Opinion
No. 117 C.D. 2011
02-01-2012
John Richard Lubman, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
John Richard Lubman (Lubman) appeals the December 28, 2010, order of the Court of Common Pleas of Erie County (trial court) denying his appeal from the license suspension imposed by the Pennsylvania Department of Transportation (PennDOT) for refusing to submit to chemical testing. The issue before this Court is whether the trial court abused its discretion or committed reversible error in allowing the admission of hearsay evidence during Lubman's driver's license suspension hearing. For the reasons that follow, we affirm the order of the trial court.
On August 11, 2010, officers responded to a telephone call reporting that a pickup truck was running over stop signs. When the officers arrived at the scene, the woman who had reported the incident pointed to Lubman, who was standing in a nearby driveway next to a pickup truck, and explained that Lubman was driving the truck that had hit the stop signs. The officers approached Lubman and detected a strong odor of alcohol and observed that he was unsteady on his feet. A woman standing next to Lubman, who one of the officers believed was Lubman's girlfriend, told the officers that she had been in the pickup truck with Lubman when he purposely ran over the stop signs and that she took the keys. Lubman was asked to submit to a portable breath test and field sobriety test and refused. He was placed under arrest and transported to the local hospital. At the hospital, an officer read Lubman the O'Connell warnings from the DL-26 Form and asked him to submit to chemical testing, but he refused. He was then driven to the police station for processing.
The term "O'Connell warnings" refers to the Pennsylvania Supreme Court decision in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).
Form DL-26 outlines the consequences of refusing to submit to testing of a person's blood alcohol level, and includes the warning that refusal would result in suspension of a person's operating privileges for at least 12 months.
By letter dated September 2, 2010, PennDOT notified Lubman that his driving privileges would be suspended for eighteen months effective October 7, 2010. He appealed, and a hearing was held on December 28, 2010. The two female witnesses who spoke with police on the day of the incident were not present at the hearing, nor were they identified by name by the officers. Officer James Bielak, who was at the scene, testified that the woman who had initially reported the incident explained that Lubman was driving the vehicle that had hit the stop sign. Officer Bielak further testified that the woman he believed to be Lubman's girlfriend told him that Lubman was driving the pickup truck, and that it was no accident that Lubman was running over the stop signs. Lubman's attorney objected to Officer Bielak's testimony concerning the statements of the two female witnesses as hearsay, but the trial court overruled the objection. Subsequently, the trial court determined that PennDOT had met its burden of proof, and denied Lubman's appeal. Lubman appeals to this Court.
This Court's scope of review in a license suspension case is limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Orloff v. Dept. of Transp., Bureau of Driver Licensing, 912 A.2d 918 (Pa. Cmwlth. 2006). --------
In order to sustain a suspension of operating privileges for refusal to submit to chemical testing, PennDOT
must establish that 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 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. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999). There is no dispute that prongs two through four of the test were met. However, Lubman argues that the trial court erred by allowing PennDOT to offer inadmissible hearsay evidence to satisfy the first prong of its burden under Banner, i.e., to prove that the officers had reasonable suspicion to believe that Lubman was operating the pickup truck. We disagree.
"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 intoxicating liquor." Banner, 558 Pa. at 446, 737 A.2d at 1207. Furthermore, reasonable suspicion is not rendered ineffective simply because it is subsequently determined that the licensee was not driving. McKnight v. Department of Transportation, 549 A.2d 1356, 1358 (Pa. Cmwlth. 1988). Hence, "[r]easonable grounds exist if the officer could have concluded that the licensee drove the vehicle." Helt v. Dep't of Transp., Bureau of Driver Licensing, 856 A.2d 263, 266 (Pa. Cmwlth. 2004).
Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted," Pa.R.E. 801(c), and it is inadmissible unless it falls within one or more of the specified exceptions. Here, however, the statements made by witnesses that Lubman was driving the pickup truck were not offered to prove that he was actually driving the vehicle, but to show that the officers had reasonable suspicion to request that he submit to chemical testing. In Menosky v. Commonwealth, 550 A.2d 1372 (Pa. Cmwlth. 1988), the appellant's counsel objected to hearsay testimony concerning a non-testifying witness' statement that the appellant appeared to be intoxicated. The trial court judge ruled, and this Court affirmed, that the witness' statement was admissible as non-hearsay evidence for purposes of proving the state of mind of the arresting officer hearing the statement. "Thus, [PennDOT] may offer an out-of-court statement to explain why a police officer arrested a defendant." Menosky, 550 A.2d at 1374. Therefore, Officer Bielak's testimony concerning the statements made by the two female witnesses was properly admitted to prove that the officers had reasonable suspicion that Lubman was driving the pickup truck, and the trial court did not abuse its discretion or commit a reversible error.
For the reasons state above, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 1st day of February, 2012, the December 28, 2010 order of the Court of Common Pleas of Erie County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge