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HomeMy WebLinkAbout97-6273 civilCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING : : : V. : : : DALE STANLEY BARBER : NO. 97-6273 CIVIL : : CIVIL ACTION - LAW IN RE: PETITION FOR STAY PENDING LICENSE SUSPENSION APPEAL ,MEMORANDUM OPINION AND ORDER OF COURT BEFORE GUIDO, J. Appellant has asked this Court to stay his driver's license suspension pending his appeal to the Commonwealth Court of our order dated January 26, 1998. We have reviewed the cases cited by appellant, specifically Pa. Public Utility Commission v. process Gas Consumers, 502 Pa. 545, 467 A.2d 805 [1983] and .Dipaolo v. D.O.T., Pa. Commw. , 700 A.2d 569 [1997]. For reasons that will be set forth more fully in our opinion to be filed pursuant to Pa.. Rule of Appellate procedure 1925, this case is distinguishable in many respects from Dipaolo. There was much more evidence of driving under the influence in this case than was present in Dipaolo. We also take exception with appellant's assertion that the testimony indicates that he successfully completed the field sobriety tests. While there was no testimony to indicate that he failed those tests, there was testimony to indicate that he performed poorly on those tests. The only reason that the officer did not testify that appellant failed the tests was that NO. 97-6273 CIVIL he was not trained to administer those tests. There was, however, absolutely no testimony whatsoever to indicate that the appellant passed the field sobriety tests. Therefore, on that ground alone, Dipaolo can be distinguished. Furthermore, we do not feel that appellant would be entitled to a supersedeas under the principals of Processed Gas, supra. Refer to footnote 9 in Commonwealth v. Wolf 534 Pa. 283 632 A.2d 864 (1993). Therefore, appellant's petition for stay of his operating privileges pending appeal is DENIED. ORDER AND NOW, this / ~'~ day of MARCH, 1998, upon consideration of appellant's petition for stay of suspension of his operating privileges pending appeal, said stay is DENIED. By ' Edward E. Guido, J. Commonwealth of Pa. Dept. of Transportation Patrick F. Lauer, Jr., Esquire For the Defendant :sld COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEP/~TMENT OF TRg~SPORTATION, : CUMBERED COUNTY, PENNSYLVgaNIA BUREAU OF LICENSING : V. : DALE BARBER' : NO. 97-6273 CIVIL TERM : IN RE: OPINION PURSUANT TO RULE 1925 On October 29, 1997, the Commonwealth Department of Transportation sent Appellant notice that his driving privileges would be suspended as a result of his refusal to submit to a chemical test of his blood on September 27, 1997, in violation of Section 1547 of the Vehicle Code. 75 Pa.C.S.A. § 1547. The suspension was to be effective December 3, 1997. On November 18, 1997, Appellant filed a timely appeal to this Court and a supersedeas was granted. A hearing was held before us on January 26, 1998. After hearing, the appeal was dismissed and the license suspension was affirmed. Appellant filed a timely notice of appeal to the Commonwealth Court. On March 2, 1998, Appellant filed a concise statement of matters complained of on appeal. This opinion is written pursuant to Pa. Rule of Appellate Procedure 1925. FINDINGS OF FACT ,, 1) On September 27, 1997, at approximately 2: 15 a.m. Officers Hair and Ambrose of the West Shore Regional Police Department witnessed Appellant driving his pick up truck at a high rate of speed. (N.T. 5). 2) They proceeded to follow the Appellant and saw him run two red lights. (N.T. 5). NO. 97-6273 CIVIL 3) Appellant crossed over the center line at the intersection. · (N.T. 5). 4) The Officers activated their flashing lights and after a period of time the Appellant pulled over. (N.T. 5). 5) In the course of speaking to the Appellant, Officer Hair detected the odor of alcohol on his breath. (N.T. 6). In addition, Appellant's speech was slurred. (N.T. 14) . 6) Appellant admitted to drinking "a couple of beers". (N.T. 6). 7) Appellant fumbled through his wallet looking for his drivers license. He passed it several times before finally producing it. (N.T. 5-6). 8) Officer Hair asked Appellant to step from the vehicle and turned him Over to Officer Ambrose so that field sobriety tests could be administered. ~ (N. T. 6 ) . 9) Appellant swayed during the field sobriety tests. (N.T. 6) 10) Appellant missed heel to toe several times during the performance of the walk and turn test.2 (N.T. 7). 11) After conferring with Officer Ambrose, Officer Hair placed ~Officer Hair was neither trained nor certified to administer field sobriety tests. Therefore, they were administered by Officer Ambrose. 