driver's license. The notice of driver's license suspension was triggered by virtue of his refusal to take a chemical test for blood alcohol on July 13,2004. The Commonwealth Department of Transportation has appealed our order sustaining Mr. Sanders's license suspension appeal. It is well established that a one-year driver's license suspension may be imposed for a motorist who I) was arrested for operating a vehicle while under the influence by a police officer who had reasonable grounds to believe that he was operating or 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 specifically warned that a refusal would result in the suspension of his operating or driving privilege. Banner v. Dept. of Transp.. Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999). This case presents the question of whether the police officer had reasonable grounds to believe that the defendant was operating a vehicle while under the influence of alcohol. A review of the facts is, of course, essentiaL (, :'.~ ::: I'. ," C \"'.'-j " j - NO. 04-5533 CIVIL On July 13,2004, Officer Daniel Hair of the West Shore Regional Police Department was operating a speed detail in the 300 block of South Third Street in the Borough of Lemoyne, Cumberland County, Pennsylvania. At 2:30 a.m., the officer timed the defendant's van traveling north on South Third Street at 38.7 miles per hour in a 25 mile-per- hour zone. After stopping the defendant and while conversing with him, the police officer noticed an odor of alcohol and glassy eyes. The defendant produced his driver's license and registration without difficulty and the officer noticed no impairment in Mr. Sanders's speech or dexterity. Mr. Sanders admitted that he had "a couple" of beers. The officer verified that he had consumed alcohol by administering the PBT. Mr. Sanders was asked to exit the vehicle which he did without difficulty and he walked to the rear of the vehicle without incident. Mr. Sanders was given instructions for the walk and turn test. During the instructions he stood still and did not sway. He took the requisite number of steps, counted out loud and walked along a three- or four-inch line marking a parking space. 1 The officer was concerned that not all of the steps were heel-to-toe but, at the hearing, agreed that such precision was not necessarily required. He did fault Mr. Sanders, however, for not taking enough small steps when he made the turn between the first and second set of nine steps. The officer did agree, however, that there were generally speaking no signs of impairment exhibited during the walk and turn. During the one-leg stand the defendant was able to raise one foot and did not put it down while he cOlmted from 100] to ] 030. While the officer I The defendant pulled over at the direction of the police officer into the parking lot of the Uni-Mart. He parked properly in one of the parking spaces of the convenience store. 2 NO. 04-5533 CIVIL observed Mr. Sanders sway between] I and 20 seconds, he agreed that such a sway on the one-leg stand would be normal even for a sober person. In the many cases we reviewed wherein a license suspension was upheld, the indicia were far greater in their support of the officer's conclusion that the defendant was operating while under the influence of alcohol. While most involve the observation of glassy eyes and an odor ofa]coho], other factors were also involved. See Stein v. Com. Dept. of Trnsp. Bureau of Licensing, 857 A.2d 719 (Pa.Cmwlth. 2004) (driver crossed double yellow line of highway and had slurred speech); Com. v. Robinson, 834 A.2d 1]60 (Pa.Super. 2003) (motorist staggered, did not walk straight line and could not raise leg for twenty seconds); Dudeck v. Com. Dept. of Transp. Bureau of Driver Licensing, 682 A.2d 1349 (Pa.Cmwlth. 1996) (erratic driving, slurred speech and motorist stumbled as he walked); Gasper v. Com. Dept. of Transp. Bureau of Driver Licensing, 674 A.2d 1200 (Pa.Cmwlth. ] 996) (difficu]ty in standing when exiting the vehicle, motorist stated that he knew he was drunk); Vinansky v. Com. Dept. of Transp. Bureau of Driver Licensing, 665 A.2d 860 (Pa.Cmwlth. ] 995) (motorist was unable to speak and needed assistance out of his truck); Mooney v. Com. Dept. of Transp. Bureau of Driver Licensing, 654 A.2d 47 (Pa.Cmwlth. 1994) (driver was involved in an accident, had unsteady walk and refused to perform sobriety tests); Com. Dept. of Transp. Bureau of Driver Licensing v. Martino, 639 A.2d 938 (Pa.Cmwlth. ] 994) (vehicle was operated in an erratic and swerving manner and defendant failed sobriety tests); Com. Dept. of Transp. Bureau of Driver Licensing v. McGrath, 617 A.2d 400 (Pa.Cmwlth. 