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HomeMy WebLinkAbout2012-5518 (2) KIMBERLY I. GROGG, Appellant v. IN THE COURT OF COMMON PLEAS COMMONWEALTH OF OF THE NINTH JUDICIAL DISTRICT PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF 2012-05518 CIVIL TERM DRIVER LICENSING , Appellee LICENSE SUSPENSION APPEAL IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925 Placey, C.P.J., 20 March 2013. The present case arises from an appeal of a PennDOT suspension to the Cumberland County Court of Common Pleas, which was dismissed on 13 December 2012. Following that decision, Appellant, Kimberly I. Grogg, hereinafter “Licensee,” filed a timely appeal to the Commonwealth Court. Licensee’s Concise Statement of Matters Complained of on Appeal alleges that this court committed an error of law when it dismissed the license suspension appeal and found that Licensee consciously refused to submit to chemical testing. This opinion is in support of the 13 December 2012 decision. FINDING OF FACTS The salient facts from the hearing are as follows: 1. On 14 July 2012, a multiple year veteran officer, hereinafter the “Officer,” of the Hampden Township Police Department was working his shift on uniform 1 patrol duty. 1 Notes of Testimony, 12 December 2012, p. 5-6 (hereinafter N.T. at ___). 2. The Officer was dispatched by Cumberland County Dispatch Center to the 2 report of a hit and run crash in the parking lot of a bar. 3. The Officer was advised that a probation officer, who was making the call to the dispatch center, had made contact with Licensee and suspected that she 3 may be under the influence of alcohol. 4. Upon arriving at the scene, the Officer spoke with the probation officer on duty, who related information regarding what had occurred when Licensee 4 attempted to leave the parking lot. 5. The location of the bar is associated with the hotel known as the Park Inn, 5 located along the Carlisle Pike. 6. Access to the Park Inn is controlled by a traffic light on the Carlisle Pike where it intersects with I Street on the Navy Depot side, and Van Patten Drive 6 on the Park Inn side. 7. The police contact occurred in the parking lot as Licensee’s vehicle was stopped by the probation officer while attempting to exit via Van Patten Drive 7 at the traffic light controlled intersection. 2 N.T. at 6. 3 N.T. at 6-7. 4 N.T. at 7-8. 5 N.T. at 18. 6 N.T. at 18. 7 N.T. at 19. 2 8. The Officer made contact with Licensee while she was still inside the vehicle and noted that she was chewing on mints, had red glassy eyes, and simply 8 stared at the Officer when he asked about the incident. 9. The Officer asked Licensee to exit her vehicle to perform field sobriety testing, which was conducted at the T-Mobile business located at a separate, 9 unconnected parking lot adjoining the roadway or the hotel/bar parking lot. 10. The Officer noted at least six (6) distinct indicators of intoxication during the 10 field sobriety testing. 11. In addition to these indicators, the Officer was informed of the parole officer’s observation that Licensee was unable to drive safely and Licensee’s admission to the Officer that she drank an alcoholic beverage, all of which led 11 the Officer to conclude that Licensee was under the influence of alcohol. 12. Licensee was placed under arrest for driving under the influence and transported to Cumberland County Booking Center located within the 12 Cumberland County Prison for DUI processing and a chemical test. 13. Thereafter, Licensee’s actions, as shown in Commonwealth’s Exhibit 2, were 13 deemed by the Officer to be a refusal. 8 N.T. at 7-8. 9 N.T. at 8. 10 N.T. at 11-3. 11 N.T. at 7, 11, 13. 12 N.T. at 13. 13 N.T. at 15. 3 14. Commonwealth’s Exhibit 2, which is the video recording of Licensee’s processing at the Cumberland County Booking Center, shows in sequential order the following: (a) a booking officer providing audio visual warnings to Licensee, (b) the DL-26 form being read to Licensee verbatim by the Officer, (c) a break of almost five minutes so Licensee could use the ladies’ room, (d) a rereading of the DL-26 warnings verbatim by the Officer during which time Licensee began to sob audibly, and finally (e) the Officer asking no less than five times in various ways for Licensee to take the chemical test which was met with increased audible sobbing until the Officer deemed her response a refusal and left the video processing area. 15. Commonwealth’s Exhibit 2 then shows Licensee’s interaction with a booking officer, at which time Licensee was no longer audibly sobbing and was making inquiries, challenging the booking officer, and answering some of the booking officer’s questions. 