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HomeMy WebLinkAbout01-264 civilSTEPHEN M. SYMONS VS. COMMONWEALTH OF PA., ' DEPT. OF TRANSPORTATION, ' BUREAU OF DRIVER ' LICENSING ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-264 CIVIL CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL IN RE: OPINION PURSUANT TO RULE 1925_ This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing from our order of April 3,2001. The order vacated a suspension of the driver' s license of petitioner, Stephen M. Symons. The matter complained of on appeal is as follows: The trial court errs as a matter of law when it held that the arresting officer did not have reasonable grounds to request that Appellee Symons submit to a blood test after Appellee Symons submitted to a breath test and provided a sample that yielded a blood alcohol content (BAC) of 0.01% where: a. the officer observed that Symons was visibly impaired by some substance; b. the officer found a receipt for a prescription drug, dated the same day, in Symons motor vehicle; c. Symons was involved in a single-car crash; d. in the officer's opinion Symons's BAC of 0.01 % did not account for the level of impairment that the officer observed upon Symons; and e. the arresting officer fully informed Appellee Symons of his suspicions and the reason why the officer wanted Symons to submit to the blood test. 01-0264 CIVIL The license suspension arose out of incidents that occurred on November 1, 2000. Corporal Collin H. Hepford, Jr. of the Lower Allen Township Police responded to the scene of an accident involving an automobile that had driven into a ditch. The operator, Mr. Symons, was still behind the wheel. The police officer assisted Mr. Symons in exiting his car. The officer noticed that Mr. Symons was, though well dressed, somewhat disheveled. He had a stagger in his walk and his eyes were bloodshot and watery. The officer was able to detect an odor of an alcoholic beverage on his breath. He described Mr. Symons's speech as "mushy. [I]t all blended together at times." Mr. Symons indicated to the officer that he was coming from the Maverick Steakhouse in Harrisburg and was en route to his home in Bowmansdale. The officer realized that the accident scene was not appropriate to that route of travel. On the walk-and-turn test, the defendant took too many steps, missed the heel-to-toe and was off the line. The one-leg stand was not attempted. Mr. Symons was then taken to the booking center and Cpl. Hepford returned to the scene. The officer found some prescription instruction sheets in the car though he found no medication. There was a receipt for a prescription in the amount of $61.77. The officer also discovered an advisory leaflet from The Medicine Shoppe for a drug called Ambien. While waiting at the scene for a tow truck, Officer Hepford received a telephone call on his cell phone advising him that Mr. Symons blood-alcohol registered at an extremely low .018 percent. Officer Hepford returned to the booking center where he explained to Mr. Symons that, given the low blood-alcohol reading and his observations, the officer felt that Mr. Symons was being affected by some type of medication or controlled substance. He was therefore asked to go to the hospital for a blood test. Symons responded that he was tired, "it was too late, and he didn't 01-0264 CIVIL want to go to the hospital." Mr. Symons eventually signed a form to the effect that he was refusing a blood test. At the hearing held in this case, Officer Hepford testified that he found no drugs or drug containers in the car. He also indicated that, during his encounter with Mr. Symons, he did not know what Ambien was nor did he know whether or not it was a controlled substance under the Drug, Device and Cosmetic Act. He indicated, further, that Mr. Symons had explained the accident by saying that he had fallen asleep. It is the rule in Pennsylvania that, if more than one chemical test is requested by a police officer, "the police officer must offer sufficient evidence to establish the 'reasonableness' of such a request." Dept. of Transp. v. MCFarren, 514 Pa. 411, 418, 525 A.2d 1185, 1188 (1987). We are satisfied that the Department's arguments about reasonableness in this case are constructed upon a foundation which is fundamentally flawed. This is evidenced by the argument at the conclusion of our hearing. Portions of the argument consisted of the following exchanges: MR. EDWARDS' Your Honor, it must be kept in mind that the standard here is not probable cause to arrest, it is reasonable grounds, which both the Pennsylvania Supreme Court and Commonwealth Court have held as a lower standard, and it's the reasonable grounds on the part of the police officer who requests the test that counts. And we submit in this case, ... that he had more than ample reasonable grounds to believe that there was something here. And this is a case about-- not controlled substances ..... We are not contending he was taking controlled substances. We don't know what he was taking. 01-0264 CIVIL N.T., pp. 46-48. Cpl. Hepford finds these drugs. He reads on there you are not supposed to drive, especially don't drive and take alcohol with them. And that together with his own experience ... gave him more than ample grounds to believe that he was under the influence of something other than alcohol. THE COURT' Is it unlawful to operate a vehicle while under the influence of alcohol and some over-the-counter medication? MR. EDWARDS: Yes, Your Honor, it is. We have reviewcd 75 Pa.C.S.A. 3731 dealing with driving under the influence. We are unable to find any support for the argument advanced by the Department. To the contrary, all references to being under the influence of anything other than alcohol are to controlled substances. We are satisfied that this case is controlled by the holding in Com., Dept. of Transp., Bur. of Driver Licensing v. Penich, 112 Pa. Cmmwlth. 303,535 A.2d 296 (1988). In that case, unlike this one, the court held that the record was "devoid of any testimony of the police officer indicating the specific type of behavior on the part of Licensee that led to the police officer's suspicion.''~ Not only germane but also, we believe, controlling in this case is the observation of the Commonwealth Court which followed: Furthermore, there is ... no testimony indicating that the officer suspected that the tablets found on ~ We do not get the impression that the outcome of Penich depended entirely on this observation as it had been stipulated in that case that the police officer, as in the matter sub judice, had "reasonable grounds to believe licensee was driving under the influence." Id.__~. at 307, 535 A.2d at 299. 01-0264 CIVIL Licensee's person were controlled substances, but merely a prescription drug. Rather, it appears that the police officer, having failed through the two breath tests to acquire enough evidence to raise an inference of Licensee's driving in violation of Section 3731 (a)(4) of the Code, was seeking to "enhance the evidence and guarantee a conviction," precisely the sort of conduct proscribed by our Supreme Court. Penich, 112 Pa. Cmmwlth. 303,307-308, 535 A.2d 296, 299. We believe it is the law that the police officer must have reasonable grounds to believe that the defendant is operating a vehicle under the influence of a controlled substance, and not merely some sort of medication, and that there was no such reasonable grounds in this particular case. We conclude that the suspension of Mr. Symons's license, for his refusal to take a blood test, was improper. June ! ff' * , 2001 David Hershey, Esquire For the Petitioner ,J. Timothy P. Wile, Esquire For pennDOT :rim