Opinion
No. 1854 C.D. 2012
04-04-2013
Richard E. Curry, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Richard E. Curry (Curry) appeals from the Order of the Court of Common Pleas of Bucks County (trial court), dated August 24, 2012, that denied Curry's appeal from a one-year suspension of his operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa.C.S. §1547(b)(1).
Section 1547(b)(1) of the Code provides:
(b) Suspension for refusal-
(1) If any person placed under arrest for a violation of Section 3731 (relating to driving under the influence of alcohol or controlled substance) 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 for a period of twelve months.
The trial court made the following relevant findings of fact:
1. On December 1, 2011, Officer David Mantz of the Perkasie Borough Police Department, was on patrol within the jurisdiction of Perkasie Borough.
2. At about 1:00 A.M., the Officer received a call of an accident on Market Street, between Ridge and Ninth Streets.
3. Officer Mantz was accompanied by Sergeant Richardson.
4. Upon arrival at the accident scene, Officer Mantz observed a vehicle resting against a tree.
5. The Officer concluded that the accident resulted from the failure of the operator to negotiate a right hand turn on Market Street, striking a guard rail and ultimately coming to rest against the tree.
6. His conclusions are [sic] based on markings on the road and the evidence of contact.
7. The vehicle was a four (4) door Volvo, whose [sic] air bags had deployed as a result of the contact.
8. The keys were still in the ignition, and the haze and smoke from the air bags were still suspended in the air inside the vehicle.
9. There was a pair of broken eyeglasses on the floor of the driver's side of the vehicle. Richard Curry (hereinafter referred to as "Curry") admitted that he wore glasses and was wearing them on the day of the accident, but lost those glasses prior to his arrest.
10. The vehicle was registered to Curry. The vehicle was not occupied.
11. Both officers searched in the area and searched the adjoining cemetery that was located approximately one hundred (100) yards from the accident scene.
12. The officers found Richard Curry lying in the cemetery, approximately eighty (80) yards from the vehicle.
13. The officers immediately noticed an order of alcohol on Curry's breath.Trial Court Opinion (Opinion), Findings of Fact Nos. 1-21 at 2-4.
14. The Officers noticed a bloody cut on his hands, a tear in his jeans, and a cut with blood coming from his knee.
15. After placing Curry under arrest, he was asked to submit to a chemical test of his blood.
16. The DL-26 form was read, verbatim, to Curry.
17. Officer Mantz forgot to fill out the bottom section of the DL-26 and did not complete the bottom section until February 5, 2011, the bottom section of that form being the affidavit.
18. Curry responded that he would not submit to the chemical test. Curry also explained that he considered it "worth the risk" of losing his license, and that the attorneys would work that out for him. Curry also refused to sign the DL-26 form.
19. Curry admitted that he was the driver and was involved in the accident that evening.
20. Curry sustained certain injuries in the accident that evening, the confusion caused thereby did not prevent Curry from understanding the request to submit the chemical test.
21. Curry's refusal was knowing, intelligent, and voluntary.
The trial court denied the appeal and explained its reasons for the denial at the hearing:
[The officers] helped the person [Curry] to his feet. He was unsteady on his feet. He had an odor of alcohol. His gait was unsteady. The officers had reasonable cause to believe that the licensee [Curry] was operating the vehicle under the influence.Notes of Testimony, August 24, 2012, (N.T) at 46-48; Reproduced Record (R.R.) at 57a-59a.
The officers then asked questions of the individual that they found in the cemetery and did not get satisfactory answers. They did observe that the person [Curry] had blood on his hand, his pants were torn and his knee was bloody.
The officers had probable cause at that point to believe that the individual was operating the vehicle in question and that he was under the influence of alcohol.
....
DL-26 was read in its entirety, albeit with two interruptions when Paragraph-3 was being read, but the entirety was read. The licensee [Curry] understood that he was requested to submit to a chemical test of his blood. And the licensee [Curry] refused.
I find the officer's testimony credible and the elements required for the request of the blood test were fulfilled.
The licensee [Curry] was placed under arrest for driving under the influence of alcohol. He was asked to submit to [sic] chemical test. He refused to do so. He was warned that the refusal might result in his license suspension. The refusal was knowing and was conscious, knowing and voluntary in terms of his statement that he was not going to submit to the test, that he knew he was being asked to do so.
Curry raises three issues on appeal. Curry contends that: 1) there is not competent evidence to support the trial court's conclusion that Curry was advised that he had no right to an attorney; 2) there is not competent evidence to support the trial court's determination that Curry operated a motor vehicle under the influence of alcohol; and 3) his license suspension should be overturned because Officer David Mantz (Officer Mantz) failed to complete the affiant section of the DL-26 form contemporaneous to his arrest.
This Court has foregone the order of Curry's arguments.
This Court's review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion in making its determination. Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996). --------
Curry essentially argues that substantial evidence did not support the trial court's determination that Curry was advised that he had no right to an attorney or that he operated a motor vehicle under the influence of alcohol.
In cases involving the suspension of a driver's license for a refusal to submit to chemical testing, the Department of Transportation (DOT) must prove: 1) that the licensee was placed under arrest for driving under the influence; 2) that he was requested to submit to chemical testing; 3) that he was informed that a refusal to submit to such testing would result in a suspension of his operating privileges; and 4) that the licensee refused to submit to the test. Department of Transportation, Bureau of Driver Licensing v. Pestock, 584 A.2d 1075 (Pa. Cmwlth. 1990), appeal denied, 528 Pa. 619, 596 A.2d 801 (1991).