1992) (motorist was involved in an apparent hit and run and was unsteady on his feet. 3 NO. 04-5533 CIVIL In our order of February 11,2005, we found that the circumstances of this case were not unlike those presented in Com. v. Dixon, 596 A.2d 286 (Pa.Cmwlth. 199]). In that case, however, the motorist, Dixon, was involved in an accident. The investigating officer noticed that Dixon's eyes were bloodshot. He then asked Dixon to step out of the car and perform field sobriety tests on the shoulder of the road. Dixon nearly fell when walking heel-to-toe and could balance on one leg for only seventeen seconds out of thirty. The officer described the shoulder of the road as consisting of gravel, stones and rocks, and described the traffic at the time as heavy. The Commonwealth Court agreed with the trial court that the officer did not have reasonable cause particularly given the conditions under which the sobriety tests were conducted and the absence of any evidence of "slurred speech, an unsteady gait or stance, and abusive or uncooperative behavior." Jd at 287. Unlike Dixon, the motorist, Sanders, performed well on the field sobriety tests2. In addition, in this case, there was no accident. :rlm ,Ii March f'f' ,2005 ~htrick Lauer, Esquire For the Appellant /' L~rge Kabusk, Esquire For PennDOT ( 2 While the officer purported to take "clues" from the field sobriety test that the defendant was under the influence, it is clear from the officer's cross-examination that this "scoring" was essentially illusory. 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott A. Sanders v. ~ ()/f- 56-33 ~ No. 407 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant Submitted: July 29, 2005 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: September 27,2005 The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Cumberland County (Trial Court) which sustained the appeal of Scott A. Sanders (Licensee) from DOT's one- year suspension of Licensee's operating privilege that had been imposed by DOT pursuant to Section 15471 of the Vehicle Code, 75 Pa.C.S. S1547. We reverse. I Section 1547(b)(1) of the Vehicle Code reads, in relevant part: (b) Suspension for refusa1.-- (1) If any person placed under arrest for a violation of section 3802 [relating to driving under the influence of alcohol] is requested to submit to chemical testing and refuses to do so, the testing shaH not be conducted but upon notice by the police officer, the department shaH suspend the operating privilege of the person as follows: (Continued.., .) At approximately 2:30 A.M. on July 13, 2004, Officer Daniel Hair of the West Shore Regional Police Department timed Licensee's van traveling 38.7 miles-per-hour in a 25 miles-per-hour speed zone. Officer Hair then effected a traffic stop of Licensee's van, and noticed while conversing therewith that Licensee had glassy eyes and an odor of alcohol about him. Upon request, Licensee produced his driver's license and registration, with no noticeable impairment in his speech or dexterity. In response to Officer Hair's mqUlry, Licensee admitted that he had consumed "a couple beers" that evening. Officer Hair then requested that Licensee exit his vehicle, walk to the rear thereof, and perform a Horizontal Gaze/HGN field sobriety test, with which Licensee complied. Next, Officer Hair administered a Walk and Turn field sobriety test, and a One-Legged Stand field sobriety test. Officer Hair next administered a Preliminary Breath Test (PBT)2 that produced a result of .10 percent blood alcohol level. (i) . . . for a period of 12 months. 2 Section 1547(k) ofthe Vehicle Code, 75 Pa.C.S. S I 547(k), provides that: A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) [mandating the license suspension of a driver who refuses to submit to a requested (Continued... .) 