Opinion
No. 647 C.D. 2012
02-01-2013
Lynn V. Hamm, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Lynn V. Hamm (Hamm) appeals from an order of the Court of Common Pleas of Northampton County (trial court) that denied his appeal from an eighteen month suspension of his operating privilege pursuant to Section 1547(b)(1)(ii) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b)(1)(ii).
Section 1547(b) (Suspension for Refusal) of the Code provides:
(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:
(A) The person's operating privileges have previously been suspended under this subsection.
(B) The person has, prior to the refusal under this paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former 3731;
(III) an offense equivalent to an offense under subclause (I) or (II); or
(IV) a combination of the offenses set forth in this clause.
At a November 3, 2011, de novo hearing, Officer Scott Goff (Officer Goff) of the Borough of North Catasauqua Police Department testified:
Officer Goff is presently employed by Kutztown University Police Department.
I observed a yellow Corvette travelling . . . north [on Main Street]. I was using [a] robic speed timing lines and a robic stopwatch when the vehicles [sic] front tires struck the first line. I activated the robic timer device. When I [sic] struck the second line I struck the deactivate device. I found the vehicle to be speeding in a 25 mile per hour, proceeded to pull out, made a stop of the vehicle.Hearing Transcript (H.T.), November 3, 2011, at 5; Supplemental Record (S.R.). When Officer Goff approached Hamm, Officer Goff detected an odor of alcohol on Hamm's breath "as he was speaking to me." H.T. at 5. Officer Goff administered three field sobriety tests, which Hamm failed. Officer Goff administered a "preliminary breath test" at the scene which "showed a positive identification of alcohol." H.T. at 7. Officer Goff placed Hamm under arrest and transported him to the Bethlehem DUI Center.
The Pennsylvania Department of Transportation, Bureau of Driver Licensing (DOT) failed to number the pages in its Supplemental Record (S.R.)
Officer Hamm administered "the HGN test, the 1 legged stand, and the walk and turn." H.T. at 5.
Officer John Lakits (Officer Lakits) of the Borough of Catasauqua testified:
As far as Mr. Hamm was concerned as everyone that gets brought into the DUI Center . . . they get read Section 1547, ask them to submit to a blood test. Mr. Hamm was told numerous times by myself [sic] and also different sheets that we fill out, as far as the refusal verification and report of refusal. He's still after time being asked, he still refused after stating he understood what I was talking about.H.T. at 12. Officer Lakits identified the packet of documents as "Section 1547, chemical test warnings . . . [t]hat is my handwriting . . . [a]nd I'm the one that asked Mr. Hamm to submit to a blood test." H.T. at 12-13. Officer Lakits emphasized that "this is just one of the sheets which we read . . . [w]e make sure that each defendant understands what we're telling him, and he did." H.T. at 13. DOT moved for admission of Exhibits A and B and rested.
Hamm demurred which was denied by the trial court. Hamm rested without testifying or offering any other evidence. H.T. at 21.
The trial court denied Hamm's appeal and concluded "[h]ere the Commonwealth [DOT] has established that the Appellant [Hamm] was arrested for driving under the influence of alcohol pursuant to 75 Pa. C.S.A. [sic] § 1547(b); was asked to submit to chemical testing; refused to do so; after he was specifically warned that a refusal would result in the revocation of his driver's license." Opinion of the Trial Court, June 19, 2012, at 8.
Essentially, Hamm, proceeding pro se, contends that Officer Goff did not have reasonable grounds to believe that he was operating his vehicle while under the influence, and that the trial court erred when it found that Hamm was properly informed of the consequences of his refusal to submit to chemical testing.
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).
In Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010), this Court stated:
The standard of reasonable grounds to support a license suspension is a lesser standard than the probable cause standard needed to support a DUI conviction . . . . The standard is not a demanding one . . . . Reasonable grounds exist 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 motorist was operating the vehicle while under the influence of an intoxicating substance . . . . This is determined by examining the totality of the evidence, including the location of the vehicle, whether the engine was running, whether there was evidence that the licensee had driven the vehicle before the arrival of the police, the licensee's general appearance, and the licensee's behavior . . . . Reasonable grounds do not require that other possible explanations or inferences that the officer could have made be unreasonable . . . . Whether reasonable grounds exist is a question of law reviewable by this court on a case-by-case basis. (citations omitted).
Hamm raises the following issues in his Statement of Questions Involved:
1. Did the Commonwealth of Pennsylvania [DOT] give Appellant [Hamm] proper information concerning consequences of refusing sobriety tests?Appellant's Brief, Statement of Questions Involved at 6. --------
2. Does the Commonwealth of Pennsylvania [DOT] have any evidence to substantiate that Appellant [Hamm] was under the influence of alcohol?
3. Did Officers Goff and Lakits follow normal procedures?
4. Were Officers Goff and Lakits certified to perform sobriety tests?
5. Did the Commonwealth of Pennsylvania follow protocol for license suspension and returns.
These issues were raised and argued before the trial court and ably disposed of in the comprehensive opinion of the Honorable Emil Giordano. Therefore, this Court shall affirm on the basis of that opinion. Lynn v. Hamm v. Commonwealth of Pennsylvania Department of Transportation, (No. C-48-CV-2011-2902), filed June 19, 2012.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 1st day of February, 2013, the order of the Court of Common Pleas of Northampton County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge