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HomeMy WebLinkAbout2011-362 BRUCE K. MASHTARE, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION – LAW : NO. 11-362 COMMONWEALTH OF PA., : DEPT. OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : APPEAL OF OPERATOR’S LICENSE Appellee : SUSPENSION IN RE: APPEAL OF OPERATOR’S LICENSE SUSPENSION ORDER th AND NOW, this 20 day of May, 2011, upon consideration of the within APPEAL OF OPERATOR’S LICENSE SUSPENSION, and following hearing, it is hereby ordered that the within appeal from suspension of operator’s license is DENIED. BY THE COURT, __________________ Kevin A. Hess, P.J. Patrick F. Lauer, Jr., Esquire For Appellant Philip M. Bricknell, Esquire For PennDOT :rlm BRUCE K. MASHTARE, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION – LAW : NO. 11-362 COMMONWEALTH OF PA., : DEPT. OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : APPEAL OF OPERATOR’S LICENSE Appellee : SUSPENSION IN RE: APPEAL OF OPERATOR’S LICENSE SUSPENSION OPINION and ORDER HESS, P.J., May , 2011. Appellant, Bruce K. Mashtare, has appealed a license suspension imposed upon him by the Department of Transportation, Bureau of Driver Licensing for a violation of Section 1547(b)(1)(ii) of the Vehicle Code, the Implied Consent Law. On January 28, 2011, we ordered a hearing to be held in the above-captioned matter, and granted a supersedeas pursuant to Vehicle Code Section 1550(b)(1). The facts of this matter may be summarized as follows. Appellant, Bruce K. Mashtare, was arrested on November 24, 2010, for Driving Under the Influence by Corporal James Patterson of the Middlesex Township Police Department. On that date, Cpl. Patterson was on patrol when he began to follow the vehicle that Appellant was driving. (In Re: Transcript of Proceedings, 7, May 5, 2011 (hereinafter “T.P. __”)). Cpl. Patterson initiated a traffic stop after observing that Appellant’s vehicle was traveling at a speed varying between the forty-five mile per hour posted speed limit and a speed of up to fifty-seven miles per hour, as measured by the Corporal’s vehicle speedometer. (T.P. 7). Cpl. Patterson also testified that he witnessed the vehicle “go over onto the double yellow line,” as well as “on two separate occasions he drifted across the fog white line.” (T.P. 7). 2 After Cpl. Patterson initiated the stop, he approached the vehicle and spoke with Appellant. (T.P. 8). Cpl. Patterson requested Appellant’s driver’s license, registration, and proof of insurance; however, Appellant was only able to provide his driver’s license. (T.P. 8). Cpl. Patterson repeated his request for the registration and proof of insurance, and, after Appellant briefly searched through the glove box, Cpl. Patterson received only a blank stare in return. (T.P. 8). Cpl. Patterson testified that while he was speaking with Appellant, he observed that Appellant’s eyes were bloodshot and glassy and that his speech seemed slurred. (T.P. 9). Cpl. Patterson also testified that there was a strong odor of alcohol emanating from his breath. (T.P. 9). Based on this information, Cpl. Patterson asked Appellant to exit his vehicle and step to the rear of the car in between the vehicle and the patrol car. (T.P. 9). Cpl. Patterson testified that as Appellant walked to the rear of the vehicle, he “kept his left-hand on his car while walking back and still had problems maintaining his balance.” (T.P. 9). The Corporal. also testified that while he spoke with Appellant, he appeared to sway while standing in place. (T.P 9-10). He testified that he requested Appellant to submit to a portable breath test, but Appellant informed him that “there is no reason for me to take the test. I will be way over and arrested for DUI.” (T.P. 10). Based on the foregoing, Cpl. Patterson formed the opinion that “as a trained and experienced police officer … Mr. Mashtare was under the influence of alcohol to a degree that rendered him incapable of safe operation of a motor vehicle.” (T.P. 11). As a result, Cpl. Patterson took Appellant into custody and placed him in the rear seat of the patrol car. (T.P. 11). Appellant was then taken to the booking center where he was asked to submit to a chemical test of blood. (T.P. 12). At the hearing, Appellee played for the court a video recording of the Appellant and the interaction which took place at the booking center which led 3 to the purported refusal of Appellant to submit to the chemical test. The video shows Cpl. Patterson read to Appellant the following instruction from the Form DL-26: It is my duty as a police officer to inform you of the following: 1.You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code. 2.I am requesting that you submit to a chemical test of blood. 3.If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000. 