2. Officer Hair then placed Licensee under arrest for driving under the influence (DUI), and transported him to the West Shore Booking Center. Officer Hair then requested that Licensee submit to a chemical test, and read the proper Implied Consent warnings regarding the consequences of a refusal to do so contained within Form DL-26. Licensee refused to submit to the chemical test as requested. By official notice dated October 25, 2004, DOT notified Licensee that his driving privilege was being suspended for a period of one year pursuant to Section 1547, due to his refusal to submit to the chemical testing as requested. Licensee thereafter appealed DOT's suspension to the Trial Court, which held a hearing thereon. The Trial Court heard argument from both parties, as well as the testimony of Officer Hair. Licensee did not testify. By order dated February 11, 2005, the Trial Court sustained Licensee's appeal and vacated DOT's suspension. In its supporting opinion the Trial Court held, in relevant part, that Officer Hair did not have reasonable grounds to believe that Licensee was operating a vehicle while under the influence of alcohol. Among the evidence cited by the Trial Court in its analysis of whether reasonable grounds existed were Officer Hair's observation of Licensee's glassy eyes and odor of alcohol, Licensee's admission of having consumed a "couple" beers, and the positive PBT test results indicating that Licensee had consumed chemical test] and (e) [authorizing the admission into evidence of a licensee's test refusal in subsequent proceedings on charges of driving under the influence of alcohol or controlled substances]. 3. alcohol. Trial Court Opinion at 3. DOT now appeals to this Court from the Trial Court's order sustaining Licensee's appeal. This Court's standard of review of an appeal from a trial court1s address of an operating privilege suspension is limited to determining whether necessary findings of fact are supported by competent evidence of record, whether the trial court committed an error of law, or whether the trial court abused its discretion. Gasper v. Department of Transportation. Bureau of Driver Licensing, 674 A.2d 1200 (Pa. Cmwlth.), petition for allowance of appeal denied, 546 Pa. 666,685 A.2d 546 (1996). DOT asserts one issue on appeal: whether the Trial Court erred as a matter of law in concluding that Officer Hair did not have reasonable grounds to believe that Licensee was operating a vehicle while under the influence of alcohol, in violation of Section 3802 of the Vehicle Code, 75 Pa.C.S. S 3802.3 3 Section 3802 reads, in relevant part: Driving under influence of alcohol or controlled substance (a) General impairment.-- (1) An 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. (2) An 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 alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 4. In reviewing a DOT license suspension founded upon a licensee's refusal to submit to chemical testing, the test applied for determining whether a police officer had reasonable grounds to believe that the licensee was operating a motor vehicle while under the influence of alcohol is not very demanding. Reasonable grounds exist when a person in the officer's position, 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. Gasper. Whether a police officer had reasonable grounds to believe that a licensee was operating a motor vehicle while under the influence of alcohol is a question of law reviewable by this Court on a case-by-case basis. Id. In essence, DOT argues herein that the Trial Court erred in failing to vIew the totality of the circumstances surrounding Officer Hair's arrest of Licensee, did not view those circumstances through the perspective of a reasonable person, and ignored multiple uncontradicted facts of record that constitute reasonable grounds for Licensee's arrest. We agree. We need not address the bulk of the evidence cited by DOT, and we need not analyze whether or not the Trial Court found all of that evidence implicitly credible. The Trial Court acknowledged that Licensee admitted to having drunk a "couple" beers during the night in question, that Licensee's eyes were glassy, that Licensee smelled of an odor of alcohol at the time of Officer 5. Bair's arrest, and that prior to the actual arrest, Officer Bair verified that Licensee had consumed alcohol by administering the PBT.4 Trial Court Opinion at 2. These factors combined with the failure of the field sobriety tests, when viewed through the perspective of a reasonable person in Officer Bair's position under the facts of this case, constitute reasonable grounds to believe that Licensee was under the influence of alcohol while operating his vehicle. Accord Miller v. Department of Transportation, Bureau of Driver Licensing, 835 A.2d 866 (Pa. Cmwlth. 2003) (odor of alcohol, and licensee's admission that she had been drinking, constitute reasonable grounds to believe licensee was under the influence of alcohol while operating vehicle). Accordingly, we reverse the order of the Trial Court, and reinstate DOT's suspension of Licensee's operating privilege pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. ~1547. ~ .o~~", JAMES R. KELLEY, Senior Judge 4 The sole purpose of a PBT is to assist the officer in determining whether a driver has consumed alcohol and should therefore be placed under arrest, not whether the driver is actually intoxicated. Rvan v. Deoartment of Transoortation. Bureau of Driver Licensing, 823 A.2d ] ]0] (Pa. Cmwlth. 