Opinion
782 C.D. 2020 783 C.D. 2020
09-30-2021
Kevin Michael Hambright v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
OPINION NOT REPORTED
Submitted: June 4, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE J. ANDREW CROMPTON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
MEMORANDUM OPINION
BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Cumberland County that sustained the consolidated appeals of Kevin Michael Hambright (Licensee) from a one-year disqualification of his commercial driving privilege pursuant to Section 1613 of the Vehicle Code, 75 Pa. C.S. §1613, and a one-year suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i). Both the disqualification and the suspension were imposed by the Department because Licensee refused to submit to a chemical test. The Department argues that common pleas erred by determining that the arresting officer did not have reasonable grounds to believe that Licensee was in actual physical control of the movement of his vehicle while under the influence of alcohol and, thus, had no basis for requesting that Licensee submit to a chemical test. For the following reasons, we reverse.
Section 1613(a) of the Vehicle Code applies the implied consent requirements to commercial motor vehicle drivers. 75 Pa. C.S. §1613(a). Section 1613(d.1) of the Vehicle Code states, in relevant part:
Upon receipt of a report of test refusal, the department shall disqualify the person who is the subject of the report for the same period as if the department had received a report of the person's conviction for violating one of the offenses listed in [S]ection 1611(a) [of the Vehicle Code, 75 Pa. C.S. §1611(a)] (relating to disqualification). A person who is disqualified as a result of a report of test refusal that originated in this Commonwealth shall have the same right of appeal as provided for in cases of suspension. . . .75 Pa. C.S. §1613(d.1). Section 1613(d.3)(2) of the Vehicle Code defines "report of test refusal," in relevant part, as "[a] notice by a police officer to the [D]epartment of a person's refusal to take a test requested pursuant to [S]ection 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) where the person was a commercial driver at the time relevant to the refusal." 75 Pa. C.S. §1613(d.3)(2). Section 1611(a) of the Vehicle Code disqualifies a "person from driving a commercial motor vehicle . . . for a period of one year for the first violation of: (1) [S]ection 3802 (relating to driving under influence of alcohol or controlled substance) . . ., where the person was a commercial driver at the time the violation occurred . . . ." 75 Pa. C.S. §1611(a).
Section 1547(b)(1)(i) of the Vehicle Code states:
(1) If any person placed under arrest for a violation of [S]ection 3802 [of the Vehicle Code, 75 Pa. C.S. §3802 (relating to driving under the influence of alcohol or a 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 [D]epartment shall suspend the operating privilege of the person as follows: (i) Except as set forth in subparagraph (ii), for a period of 12 months.75 Pa. C.S. §1547(b)(1)(i).
Before this Court, the Department filed two separate appeals: No. 782 C.D. 2020 relates to the commercial driver's license (CDL) disqualification; No. 783 C.D. 2020 relates to the suspension of the operating privilege. On March 22, 2021, this Court granted the Department's motion to consolidate the two cases.
By notice mailed on March 10, 2020, the Department informed Licensee that it was disqualifying his commercial driving privilege for one year pursuant to Section 1613 of the Vehicle Code for refusing a chemical test on February 23, 2020. (Reproduced Record "R.R." at 13a-14a.) By separate notice also mailed on March 10, 2020, the Department informed Licensee that it was suspending his driving privilege for one year pursuant to Section 1547(b)(1)(i) of the Vehicle Code for refusing a chemical test on February 23, 2020. (R.R. at 8a-11a.) Licensee appealed the disqualification and the suspension to common pleas. (R.R. at 5a-6a, 21a-22a.) Common pleas consolidated the cases and held a de novo hearing on July 10, 2020. (R.R. at 39a-40a.)
At the hearing, the Department presented the testimony of the arresting officer, Katie Justh, who was the sole witness to testify at the hearing. Licensee's attorney, Patrick F. Lauer, Jr., Esquire (Counsel), stated that there was no need for testimony relating to intoxication, field sobriety tests, or Licensee's appearance, because Licensee stipulated to being intoxicated. (R.R. at 44a.) Rather, Counsel explained that Licensee's appeal was based solely on whether the Department could meet its burden of proving that Officer Justh had reasonable grounds to believe that Licensee was in actual physical control of his vehicle while intoxicated pursuant to Solomon v. Department of Transportation, Bureau of Driver Licensing, 966 A.2d 640 (Pa. Cmwlth. 2009). (R.R. at 44a-45a.)
Officer Justh, of the Lower Allen Township Police Department, testified that she was on patrol in Lower Allen Township, Camp Hill, Pennsylvania, on February 23, 2020, at 12:29 a.m., when she encountered Licensee "slumped over the wheel of the vehicle." (R.R. at 45a-46a.) Licensee was in his vehicle, parked in an unpaved parking lot located behind the White Hill Café and Kreamer Brothers Glass. Officer Justh explained that there is "a road that goes behind [the businesses], and it's where people park, so it's open to the public." (R.R. at 46a.) Licensee's vehicle was running, and he "was passed out in the driver's seat behind the wheel." (R.R. at 47a.) Officer Justh knocked on the driver's side window several times, after which Licensee finally woke up and exited the vehicle. After conducting field sobriety testing, Officer Justh concluded that Licensee was impaired and "incapable of safe driving," so she "placed him under arrest for driving the vehicle" while under the influence of alcohol (DUI). (R.R. at 47a-48a.) She then transported him to the Cumberland County Prison for a blood test. There, she read Licensee the DL-26 consent form containing the implied consent warnings relating to chemical testing. (R.R. at 48a.) Licensee requested an attorney and refused to sign the form. Officer Justh told Licensee that asking for an attorney was considered a refusal, to which Licensee responded by continuing to ask for an attorney. Officer Justh thus concluded that Licensee refused to consent to a chemical test. (R.R. at 48a.)