Once DOT has established these four elements, the burden then shifts to the licensee to establish that his refusal was not knowing or conscious. Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010). The determination of whether a licensee was able to make a knowing and conscious refusal is a factual one that is to be made by the trial court. Barbour v. Department of Transportation, Bureau of Driver Licensing, 557 Pa. 189, 732 A.2d 1157 (1999).
Here, Officer Mantz testified that he read all four paragraphs of Section 1547 of the DL-26 form to Curry:
[Officer Mantz]: Began with the first line. 'It is my duty as a police officer to inform you of the following:' I read Paragraph-1. I read Paragraph-2. While reading Paragraph-3, Mr. Curry asked me to reread a couple of sentences. I started with Paragraph-3 again. Got about maybe three-quarters of the way through. He made a comment that he didn't understand. He had interrupted me again. I summarized that paragraph saying, 'If you do not give blood today, even if you're not found guilty in court, your license will be suspended for 12 months."
After that I finished Paragraph-3. Finished Paragraph-4.
After that, I asked him if he was willing to give blood to which he responded no. I explained to Mr. Curry that if he does not give us blood this morning, even if he is found not guilty in court, he would be charged, he would lose his license for 12 months. I explained it to him twice. His response was, "It's worth the risk, we'll let the attorneys figure it out."
[Commonwealth's Counsel]: So you read the form to him, then that was his response?
[Officer Mantz]: Correct.
[Commonwealth's Counsel]: You took that as what?N.T at 14-15; R.R. at 25a-26a. The trial court determined that Officer Mantz's testimony that the warnings were given to Curry was credible. Opinion at 8.
[Officer Mantz]: That he was not going to give blood at that time.
The trial court, as the factfinder, determines issues of credibility. It is not the province of this Court to make new or different findings of fact. Hasson v. Department of Transportation, Bureau of Licensing, 866 A.2d 1181 (Pa. Cmwlth. 2005). Rather, this Court may only review the trial court's findings to determine if they are supported by substantial, competent evidence. Riley v. Department of Transportation, Bureau of Driver Licensing, 946 A.2d 1115 (Pa. Cmwlth. 2008). As long as sufficient evidence exists that is adequate to support the facts found by the trial court as factfinder, we are precluded from overturning those findings. Department of Transportation, Bureau of Driver Licensing v. Berta, 549 A.2d 262 (Pa. Cmwlth. 1988).
Officer Mantz's testimony supported the trial court's determination that Curry understood the warnings.
Curry also challenges the court's finding that Officer Mantz had reasonable grounds to believe he operated a motor vehicle under the influence of alcohol as not supported by substantial evidence. Curry submits that Officer Mantz neither asked him to perform any field sobriety tests nor submit to a breathalyzer test. Further, he argues his unsteady gait, inability to stand steady on his feet, or walk to the car in a straight line could have been the result of the knee injury he suffered in the accident.
The test for determining whether a police officer possesses reasonable grounds to suspect a motorist was driving under the influence is not very demanding. Hassan v. Department of Transportation, Bureau of Driver Licensing, 866 A.2d 1181 (Pa. Cmwlth. 2005). To determine whether a police officer had reasonable grounds, this Court must view the facts and circumstances as they appeared at the time and decide whether a reasonable person in the position of the police officer could have concluded that the alleged driver was operating the vehicle under the influence of alcohol. Incarvite v. Department of Transportation, Bureau of Driver Licensing, 732 A.2d 39 (Pa. Cmwlth. 1999). Whether a police officer has reasonable grounds to suspect an individual is in violation of the DUI provisions is a question of law subject to appellate review. Cole v. Department of Transportation, Bureau of Driver Licensing, 909 A.2d 900 (Pa. Cmwlth. 2006). It is not necessary for a police officer to conduct field sobriety testing in order for the officer to have "reasonable grounds." Sisinni v. Department of Transportation, Bureau of Driver Licensing, 31 A.3d 1254 (2011), appeal denied, ___ Pa. ___, 44 A.3d 1163 (Pa. Cmwlth. 2012).
Officer Mantz explained that he thought Curry was driving the vehicle because it "was registered to him [Curry]. There was no indication that anybody else was in the vehicle. He also had a bloody cut on his, one of his palms... He also had a tear in his jeans and there was a little bit of blood coming from his knee." N.T. at 11; R.R. at 22a. Officer Mantz also testified that Curry smelled of alcohol, had blood shot eyes and couldn't walk in a straight line because he was intoxicated. Therefore, this Court determines that there was substantial evidence to support the trial court's finding that Officer Mantz had reasonable grounds to believe Curry operated a motor vehicle under the influence of alcohol.
Curry also argues that his license suspension should be overturned because Officer Mantz admitted that he did not complete the affidavit sections of the DL-26 form at the time of arrest.
The trial court determined:
The affiant portion [of the DL-26 form], of course, is the officer's affidavit that the three above noted requirements were satisfied. The affidavit has nothing to do with additional information that the officer was to provide to the Appellant [Curry], but merely verifies that the information was in fact given. We were satisfied from the testimony of the Officer that he did give the information and finding the Officer to be credible, we concluded that all requirements were met to support Appellant's [Curry's] suspension. Furthermore, the officer did complete the affidavit several days later.Opinion at 7.
There is no requirement in Section 1547(b)(1) of the Code that the affidavit portion of the DL-26 form must be completed by the arresting police officer at the time of the refusal for DOT to suspend a licensee's operating privilege for a refusal to submit to chemical testing. Further, Curry cites no case law that supports his position.
This Court finds no error in the trial court's determination that Curry was not entitled to relief as a consequence of Officer Mantz's failure to complete the affidavit section of the DL-26 form when he first submitted the form to the Bureau of Driver Licensing.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of April, 2013, the Order of the Court of Common Pleas of Bucks County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge