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HomeMy WebLinkAbout2004-5533 Civil 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 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 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. 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.l 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 counted from 1001 to 1030. While the officer 1 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 11 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 of alcohol, 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 1160 (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. ofTransp. Bureau of Driver Licensing, 674 A.2d 1200 (Pa.Cmwlth. 1996) (difficulty 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. 1995) (motorist was unable to speak and needed assistance out of his truck); Mooney v. Com. Dept. ofTransp. 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. 1994) (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. 1991). 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." Id at 287. Unlike Dixon, the motorist, Sanders, performed well on the field sobriety tests2. In addition, in this case, there was no accident. March ,2005 Kevin A. Hess, 1. Patrick Lauer, Esquire F or the Appellant George Kabusk, Esquire For PennDOT :rlm 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