HomeMy WebLinkAbout2012-1668
SAMBHU SHAH, : IN THE COURT OF COMMON PLEAS OF
PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : NO. 12-1668 CIVIL
ORDER OF COURT
st
AND NOW
, this 21 day of September, 2012, upon consideration of Sambhu
Shah’s appeal of driver’s license suspension, after hearing, and consideration of the
briefs filed by the parties;
IT IS HEREBY ORDERED AND DIRECTED
that the Petitioner’s appeal from
DENIED
suspension of operating privileges is .
By the Court,
M. L. Ebert, Jr., J.
Joseph Gothie, Esquire
Attorney for Petitioner
Philip Bricknell, Esquire
Department of Transportation
bas
SAMBHU SHAH, : IN THE COURT OF COMMON PLEAS OF
PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : NO. 12-1668 CIVIL
IN RE: APPEAL FROM SUSPENSION OF OPERATING PRIVILEGES
OPINION AND ORDER OF COURT
Ebert, J., September 21, 2012 –
On February 14, 2012, the Pennsylvania Department of Transportation mailed an official
notice to Sambhu Shah that his operating privileges would be suspended for a period of one
year, effective March 20, 2012, for a violation of 75 Pa.C.S.A. §1547(b) – Suspension for
Refusal. On March 15, 2012, Sambhu Shah, (hereinafter Appellant), filed an appeal of Driver’s
License Suspension with this Court. A hearing was held on June 22, 2012. The Appellant filed
a brief on the matter with this Court on July 6, 2012. The Commonwealth filed a responsive
brief on July 12, 2012. The Court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. On October 17, 2011, Sambhu Shah resided in an apartment located at 62 West
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Main Street, #1, Mechanicsburg, PA.
2. The Court takes judicial notice that bars and taverns which serve alcoholic beverages
in Pennsylvania are required by law to close at 2:00 a.m. each morning. 47 Pa.C.S.A. §4-
405(a)(2).
3. At approximately 2:00 a.m. on the morning of October 17, 2011, Officer Michael
Bettis of the Mechanicsburg Police Department was flagged down by Karen Hockenberry and
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Commonwealth Exhibit #1, item #2 (hereinafter Commw. Ex. 1, item ___.)
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responded to a report of a hit and run accident in the 100 block of East Allen Street in
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Mechanicsburg.
4. Karen Hockenberry told the officer she had heard a loud bang, came out of her house
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and saw that a “NO PARKING” sign had been knocked over.
5. Officer Bettis, an officer with over six years’ experience as a police officer, observed a
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fluid trail leading from the scene of the accident.
6. Officer Bettis followed the fluid trail and in no more than two minutes he found a
Dodge vehicle bearing PA registration FSA 1332. The vehicle had damage to the front bumper
and an oil/fluid leak. The driver’s side door of the vehicle had been left open and an open bottle
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of beer and a cell phone were found in the vehicle.
7. The Dodge vehicle was found in a municipal parking lot which is approximately 150
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feet from the Appellant’s apartment.
8. By checking the registration of the Dodge vehicle, it was found to be registered to
Shiba Shah, the brother of the Appellant, who resides at 708 Fireside Road in York,
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Pennsylvania.
9. Shiba Shah had given Appellant permission to possess and drive the Dodge vehicle.
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Appellant had been using the vehicle three or four years.
10. After investigation to determine the address of the Appellant, the police went to the
62 West Main Street apartment and arrived at 2:52 a.m. Officer Bettis observed the Appellant in
the kitchen of the apartment. The Appellant was cooking a piece of raw meat directly on the
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Notes of Testimony of License Suspension Hearing, 6/22/12 p. 5 (hereinafter N.T. __.)
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N.T. 6.
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N.T. 5-7.
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N.T. 7-8, 20,27.
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N.T. 18
7
N.T. 8, 29.
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N.T. 31.
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flame of the gas range in the kitchen without using a pan. This process was creating the odor of
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smoke in the apartment.
11. While Officer Bettis observed a couple of bottles of beer in the kitchen, he did not
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see Appellant drinking any alcoholic beverages.
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12. Appellant stated that he had been in his home approximately one hour.
13. Upon questioning, initially the Appellant said he was driving the vehicle in question
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but later changed his statement to say that he wasn’t driving the vehicle.
