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HomeMy WebLinkAbout98-6429 civilNICHOLAS S. JAMES COMMONWEALTH OF PENNSLYVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVERS LICENSING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6429 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 9, 1999:-- The Department of Transportation suspended the driving privilege of petitioner Nicholas S. James for one year pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547, for the refusal to submit to a chemical test following an arrest for driving under the influence of alcohol. A hearing on petitioner's appeal from the suspension was conducted on June 7, 1999. We find the following facts. At 2:35 a.m., on September 27, 1998, Officer Robert Ressler of the West Shore Regional Police Department saw petitioner driving fast on Market Street in the Borough of Lemoyne. The officer got behind petitioner who turned left onto Third Street. Petitioner proceeded straight through a green light at the intersection of Hummel Street but did so in the left turn lane. The officer was only able to clock petitioner for two tenths of a mile at 41 miles per hour in a 25 mile per hour zone. Petitioner proceeded 98-6429 CIVIL TERM straight through a green light at the intersection of Louther Street again in the left hand turn lane. Officer Ressler initiated a traffic stop and petitioner stopped his vehicle with the right side wheels on a curb. Petitioner produced his cards with some difficulty and the officer noticed that his eyes were slightly glassy and bloodshot. Officer Ressler smelled a strong odor of alcohol and asked petitioner if he had been drinking. Petitioner said he had four beers. The officer had petitioner perform field sobriety tests. Petitioner failed the walk-and-turn test. He stopped doing the one-leg stand test in the middle and he refused to continue. Officer Ressler was of the opinion that petitioner was under the influence of alcohol to a degree that rendered him incapable of safe driving and he arrested him for driving under the influence. He placed petitioner in his police car and read him the implied consent law after which petitioner said he was not taking a test. The officer took petitioner to a booking center where he again read petitioner the implied consent law. Petitioner again refused to take a test. Petitioner makes one argument, citing a criminal case that arose in this court, Commonwealth v. Whitmyer, 542 Pa. 545 (1995), that there was no legal basis for Officer Ressler to stop him; therefore, the subsequent administrative suspension of his driving privileges for refusal to submit to a test of his blood alcohol content was invalid. This exact issue was raised and rejected by the Supreme Court of Pennsylvania in Commonwealth of Pennsylvania, Department of Transportation v. Wysocki, 517 Pa. 175 (1987). In Wysocki, defendant, who refused to submit to a chemical test following his arrest for driving under the influence, maintained that his arrest was tainted -2- 98-6429 CIVIL TERM by an illegal stop during an unconstitutional roadblock. The Supreme Court of Pennsylvania concluded: We need not here consider the appellant's assertion that the police roadblock was unconstitutional, because that question has no bearing on the resolution of this case. This Court, in interpreting the predecessor of section 1547, held that the term 'arrest' as employed in that statute merely referred to the physical act of arrest. Glass v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768 (1975). Thus, for purposes of a license suspension proceeding for refusal to submit to a breathalyzer test, the legality of the arrest was immaterial. We see no reason why a different result should obtain under the present statute, which constitutes the use of the term 'arrest.' (Footnote omitted.) In DiPaolo v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Commw. 1997), the Commonwealth Court of Pennsylvania, citing Wysocki, stated that "DOT is correct that the validity of a motorist's criminal arrest for driving under the influence of alcohol does not affect DOT's authority to suspend a driver's license for refusal to submit to chemical testing." The Court stated: To sustain a license suspension under Section 1547 of the Vehicle Code, it is DOT's burden to establish the following: (1) the motorist was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol or a controlled substance; (2) the motorist was asked to submit to a chemical test; (3) he or she refused to do so; and (4) the motorist was warned that refusing the test would result in a license suspension. Vinansky v. Commonwealth Department of Transportation, 665 A.2d 860 (Pa. Cmwlth. 1995). (Footnote omitted). -3- 98-6429 CIVIL TERM The test to determine whether a police officer has reasonable grounds to conclude that a motorist operated a vehicle under the influence is not very demanding. Department of Transportation, Bureau of Driver Licensing v. Johnson, 102 Pa. Cmwlth. 302, 518 A.2d 8 (1986). In Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Cmwlth. 201,363 A.2d 870 (1976), we set forth the reasonable grounds test: [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 appeared 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. Based on our findings of facts, we conclude that the Department of Transportation has established the four requirements necessary to uphold its suspension of petitioner's driving privileges for failing to submit to a test of the alcohol content of his blood. As the Supreme Court of Pennsylvania concluded in Wysocki, we need not here consider petitioner's assertion that Officer Ressler did not have a legal basis for stopping his vehicle on the night of September 27, 1998. Accordingly, the following order is entered. AND NOW, this ORDER OF COURT day of June, 1999, the appeal of Nicholas S. James from the suspension of his driving privilege for a period of one year, IS DISMISSED. -4- 98-6429 CIVIL TERM George H. Kabusk, Esquire For the Department of Transportation Edgar B. Bayi'e~/,~. John M. Glace, Esquire For Petitioner :saa -5-