4.You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a chemical test, you will have refused the test, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. (Hearing, May 5, 2011, State’s Ex. 2). Following this instruction, Cpl. Patterson asked the following of Appellant, “Are you willing to give me a blood test? A blood sample?” (Hearing, May 5, 2011, State’s Ex. 2). Appellant responded by informing Cpl. Patterson that he “did not understand everything you just said.” (Hearing, May 5, 2011, State’s Ex. 2). This statement prompted an approximately 6 minute dialogue between Cpl. Patterson and Appellant wherein Cpl. Patterson attempted to re- explain the chemical test warnings. Repeatedly, and throughout the dialogue, Cpl. Patterson asked Appellant if he would submit to the chemical test. Each request was met by more requests 4 to further explain the chemical test warnings. Cpl. Patterson obliged for a time and further attempted to explain the warnings. Finally, the following dialogue took place: Cpl. Patterson: In the next ten seconds I need to know whether you’re going to give me a blood sample. Appellant: Wow, you’re really pushing that on me. Cpl. Patterson: I have to. I have two very busy people here, and I have to keep moving also. Appellant: That’s a lot of stuff you’re telling me. Cpl. Patterson: I understand that. Are you going to give me a blood sample? Appellant: (indiscernible) . . . . Cpl. Patterson: At this point in time it is deemed as a refusal. (Hearing, May 5, 2011, State’s Ex. 2). As a result of the deemed refusal, a license suspension was imposed by the Bureau of Driver Licensing for a violation of Section 1547(b)(1)(ii) of the Vehicle Code, which suspension is the subject of this appeal. Cpl. Patterson was cross-examined by counsel for Appellant at our hearing. No other witnesses testified, and the only other exhibit entered was State’s Exhibit 1, which contained paperwork from PennDOT which documented Appellant’s license suspension and his driving history. (Hearing, May 5, 2011, State’s Ex. 1). Pennsylvania’s Implied Consent law is set forth in Section 1547 of the Vehicle Code. 75 Pa.C.S. §1547(b)(1)(ii) provides in pertinent part as follows: (b) Suspension for refusal.-- (1) If any person placed under arrest for a violation of section 3802 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 shall suspend the operating privilege of the person as follows: . . . (ii) For a period of 18 months if any of the following apply: 5 (A) The person's operating privileges have previously been suspended under this subsection. (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802; (II) an offense under former section 3731; (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a combination of the offenses set forth in this clause. 75 Pa.C.S. §1547. In order to sustain a suspension of operating privileges under Section 1547, the Department of Transportation must establish that the licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was 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 warned that refusal might result in a license suspension. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999); see also Kollar v. Com., Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). Once DOT has met this burden, the burden then shifts to the licensee who must establish that the refusal was not knowing or conscious or that the licensee was physically unable to take the test. Kollar, 7 A.3d at 339; see also Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996). The determination of whether a licensee was able to make a knowing and conscious refusal is a factual determination which is to be made by the trial court. Kollar, 7 A.3d at 340; see also Barbour v. Department of Transportation, Bureau of Driver Licensing, 557 Pa. 189, 732 A.2d 1157 (1999). 6 As noted above, the Department of Transportation has the initial burden of first establishing that the licensee was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol. Kollar, 7 A.3d at 339. The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Banner, 737 A.2d at 1207 (citing Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995). Rather, “[r]easonable 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.” Id. (citing DiPaolo v. Department of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Cmwlth. 1997)). Based on the testimony of Cpl. Patterson, we are satisfied that a person in the position of Cpl. Patterson could have concluded that Appellant was operating his vehicle while under the influence of intoxicating liquor. The officer testified that Appellant’s speed varied between the posted speed limit and up to 12 miles per hour over the posted speed limit. Mr. Mashtare had bloodshot and glassy eyes and slurred speech. There was a strong odor of alcohol emanating from Appellant’s breath. Furthermore, Appellant displayed an inability to retrieve his vehicle registration and proof of insurance. The dialogue he had with Appellant at the rear of the vehicle also provided reasonable grounds to conclude that Appellant was operating his vehicle while under the influence of intoxicating liquor. DOT must also establish that the licensee was asked to submit to a chemical test. Cpl. Patterson clearly and unequivocally asked Appellant multiple times to submit to a chemical test 7 of blood, first by reading the Form DL-26, and then throughout the dialogue which followed. (See Hearing, May 5, 2011, State’s Ex. 2). DOT also has the burden is to establish that the licensee was warned that refusal might result in a license suspension. Elsewhere in the case law the requirement has been phrased as the licensee must be “specifically warned” that the refusal might result in a license suspension. See Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385, 388 (Pa. Cmwlth. 