14. Upon being advised that the damaged vehicle had been located, Appellant stated
that it was his brother’s vehicle. He stated that he would contact his brother and let him know
what had occurred. However, the Appellant couldn’t do this because he couldn’t find his cell
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phone.
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15. The Appellant did admit that he had been drinking alcoholic beverages earlier.
16. Officer Bettis noticed that the Appellant had a distinct odor of alcohol about him, that
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his speech was slurred and his eyes were bloodshot.
17. Officer Bettis was of the opinion that the Appellant was under the influence of
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alcohol.
18. Circumstantial evidence establishes that Appellant was driving the vehicle involved
in the hit and run accident which occurred approximately 52 minutes before the Appellant was
confronted and that the cause of that accident was the Defendant’s intoxication.
19. The Appellant was arrested for Driving Under the Influence and transported to the
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Carlisle Regional Medical Center to obtain a legal blood test.
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N.T. 9-10, 20.
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N.T. 24-25.
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N.T. 12.
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N.T. 10.
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N.T. 10, 12.
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N.T. 11, 23.
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N.T. 11.
16
N.T. 11.
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20. Appellant was read the Pennsylvania Department of Transportation form DL-26 (5-
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08), Chemical Testing Warning and Report of Refusal.
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21. Appellant refused to sign the form.
22. Appellant indicated to the officers that he wanted to speak to his brother or an
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attorney before he consented to blood alcohol testing. He did this two times.
23. The Appellant did not submit a blood alcohol sample even after he was warned that
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refusal might result in a license suspension.
24. Appellant was formally charged with Driving Under the Influence, Restrictions on
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Alcoholic Beverages, and Accidents Involving Damage to Unattended Vehicle or Property.
25. Appellant waived his preliminary hearing on January 6, 2012, and the case was filed
with the Cumberland County Clerk of Court’s Office on January 10, 2012, and docketed to CP-
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21-CR-0085-2012.
26. The Appellant did not testify at the Appeal from License Suspension hearing on
June 22, 2012.
27. The Appellant did not become intoxicated to the level observed by Officer Bettis at
2:52 a.m. on October 17, 2011, during the time between the hit and run accident and his initial
encounter with the police at his residence.
CONCLUSIONS OF LAW
1. Officer Bettis had reasonable grounds to suspect that Appellant was operating or was
in actual physical control of the movement of a vehicle while under the influence of alcohol prior
to his arrest for Driving Under the Influence.
2. Appellant refused to submit to chemical testing.
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N.T. 12-13.
18
Commonwealth’s Exhibit #1, Item 2; N.T. 13-15.
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N.T. 15-16.
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N.T. 16.
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N.T. 15-17.
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Cumberland County Criminal Court File CP-21-CR-085-2012.
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Cumberland County Criminal Court File CP-21-CR-085-2012.
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DISCUSSION
I. STANDARD OF REVIEW
It is well settled that a license suspension is a civil proceeding, Com., Dept. of
Transportation, Bureau of Traffic Safety v. Arnold, 530 A.3d 980, 981 (Pa. Cmwlth. 1987), and
that initially the burden is on the Commonwealth to show by a preponderance of the evidence
that there was a basis for the suspension. Com., Dept. of Transportation, Bureau of Traffic
Safety v. Burnett, 324 A.2d 894 (Pa. Cmwlth. 1974).
The standard of review in a license suspension case under § 1547 of the Vehicle Code,
75 Pa.C.S.A. §1547, is to determine whether the factual findings of the trial court are supported
by competent evidence and whether the trial court committed an error of law or an abuse of
discretion. Questions of credibility are for the trial court to resolve. Gammer v. Com., Dept. of
Transportation, 995 A.2d 380 (Pa. Cmwlth. 2010).
As the Appellant states, “the standard of review may be, in a nutshell, reasonable
grounds.” Appellant maintains, however, that this standard is not the functional equivalent of
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“the Commonwealth always wins.” While this may be true, this Court cannot lose sight of the
fact the legislative purpose of §1547 of the Vehicle Code is “to keep drunk drivers off the roads.”
Quigley v. Com., Dept. of Transportation, 965 A.2d 349, 352 (Pa. Cmwlth. 2009). Courts have
gone on to say that “the underlying purpose of the implied consent law is to enable the police to
obtain evidence of intoxication or drug use, to be utilized in criminal proceedings. It is not to
hinder law enforcement officers in performing their duties…” Com. v. Miller, 996 A.2d 508, (Pa.
