HomeMy WebLinkAbout2012-0253
LEE A. KIMMEL : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT OF :
TRANSPORTATION, BUREAU OF :
DRIVER LICENSING : 12-0253 CIVIL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE
OF APPELLATE PROCEDURE 1925
Masland, J., November 27, 2012:--
Before the court is the appeal filed by Lee A. Kimmel (Licensee)
challenging the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT)’s suspension of his operating privileges
for a refusal to submit to chemical testing. After a hearing on the matter, the
court affirmed the suspension. Licensee now complains of the following matters
on appeal:
1. The police officer did not have a reasonable basis
to ask [Licensee] to submit to chemical testing.
2. The [Licensee’s] refusal to the extent there was
one under the circumstances was not knowing,
intelligent, nor voluntary, and there was in fact no
refusal, therefore license suspension does not lie.
3. The requesting officer was not in his jurisdiction.
Concise Statement, filed October 17, 2012.
I. Facts
On the night of November 23rd, 2011, Jason Beltz, an officer with the
Mount Holly Springs Police Department, was on a routine patrol when he
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received a call from County Control that a private citizen had reported a possible
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DUI at the Sheetz parking lot. Officer Beltz was given a description of the
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alleged DUI driver and his vehicle. The private citizen also reported the alleged
driver had urinated himself, was stumbling around the parking lot, and had
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difficulty refueling his vehicle.
While Officer Beltz was responding to the Sheetz, the alleged DUI driver
drove away from the parking lot and headed east in the direction of Boiling
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Springs. Armed with this information, Officer Beltz followed in hot pursuit,
ultimately catching up to the vehicle between a mile and a half to two miles from
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the Sheetz parking lot. By the time Officer Beltz effectuated a traffic stop of the
alleged DUI driver, later identified as Licensee, the officer was outside his
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jurisdiction. Specifically, Officer Beltz pursued Licensee from the Sheetz parking
lot which was in his jurisdiction, to approximately half a mile beyond the borough
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line that indicates the limits of Mount Holly Springs.
At the hearing, Officer Beltz testified as to why he considered this a matter
of hot pursuit. The following exchange occurred:
Officer Beltz: Well, I have a report of a drunk
individual, you know, public drunkenness at the
beginning, and the when he left then, you know, I
started to investigate the DUI.
Attorney Bricknell: Was there a concern, a safety
concern?
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Notes of Testimony, August 15, 2012 at 16. (N.T. at __).
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N.T. at 16.
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N.T. at 17.
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N.T. at 17.
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N.T. at 18.
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N.T. at 18.
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N.T. at 18-19.
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Officer Beltz: Absolutely.
Attorney Bricknell: And what was that?
Officer Beltz: Well, just driving under the influence is
very dangerous to the general public. In fact, the
original caller started to follow him, and she decided
not to because she didn’t want to witness the
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accident.
Further, as Officer Beltz approached Licensee’s vehicle, he observed him driving
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in the center of the road, well over the center line.
After Officer Beltz initiated the traffic stop, he ordered Licensee out of his
vehicle, at which time he observed the Licensee swaying and steadying himself
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against his vehicle and that Licensee smelled of alcohol. Soon after exiting his
vehicle, Licensee reentered the vehicle and attempted to start his vehicle, at
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which point Officer Beltz reached in and removed the keys from the ignition. At
this point, Licensee again exited the vehicle, but began reaching into his pockets
and produced a second set of keys, jumped into his vehicle, started the ignition,
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and fled.
Following a brief pursuit, Licensee veered off the road into a farmer’s
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field. Due to the limitations of the officer’s vehicle and his suspicion that
Licensee was headed to his parents’ house, Officer Beltz broke off his immediate
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pursuit and travelled to Licensee’s parents’ house. That location was just
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N.T. at 19.
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N.T. at 19.
10
N.T at 20.
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N.T. at 20.
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N.T. at 21.
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N.T. at 21.
14
N.T. at 21.
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outside the Officer’s jurisdiction. Shortly after arriving, Officer Beltz observed
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Licensee’s vehicle stuck on a stump and spinning its wheels. He approached
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the vehicle and arrested Licensee for DUI.
At the processing center, Officer Beltz read the DL-26 form verbatim to
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Licensee regarding the consequences of refusing to submit to chemical testing.
In response, Licensee lunged at the Officer and had to be physically restrained
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by prison correctional officers. Officer Beltz determined that Licensee’s
attempted physical attack and verbal hostility constituted a refusal of chemical
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testing. Following the close of Officer Beltz’ testimony, PennDOT then
introduced a video recording of Licensee’s behavior at the processing center that
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corroborated Officer Beltz’ account of Licensee’s refusal of chemical testing.
II. Discussion
The relevant portion of the Implied Consent Provision of the Motor Vehicle
Code provides:
(a) General rule.--Any person who drives, operates or
is in actual physical control of the movement of a
vehicle in this Commonwealth shall be deemed to
have given consent to one or more chemical tests of
breath, blood or urine for the purpose of determining
the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable
grounds to believe the person to have been driving,
operating or in actual physical control of the
movement of a vehicle:
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N.T. at 21.
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N.T. at 21.
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N.T. at 21.
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N.T. at 23-24.
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N.T. at 24.
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N.T. at 25-26.
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N.T. at 28.
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(1) in violation of section … 3802 (relating to driving
under influence of alcohol or controlled substance)
…
(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:
(B) The person has, prior to the refusal under this
paragraph, been sentenced for:
…
(I) an offense under section 3802 ….