2The Court cannot find as a fact that Appellant failed the field sobriety tests because findings of fact 9 and 10 were based upon the observations of Officer Hair who was not certified to administer those tests. However, neither can the Court find as a fact that Appellant passed the tests. For whatever reason, neither party called Officer Ambrose as a witness. NO. 97-6273 CIVIL Appellant under arrest for driving under the influence. (N.T. 8). 12) Appellant was read the "Section 1547 - Chemical Test Warnings" appearing on Penn D.O.T. form DL-26, which specifically advised him that his license would be suspended for one year if he refused to submit to chemical testing of his blood. (N.T. 9 & Commonwealth Exhibit 1) . 13) Appellant was asked to submit to a blood test, which he refused. 14) Appellant was transported to the booking center and given the opportunity to submit to a breath test. (N.T. 10). 15) At the booking center, he was again read the "Section 1547 - Chemical Test Warnings" before he was afforded the opportunity to submit to a breathalyzer test. (N.T. 10-11). 16) Appellant refused to take the breath test at the booking center. (N.T. 11). DISCUSSION To sustain a license suspension under Section 1547 of the Vehicle Code (75 Pa.C.$.A. ~ 1547), the Department of Transportation has the burden of establishing the following four elements: 1) . The motorist was arrested for driving under the influence by a police officer who had reasonable grounds to believe that he was operating the vehicle while under the influence of alcohol. 2) The motorist was asked to submit to a chemical test. 3) The motorist refused to do so. NO. 97-6273 CIVIL 4) The motorist was warned that refusing the test would result in a license suspension. See Vinansky v. Commonwealth Dept. of Transportation, 665 A.2d 860 (Pa. Commw. Ct. 1995). In the instant case, Appellant challenges the Department's evidence only in connection with the first element. He contends that the arresting Officer did not have reasonable grounds to believe that Appellant was under the influence of alcohol. The test for "reasonable grounds" was set forth in Department of Transportation v. Dreisbach, 26 Pa. Commw. 201, 363 A.2d 870 (1976). As the Court stated [F]or 'reasonable grounds' to exist, the police officer obviously need not be correct in his belief that the motorist had been driving while intoxicated. We are dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such a test. The only valid inquiry on this issue at the de novo hearing is whether, viewing the facts and circumstances as they appear at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle and under the influence of intoxicating liquor. 26 Pa. Commw. at 204-205. Appellant relies on the Commonwealth Court's recent decision in DiPaolo v. Com. Dept. of Transportation, 700 A.2d 569 (Pa. Commw. Ct. 1997). However, since this case is clearly distinguishable, his reliance is misplaced. In DiPaolo there was no evidence of unsafe or erratic driving, nor was there any evidence of slurred speech or swaying. In addition, the lower court found as a fact that Mr. DiPaolo had passed the field sobriety tests. Therefore, the only evidence provided by D.O.T. NO. 97-6273 CIVIL to sustain the DiPaolo officer's "reasonable grounds" was the odor of alcohol. In the instant case, Officer Hair observed erratic driving,~ slurred speech, and the odor of alcohol. He also witnessed Appellant fumbling through his wallet, swaying and performing poorly on the field sobriety tests. As noted above, since Officer Hair was not certified to administer field sobriety tests, we are not prepared to conclude, based solely upon his observations of poor performance, that Appellant failed those tests. However, this certainly does not mean that Appellant passed those tests.~ The field sobriety tests did not play a role in our decision that the Officer had reasonable grounds to conclude that Appellant was driving while under the influence of alcohol.~ Based upon the numerous other indications of intoxication established in the record, it is abundantly clear that the Officer had reasonable grounds to believe that Appellant was driving while intoxicated. Not only were the ~Officer's actions reasonable, but to have done anything differently would have amounted to a dereliction of duty. ~As noted above, Appellant was driving at a high rate of Speed, ran two red lights, and crossed the center line. ~Although the Dept. of Transportation chose not to have Officer Ambrose testify, this did not preclude Appellant's counsel from calling him as a witness. ~Even the DiPaolo court recognized that "[i]t is not necessary for a motorist to fail a field sobriety test in order for a police officer to have reasonable grounds." (citation omitted) 700 A.2d at 572. NO. 97-6273 CIVIL March 25, 1998 By the Court, Edward E. Guido, J. George H. Pa. Dept. Kabusk, Esquire of Transportation Jeanne B. Wigbels, For the Defendant Esquire :sld