Super. 2010). This Court takes note that these philosophical underpinnings of the chemical
testing statute are recited in the more recent Appellate Court cases.
The burden of proof in license suspension cases is that the Department of
Transportation must establish four elements to sustain a suspension of a licensee’s driving
privileges for refusing to submit to a chemical test. Those elements are:
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Appellant’s brief, p. 5.
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(1) 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 a vehicle while under the influence of alcohol
or a controlled substance;
(2) the licensee was asked to submit to a chemical test;
(3) the licensee refused to do so;
(4) the licensee was warned that refusal might result in
a license suspension
Moran v. Com., Dept. of Transportation, 990 A.2d 1187 (Pa. Cmwlth. 2010).
“Whether evidence is sufficient to constitute ‘reasonable grounds’ can only be
decided on a case-by-case basis. The test, however, is not very demanding. We not[e]
initially that, for ‘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 [or controlled substance]… At trial, the only relevant factual defense
would be a showing that the motorist’s behavior was not, in fact, as the officer testified.
It would then be for the trial court to resolve issues of credibility.” Stancavage v.
Department of Transportation, Bureau of Driver Licensing, 986 A.2d 895, 898 (Pa.
Cmwlth. 2009).
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II. OFFICER BETTIS DID HAVE “REASONABLE GROUNDS”
It goes without stating that in both civil and criminal matters, facts in question may be
proven by means of wholly circumstantial evidence. Pa.SSJI (Crim) 702 A and Pa.SSJI (Civ)
4.00. Additionally, “the trier of fact while passing upon the credibility of the witnesses and
weight of evidence produced is free to believe all, part, or none of the evidence.”
Commonwealth v. Vetrini, 734 A.2d 404 (Pa.Super. 1999).
In applying these principles along with the standards set by the Commonwealth Court
that these cases be viewed in light of the totality of the circumstances, Hasson v. Com., Dept.
of Transp. Bureau of Driver Licensing, 866 A.2d 1181 (Pa.Cmwlth. 2005), this Court finds that
Officer Bettis had reasonable grounds to believe that the Appellant was operating or was in the
actual physical control of the movement of a vehicle while under the influence of alcohol or a
controlled substance.
It must be noted that the Appellant is not challenging the Commonwealth’s failure to
Moran v. Com., Dept. of
establish elements (2), (3) and (4) of the test outlined in
Transportation, 990 A.2d 1187 (Pa. Cmwlth. 2010).
Namely that the Appellant was asked
to submit to a chemical test; that the Appellant refused to do so; and that the Appellant was
warned that the refusal resulted in a license suspension. In essence, the Appellant only
questions whether the evidence proves that Officer Bettis had reasonable grounds to believe
that the Appellant was operating the movement of a motor vehicle while under the influence of
alcohol or a controlled substance.
This case presents a very tight precise timeline which both directly and circumstantially
leads to the conclusion that the Appellant was operating or was in actual physical control of the
movement of a vehicle while under the influence of alcohol prior to his arrest for Driving Under
the Influence. Consider the following:
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OBSERVED FACT REASONABLE LOGICAL CONCLUSION
1. Bars in Pennsylvania close at 2:00 a.m. Persons who drink alcohol to the early
morning hours may be intoxicated and
may choose to operate their vehicles to get
home from the bars.
2. At approximately 2:00 a.m. Karen Hockenberry A person who is intoxicated may be
heard a loud bang and saw that a unable to control the operation of his
“NO PARKING”
sign located on the sidewalk had been vehicle such that he would drive onto a
driven over. sidewalk and knock down a sign.
3. The accident in question was a hit and run in A person knowing that he is intoxicated
Violation of 75 Pa.C.S.A. §3745. will not remain at the scene of an accident
and will flee the scene of the accident in
order to avoid an encounter with police,
thereby avoiding arrest for Driving Under
the Influence.
4. The fluid trail from the hit and run accident Circumstantially, it is reasonable to believe
led Officer Bettis in no more than two minutes that the Defendant was driving the vehicle
to a vehicle which was registered to at the time of the hit and run accident.