2003) (further citations omitted). We acknowledge that a licensee's refusal to perform a preliminary breath test cannot be the basis of a license suspension. Id. 6. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott A. Sanders v. No. 407 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 27th day of September, 2005, the order of the Court of Common Pleas of Cumberland County dated February 11, 2005, at No. 04- 5533, is reversed. ~, -0 )4P~~ JAMES R. KELLEY, Senior Judge Certnied from the Record SEP 2 7 Z005 and Order ExIt ~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott A. Sanders v. No. 407 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant Submitted: July 29, 2005 d1 64- OJ) 3 CM;L BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: September 27,2005 The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Cumberland County (Trial Court) which sustained the appeal of Scott A. Sanders (Licensee) from DOT's one- year suspension of Licensee's operating privilege that had been imposed by DOT pursuant to Section 15471 of the Vehicle Code, 75 Pa.C.S. S1547. We reverse. 1 Section 1547(b)(1) of the Vehicle Code reads, in relevant part: (b) Suspension for refusa1.-- (1) If any person placed under arrest for a violation of section 3802 [relating to driving under the influence of alcohol] 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 shan suspend the operating privilege of the person as fonows: (Continued... .) At approximately 2:30 A.M. on July 13, 2004, Officer Daniel Hair of the West Shore Regional Police Department timed Licensee's van traveling 38.7 mi1es-per-hour in a 25 mi1es-per-hour speed zone. Officer Hair then effected a traffic stop of Licensee's van, and noticed while conversing therewith that Licensee had glassy eyes and an odor of alcohol about him. Upon request, Licensee produced his driver's license and registration, with no noticeable impairment in his speech or dexterity. In response to Officer Hair's mqUlry, Licensee admitted that he had consumed "a couple beers" that evening. Officer Hair then requested that Licensee exit his vehicle, walk to the rear thereof, and perform a Horizontal Gaze/HGN field sobriety test, with which Licensee complied. Next, Officer Hair administered a Walk and Turn field sobriety test, and a One-Legged Stand field sobriety test. Officer Hair next administered a Preliminary Breath Test (PBT)2 that produced a result of .1 0 percent blood alcoholleve!. (i) . . . for a period of]2 months. 2 Section 1547(k) of the Vehicle Code, 75 Pa.C.S. 9 l547(k), provides that: A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) [mandating the license suspension of a driver who refuses to submit to a requested (Continued... .) 2. \ Officer Hair then placed Licensee under arrest for driving under the influence (DUI), and transported him to the West Shore Booking Center. Officer Hair then requested that Licensee submit to a chemical test, and read the proper Implied Consent warnings regarding the consequences of a refusal to do so contained within Form DL-26. Licensee refused to submit to the chemical test as requested. By official notice dated October 25, 2004, DOT notified Licensee that his driving privilege was being suspended for a period of one year pursuant to Section 1547, due to his refusal to submit to the chemical testing as requested. Licensee thereafter appealed DOT's suspension to the Trial Court, which held a hearing thereon. The Trial Court heard argument from both parties, as well as the testimony of Officer Hair. Licensee did not testify. By order dated February 11, 2005, the Trial Court sustained Licensee's appeal and vacated DOT's suspension. In its supporting opinion the Trial Court held, in relevant part, that Officer Hair did not have reasonable grounds to believe that Licensee was operating a vehicle while under the influence of alcohol. Among the evidence cited by the Trial Court in its analysis of whether reasonable grounds existed were Officer Hair's observation of Licensee's glassy eyes and odor of alcohol, Licensee's admission of having consumed a "couple" beers, and the positive PBT test results indicating that Licensee had consumed chemical test] and (e) [authorizing the admission into evidence of a licensee's test refusal in subsequent proceedings on charges of driving under the influence of alcohol or controlled substances]. 