2009). In order to satisfy the specific warning requirement, “a precisely enunciated will be warning that a driver's license revoked must be given.” Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 18 (Pa. Cmwlth. 2010) (citing Thoman, 965 A.2d at 388) (emphasis original). Clearly and unequivocally, Cpl. Patterson read the following excerpt from the Form DL-26 to Appellant: your operating privilege will be If you refuse to submit to the chemical test, suspended for at least 12 months. If you previously refused a chemical test or you will be suspended were previously convicted of driving under the influence, for up to 18 months. In addition, if you refuse to submit to the chemical test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum find of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000. (Hearing, May 5, 2011, State’s Ex. 2) (emphasis added). Thus, he precisely enunciated the warning to Appellant, that if he were to refuse to submit to the chemical test, his driver’s license would be suspended. Finally, the Department must establish that Appellant did, in fact, refuse to submit to the chemical test. In proving whether a licensee refused to submit to the chemical testing, “DOT has the burden of showing that the licensee was offered a meaningful opportunity to comply with 8 section 1547 of the Code.” Broadbelt v. Department of Transportation, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa. Cmwlth. 2006) (citing Petrocsko v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 714 (Pa. Cmwlth. 2000)). Furthermore, it has been held that “anything less than an unqualified, unequivocal assent [to chemical testing following an arrest for DUI] constitutes a refusal [to submit to testing] under section 1547.” Broadbelt, 903 A.2d at 641 (citing Department of Transportation v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 939 (1996) quoting Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa. Cmwlth. 108, 468 A.2d 891, 892 (1983)). In Broadbelt, the licensee alleged that he did not have a meaningful opportunity to comply with section 1547 of the Code due to the short amount of time he was given to consider the Form DL-26 warnings and the distraction from another person in the room. Broadbelt, 903 A.2d at 640. His argument was based on his assertion that the officer did not ensure that he understood the warnings. Id. The Commonwealth Court disagreed. It held that nothing in the case law imposes a duty upon the officer to ensure that a licensee understands the warnings. Id. at 641. Rather, it is the duty of the officer to convey to the licensee the consequences of refusing to submit to a chemical test, and that this duty is satisfied when the officer reads the Form DL-26 warnings to the licensee. Id. (citing Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30 (Pa. Cmwlth. 2005) for the proposition that it is the sole duty of the officer to inform the licensee of the consequences of refusing to submit to a chemical test, that this duty is satisfied once the officer reads the Form DL-26 warnings and that officers have no duty to make sure that a licensee understands the consequences of refusing a chemical test). Applying the foregoing, we conclude that Appellant was given the requisite opportunity to comply with section 1547 of the Code. Cpl. Patterson satisfied his duty when he clearly and 9 unequivocally read the Form DL-26 warnings to Appellant. Appellant informed Cpl. Patterson that he did not understand the warnings; however, as noted above, it is not the duty of an officer to ensure that a licensee understands the warnings. In the end, when asked to give a blood sample, no unqualified, unequivocal assent was given. We are satisfied that PennDOT has met its burden of showing that appellant refused the test. Because PennDOT has met its burden, the burden then shifts to Appellant who must establish that the refusal was not knowing or conscious or that the he was physically unable to take the test. Kollar, 7 A.3d at 339. Appellant offered no evidence or testimony in his defense in this regard. ORDER th AND NOW, this 20 day of May, 2011, upon consideration of the within APPEAL OF OPERATOR’S LICENSE SUSPENSION, and following hearing, it is hereby ordered that the within appeal from suspension of operator’s license is DENIED. BY THE COURT, __________________ Kevin A. Hess, P.J. 10