75 Pa.C.S. §1547.
To sustain a suspension under this section of the Code, PennDOT must
prove 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.
Sinsinni v. Dept. of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1256 (Pa.
Cmwlth. 2011).
A. Reasonable Grounds for Chemical Testing
Licensee first argues Officer Beltz did not have a reasonable basis for
requesting chemical testing. In Sinsinni, the Commonwealth Court explained:
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Whether reasonable grounds exist is a question of
law reviewable by this Court on a case-by-case basis.
The standard of reasonable grounds to support a
license suspension does not rise to the level of
probable cause required for a criminal prosecution.
Reasonable grounds exist to support a license
suspension 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 licensee was operating the vehicle while under the
influence of intoxicating liquor. Further, it is not
necessary for a motorist to fail a field sobriety test in
order for a police officer to have reasonable grounds
to request a motorist to submit to a chemical test.
Id. at 1257 (citations omitted).
Additionally, there are no set of characteristics a licensee must exhibit to
give rise to reasonable grounds to believe he is under the influence of alcohol.
However, case law has identified several factors that have provided reasonable
grounds for an arrest, including “staggering, swaying, falling down, belligerent or
uncooperative behavior, slurred speech, and the odor of alcohol.” Id. at 1258.
Here, Officer Beltz credibly testified that Licensee was swaying, having
difficulty standing, exhibiting belligerent behavior, and smelled of alcohol. All
these factors coupled with Licensee’s flight from the initial traffic stop, provided
Officer Beltz with ample information to form a reasonable basis for arresting
Licensee for DUI and therefore was entitled to request Licensee submit to
chemical testing.
B. Knowing, Intelligent, and Voluntary Refusal
Licensee next argues that he did not refuse chemical testing and that to
the extent the court determines that he did, it was not a knowing, intelligent, and
voluntary refusal.
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As previously stated, to sustain a suspension based on a refusal of
chemical testing, PennDOT must prove the licensee was asked to submit to a
chemical test, refused to do so, and was warned that refusal might result in a
license suspension. Sinsinni, 31 A.3d at 1256.
A refusal is defined as “anything substantially less than an unqualified,
unequivocal assent to [submit to] a [chemical] test.... A refusal need not be
expressed in words, but can be implied from a motorist's actions.” Lanthier v.
Com., Dept. of Transp., Bureau of Driver Licensing, 22 A.3d 346, 348 (Pa.
Cmwlth. 2011).
Once again, we find that Officer Beltz testified credibly that he asked
Licensee to submit to a test and that he read Licensee the DL-26 warning. This
was corroborated by the Officer’s contemporaneously signed affidavit regarding
the refusal and the video surveillance footage at the processing center. And,
Licensee’s refusal was manifestly demonstrated by his attempted attack and
verbal abuse of Officer Beltz. Such conduct is not only far less than an
unequivocal assent to testing, it is tantamount to an unequivocal refusal. As
such, Licensee did refuse chemical testing in a knowing, intelligent, and voluntary
manner.
C. Jurisdiction
Licensee’s final argument is that Officer Beltz acted outside his jurisdiction
and therefore had no power to arrest or submit Licensee to chemical testing.
First, there is no dispute that the initial traffic stop and ultimate arrest of
Licensee occurred outside of Mount Holly Springs and thus outside of Officer
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Beltz’ primary jurisdiction. However, Officer Beltz credibly testified that he was in
hot pursuit of Licensee and was therefore justified in acting outside his
jurisdiction in the interest of protecting public safety.
Municipal police jurisdiction is governed by the following:
Any duly employed municipal police officer who is
within this Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have the power
and authority to enforce the laws of this
Commonwealth or otherwise perform the functions of
that office as if enforcing those laws or performing
those functions within the territorial limits of his
primary jurisdiction in the following cases:
…
(2) Where the officer is in hot pursuit of any person for
any offense which was committed, or which he has
probable cause to believe was committed, within his
primary jurisdiction and for which offense the officer
continues in fresh pursuit of the person after the
commission of the offense.
42 Pa.C.S. § 8953(a)(2).
In the context of DUI pursuits, probable cause sufficient to make an
extraterritorial arrest has been found where the officer’s testimony established
that the road was a high pedestrian area, without sidewalks and that the vehicle,
travelling at twice the speed limit was approaching a hill crest and an
intersection, while within the officer’s primary jurisdiction. Weems v. Com., Dept.
of Transp., Bureau of Driver Licensing, 990 A.2d 1208, 1215 (Pa. Cmwlth. 2010).
Here, Officer Beltz was acting on time-sensitive eye witness descriptions
of Licensee appearing to be extremely intoxicated, covered in his own urine,
unable to walk or properly pump gas, and within Officer Beltz’ primary
jurisdiction. In light of the serious public safety concerns presented by
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intoxicated drivers, Officer Beltz was justified in pursuing and stopping Licensee
roughly two miles outside his jurisdiction.
Officer Beltz had even more justification for the second stage of the
extraterritorial pursuit as he had directly observed Licensee exhibiting signs of
intoxication and driving recklessly off road during the subsequent chase.
Accordingly, at all times, Officer Beltz was justifiably in hot pursuit of Licensee
while outside his jurisdiction.
III. Conclusion
For the foregoing reasons, Licensee’s appeal was properly denied, and
that denial should be affirmed in all respects.
By the Court,
Albert H. Masland, J.
Philip M. Bricknell, Esquire
For the Department of Transportation
Karl E. Rominger, Esquire
For Lee Allen Kimmel
:sal
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