16. The court did not consider any actions by Licensee as shown by the video after she indicated to a booking officer that she wanted to talk to an attorney. DISCUSSION In order to sustain this Licensee’s suspension for a refusal to submit to chemical testing under Section 1547 of the Vehicle Code, the Commonwealth must establish that Licensee: (1) was arrested by a police officer who had reasonable grounds to believe that the licensee was operating or physically controlling a 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. Kollar v. Dep’t of 4 Transp.,Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010). “The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution.” Sisinni v. Dept. of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1257, (Pa. Cmwlth. 2011), citing Banner v. Dep’t of Transp., Bureau of Licensing, 737 A.2d 1203, 1207 (Pa. 1999). In order to find reasonable grounds exist, the court must view the circumstances as they appeared at the time of the incident and determine whether a person in the position of the police officer could have resolved that the licensee was indeed operating a vehicle . under the influence of alcohol. Id, citing Stahr v. Dep’t of Transp., Bureau of Driver Licensing, 969 A.2d 37, 40 (Pa. Cmwlth. 2009). Under Pennsylvania jurisprudence, it is well-settled that anything less than an “unqualified, unequivocal assent” constitutes a refusal under Section 1547 of the Vehicle Code. Dep’t of Transp. v. Renwick, 669 A.2d 934, 939 (Pa. 1996). A refusal may be demonstrated by a licensee’s conduct rather than verbal expressions. See, . e.g., Id (upon request to submit to testing, the licensee closed her eyes, turned her head, and ignored the officer); McCloskey v. Dep’t of Transp., Bureau of Driver Licensing, 722 A.2d 1159, 1163 (Pa. Cmwlth. 1999) (a licensee intentionally stalled and failed to respond for eight minutes after being read implied consent warnings). “The frustration of purpose doctrine provides that a refusal under Section 1547 can be implied from the conduct of the licensee which obstructs or frustrates the administration of the chemical test.” McCamey v. Commonwealth, 601 A.2d 471, 472, n. 2 (P. Cmwlth. 1991). “Police officers are not required to spend time either cajoling an arrestee or waiting for him to change his mind.” Dept. of Transp. v. Ferrara, 493 A.2d 5 154, 156-7 (Pa.Cmwlth. 1985) Reasonable grounds. Upon consideration of the facts presented, the Officer had more than reasonable grounds to believe that Licensee was operating a vehicle while under the influence of alcohol. Prior to arriving, the Officer was supplied with information from dispatch of a hit and run incident, which was corroborated by an on- scene report from an eyewitness. The Officer was then duty bound to investigate further and found an unresponsive Licensee behind the wheel, who exhibited classic signs of intoxication. Taken together, these facts are sufficient to support the conclusion that the Officer had reasonable grounds. Request to submit and refusal. On two separate occasions following the reading of the implied consent warnings, the Officer requested Licensee to submit to a chemical test. Each time, Licensee was non-responsive to the inquiry. During the first occasion, Licensee responded by requesting to use the bathroom, which the Officer courteously and professionally permitted; however, it is noted that the law would not require him to do so. Upon Licensee’s return from the bathroom, the Officer repeatedly and in various ways requested the Licensee to submit to a chemical test. In all of these requests, Licensee’s refusal was demonstrative rather than verbal. It was not lost in this court’s review of the video that after the Officer’s departure, following his determination that Licensee’s response was a refusal, that Licensee was able to verbalize not only her responses, but was able to conduct her own interrogation of the booking officer. Warning of consequences of refusal. The video clearly shows the Officer reading verbatim, not once but twice, the implied consent warnings required from PennDOT’s form DL-26. A copy of the warning that was used is part of the Commonwealth’s Exhibit 6 1. The Officer read it clearly and distinctly without undue haste or intemperate tonal reflection. This is a classic example of what the courts expect from our police officers. CONCLUSION The testimony of the Officer, corroborated by the video of the Officer’s interaction at the booking center, clearly demonstrates reasonable grounds to request Licensee to submit to a chemical test, which she demonstratively refused to do after hearing two verbatim warnings that refusal may result in license suspension. This judgment is more than amply supported by the record and the Commonwealth Court should affirm the 13 December 2012 decision, which dismissed the license suspension appeal and reinstated the license suspension. BY THE COURT, ________________________ Thomas A. Placey C.P.J. Distribution: Edward F. Spreha, Jr., Esq. Philip Bricknell, Esq. 7