Officer Justh was asked how she reached the conclusion that Licensee was in actual physical control of the movement of his vehicle when she arrived. (R.R. at 49a, 51a.) She replied, "[h]e was seated in the driver's seat. The vehicle was turned on and running." (R.R. at 51a.)
Counsel did not cross-examine Officer Justh but asked to present argument. The common pleas judge responded, "[y]ou can't do better than win." (R.R. at 51a.) Common pleas then ruled that Officer Justh did not have reasonable grounds to believe that Licensee was in control of the movement of the vehicle at any time before she stopped him. Common pleas stated that "the Solomon case is on all fours when it comes to the issue of control of the movement. There's no testimony-he's parked in a parking lot of a bar. The reasonable implication is that he drank, got out, and started his car." (R.R. at 52a (emphasis added).) Based on this assessment, common pleas concluded that movement of the vehicle was not established and sustained Licensee's appeal. (R.R. at 52a, 54a.) The Department then appealed to this Court. In its brief, the Department claims that Officer Justh had reasonable grounds to believe that Licensee was driving while intoxicated, and that common pleas erred as a matter of law in ruling otherwise. We agree.
On December 11, 2020, common pleas issued two identical opinions pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). Therein, the judge stated that the White Hill Café was a "well known local bar." The Department points out that there was no testimony supporting this finding. We need not address whether common pleas was entitled to take judicial notice of the business of the Café pursuant to Pennsylvania Rule of Evidence 201(b) as a matter "generally known within the trial court's territorial jurisdiction," however, because the relevant caselaw frequently involves automobiles parked in the vicinity of a bar or club. For purposes of our analysis, we will assume, arguendo, that the fact is established, so the issue is moot in light of our ultimate conclusion.
We begin with a review of the relevant law. Section 3802(a)(1) of the Vehicle Code states:
An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.75 Pa. C.S. §3802(a)(1). Section 1547 of the Vehicle Code, commonly referred to as the Implied Consent Law, permits chemical testing of drivers under certain circumstances. 75 Pa. C.S. §1547. To sustain a suspension of a licensee's operating privilege under Section 1547 of the Vehicle Code, the Department has the burden of proving at the statutory appeal hearing that the licensee:
(1) was arrested for [DUI] 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. Dep't of Transp., Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999). The test for whether a police officer had reasonable grounds to believe that a licensee was operating or in actual physical control of the movement of a vehicle while intoxicated is not very demanding, and it is not necessary for the police officer to be correct in his or her belief. Dep't of Transp., Bureau of Driver Licensing v. Bird, 578 A.2d 1345, 1348 (Pa. Cmwlth. 1990). Reasonable grounds are established when a "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." Banner, 737 A.2d at 1207 (emphasis added). Further, "[i]t is immaterial whether alternative reasonable explanations for how the motorist came to be as he was found exist." Gammer v. Dep't of Transp., Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth. 2010) (citing Bird, 578 A.2d at 1348).
Whether reasonable grounds exist is a question of law subject to our plenary review.
Review of the cases in this Court and our Supreme Court does not manifest a bright line test for determining whether reasonable grounds exist. Nonetheless, as we noted in Gammer, "[g]enerally, the motorist's presence in the driver's seat of the vehicle with the engine on has been deemed sufficient to satisfy the reasonable grounds test." Id. at 384. Thus, citing Riley v. Department of Transportation, Bureau of Driver Licensing, 946 A.2d 1115 (Pa. Cmwlth. 2008), Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995), Department of Transportation, Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993); and Polinsky v. Department of Transportation, 569 A.2d 425 (Pa. Cmwlth. 1990), we concluded that "the reasonable grounds test is satisfied when a police officer discovers . . . a motorist slumped over in the driver's seat of the vehicle with the engine running while the vehicle is parked in a legal parking space in a parking lot." Gammer, 995 A.2d at 380. This is the principle almost uniformly applied. In addition to the cases cited above, see also Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187 (Pa. Cmwlth. 2010); Morales v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1597 C.D. 2014, filed April 21, 2015). The case relied upon by common pleas in sustaining Licensee's appeal, Solomon, is not only an outlier but is distinguishable. There, the motorist was found sleeping in a reclined driver's seat and the Court found significant that, although the engine was running, it was a cold and snowy night.
This Court's memorandum opinions may be cited only "for [their] persuasive value, but not as binding precedent." Section 414(a) of the Commonwealth Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a).
Similarly, in Banner, where our Supreme Court found a lack of reasonable grounds, the motorist was reclined in the passenger's seat and the engine was turned off.
Here, common pleas credited Officer Justh's testimony that Licensee was passed out and slumped over the wheel in the driver's seat of his vehicle with the engine running, which caused her to conclude that he had been in physical control of the movement of his vehicle while intoxicated. This satisfies the test for reasonable grounds utilized by the controlling caselaw and, accordingly, we reverse.
ORDER
AND NOW, this 30th day of September, 2021, the order of the Court of Common Pleas of Cumberland County is hereby REVERSED.