3. alcohol. Trial Court Opinion at 3. DOT now appeals to this Court from the Trial Court's order sustaining Licensee's appeal. This Court's standard of review of an appeal from a trial court1s address of an operating privilege suspension is limited to determining whether necessary findings of fact are supported by competent evidence of record, whether the trial court conunitted an error of law, or whether the trial court abused its discretion. Gasper v. Department of Transportation. Bureau of Driver Licensing. 674 A.2d 1200 (Pa. Cmwlth.), petition for allowance of appeal denied, 546 Pa. 666,685 A.2d 546 (1996). DOT asserts one issue on appeal: whether the Trial Court erred as a matter of law in concluding that Officer Hair did not have reasonable grounds to believe that Licensee was operating a vehicle while under the influence of alcohol, in violation of Section 3802 ofthe Vehicle Code, 75 Pa.C.S. 93802.3 3 Section 3802 reads, in relevant part: Driving under influence of alcohol or controlled substance (a) General impairment.-- (1) An 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 ofthe vehicle. (2) An 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 alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 4. '. In reviewing a DOT license suspension founded upon a licensee's refusal to submit to chemical testing, the test applied for determining whether a police officer had reasonable grounds to believe that the licensee was operating a motor vehicle while under the influence of alcohol is not very demanding. Reasonable grounds exist when a person in the officer's position, 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 Gasper. Whether a police officer had reasonable grounds to believe that a licensee was operating a motor vehicle while under the influence of alcohol is a question of law reviewable by this Court on a case-by-case basis. Id. In essence, DOT argues herein that the Trial Court erred in failing to vIew the totality of the circumstances surrounding Officer Hair's arrest of Licensee, did not view those circumstances through the perspective of a reasonable person, and ignored multiple uncontradicted facts of record that constitute reasonable grounds for Licensee's arrest. We agree. We need not address the bulk of the evidence cited by DOT, and we need not analyze whether or not the Trial Court found all of that evidence implicitly credible. The Trial Court acknowledged that Licensee admitted to having drunk a "couple" beers during the night in question, that Licensee's eyes were glassy, that Licensee smelled of an odor of alcohol at the time of Officer 5. Hair's arrest, and that prior to the actual arrest, Officer Hair verified that Licensee had consumed alcohol by administering the PBT.4 Trial Court Opinion at 2. These factors combined with the failure of the field sobriety tests, when viewed through the perspective of a reasonable person in Officer Hair's position under the facts of this case, constitute reasonable grounds to believe that Licensee was under the influence of alcohol while operating his vehicle. Accord Miller v. Department of Transportation, Bureau of Driver Licensing, 835 A.2d 866 (Pa. Cmwlth. 2003) (odor of alcohol, and licensee's admission that she had been drinking, constitute reasonable grounds to believe licensee was under the influence of alcohol while operating vehicle). Accordingly, we reverse the order of the Trial Court, and reinstate DOT's suspension of Licensee's operating privilege pursuant to Section 1547 of the Vehicle Code, 75 Pa.C.S. S1547. JAMES R. KELLEY, Senior Judge 4 The sole purpose of a PBT is to assist the officer in determining whether a driver has consumed alcohol and should therefore be placed under arrest, not whether the driver is actually intoxicated. Ryan v. Department of Transportation. Bureau of Driver Licensing, 823 A.2d 1 ]0] (Pa. Cmwlth. 2003) (further citations omitted). We acknowledge that a licensee's refusal to perform a preliminary breath test cannot be the basis of a license suspension. Id. 6. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Scott A. Sanders v. No. 407 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 27th day of September, 2005, the order of the Court of Common Pleas of Cumberland County dated February II, 2005, at No. 04- 5533, is reversed. ~, {/ )<..U~ JAMES R. KELLEY, Senior Judge C-:--i i r.