Appellant’s brother. Appellant’s brother
testified that the Appellant had
driven the vehicle for several years.
5. The vehicle had damage to its front bumper, This vehicle was the vehicle involved in
there was a fluid leak from the vehicle, the the hit and run accident. The driver
vehicle’s side door was left open, an open was intoxicated to the extent that
bottle of beer and a cell phone were found in he left the door of the vehicle open and
the vehicle. forgot to take his cell phone.
6. The vehicle was within 150 feet of the Appellant abandoned the vehicle and
Appellant’s apartment. went home.
7. The police were at the Appellant’s door This short period of time coupled with
at approximately 2:52 a.m., less than one the fluid trail leading directly to the
hour after the report of the hit and run Appellant’s vehicle parked so near his
accident. The Appellant was awake apartment with Appellant awake
and cooking. circumstantially establishes he
was the driver who caused the accident.
8. Appellant is observed in his apartment This is the act of a person who is very
cooking a piece of raw meat directly intoxicated. Circumstantially he did not get
on the flame of a gas range without intoxicated from the time he came home
using a pan. until the time he was observed by the
Officer.
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9. Appellant could not find his cell phone to Appellant being very intoxicated forgot
call his brother. that he had left the cell phone in the vehicle.
10. The Appellant admitted to Officer Bettis Drinking alcoholic beverages can lead
that he had been drinking alcoholic to intoxication.
beverages earlier.
11. Appellant first admitted to Officer Bettis Appellant as a result of his intoxication
that he had been driving the vehicle was confused and realized that by
in question and then later retracted the admitting that he had been driving the
statement saying he wasn’t driving the vehicle he could be subject to arrest for
vehicle. DUI and Hit and Run, consequently he
changed his statement.
12. Officer Bettis observed the Appellant The Appellant was intoxicated and
to have a distinct odor of alcohol had been intoxicated for a considerable
about him, that his speech was slurred period of time. He did not get intoxicated
and that his eyes were bloodshot. In from the time he came home until
Officer Bettis’ opinion the Appellant was being observed by the Officer.
under the influence of alcohol.
Clearly, a finder of fact hearing this evidence would be justified in convicting the
Appellant of Driving Under the Influence beyond a reasonable doubt. Of course, the Appellant
maintains there are other explanations for every one of these facts. Unfortunately for him,
however, he offered no evidence to contradict the Commonwealth’s case. “It is well settled that
failure to call an available witness who is within one party’s control and who has knowledge
pertaining to a material issue may, if not explained, raise an inference or presumption that the
absent witness’ testimony would have been adverse to that party.” Salter v. Dept. of
Transportation, Bureau of Driver Licensing, 670 A.2d 1205, 1207 (Pa. Cmwlth. 1996). Appellant
was at the hearing but did not testify or offer any explanation of what he was doing on the
evening/morning in question. Appellant offered no explanation for his failure to testify and this
Court finds that his truthful testimony would have been adverse to his appeal.
Appellant cites Stahr v. Dept. of Transportation, Bureau of Driver Licensing, 969 A.2d 37
(Pa.Cmwlth. 2009), to support his appeal. The case is clearly distinguishable on two important
points. First, in Stahr it is clear that Stahr testified at the hearing. As noted in the opinion, the
Court stated “Stahr claims he had not consumed alcohol when he returned home from the
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accident and that he informed the state trooper accordingly…” Id. at 39. Additionally, the
Commonwealth Court’s opinion was obviously influenced by the fact that Stahr was never
charged. The Court stated, “Notably, Stahr was never formally charged with driving under the
influence.” Id. at 39. Obviously, that is not the case here. Appellant was charged and we take
judicial notice of the fact that he entered the Cumberland County ARD Program on March 28,
2012. He is scheduled to complete his ARD Program on September 30, 2012.
Accordingly, the following Order of Court is entered.
st
AND NOW
, this 21 day of September, 2012, upon consideration of Sambhu
Shah’s appeal of driver’s license suspension, after hearing, and consideration of the
briefs filed by the parties;
IT IS HEREBY ORDERED AND DIRECTED
that the Petitioner’s appeal from
DENIED
suspension of operating privileges is .
By the Court,
M. L. Ebert, Jr., J.
Joseph Gothie, Esquire
Attorney for Petitioner
Philip Bricknell, Esquire
Department of Transportation
bas
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