Opinion
No. 55 C.D. 2015
07-09-2015
Kathleen Mulder, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Kathleen Mulder (Licensee) appeals from the December 18, 2014, order of the Court of Common Pleas of York County (trial court), dismissing Licensee's appeal from the Department of Transportation, Bureau of Driver Licensing's (DOT) suspension of her operating privilege pursuant to section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. §1547(b)(1), for refusing to submit to chemical testing. We affirm.
Shortly before 6:00 a.m. on September 3, 2014, Officer Timothy Dehoff of the Fairview Township Police Department pulled into a gas station and noticed Licensee's car parked perpendicular to the curb in a no-parking area. (Trial Ct. Op. at 1-2, 4.) The engine of Licensee's vehicle was off. (Id. at 4.) Officer Dehoff observed that Licensee, the sole occupant of the vehicle, was in the driver's seat and slumped over the steering wheel. (Id. at 2.) Officer Dehoff then spoke with a gas station employee, who told Officer Dehoff that Licensee's vehicle was not in its present location when the employee started his shift at approximately 5:00 a.m. that morning. (Id.) Based on the employee's statement, Officer Dehoff determined that Licensee's vehicle had arrived within the last hour. (Id.)
When Officer Dehoff knocked on the vehicle's window, Licensee woke up, appearing startled. (Id.) Licensee removed the keys from the ignition and opened the driver's side door, at which point Officer Dehoff immediately smelled alcohol. (Id.) Licensee, who admitted that she had been driving her vehicle, had difficulty answering simple questions, had red, glassy eyes, and her breath and body smelled of alcohol. (Id. at 2-3.) Officer Dehoff did not notice any alcohol containers or intoxicants in Licensee's vehicle, although he did not conduct a full search of the vehicle. (Id. at 11.) Licensee was not sure where she was, but she believed she was somewhere in Harrisburg. (Id. at 3.) Licensee agreed to take four field sobriety tests, all of which she failed. (Id.) Licensee refused to take a preliminary breath test without first speaking to an attorney. (Id.)
Officer Dehoff placed Licensee under arrest for driving under the influence of alcohol (DUI), placed her in the back seat of his vehicle, and informed her of his intent to take her to York Memorial Hospital for chemical testing. (Id.) With the camera in his vehicle recording both audio and video, Officer Dehoff read Licensee the DL-26 form, which contains the implied consent warnings. (Id.) Licensee refused to take any test without first speaking to an attorney. (Id.) Officer Dehoff then re-read the DL-26 form to Licensee, but she again refused to submit to chemical testing. (Id. at 4.) Officer Dehoff then transported Licensee to the York County Booking Center for processing. (Id.)
On September 12, 2014, DOT suspended Licensee's operating privilege for one year, effective October 17, 2014, for her refusal to submit to chemical testing. Licensee appealed to the trial court, which held a de novo hearing on December 17, 2014, at which only Officer Dehoff testified. On December 18, 2014, the trial court affirmed DOT's suspension of Licensee's operating privilege. Licensee now appeals to this court.
Our scope of review on appeal from a suspension of a licensee's operating privilege is limited to determining whether the trial court's decision is supported by substantial evidence, whether there has been an error of law, or whether the trial court manifestly abused its discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009).
On appeal, Licensee argues that the trial court erred in determining that Officer Dehoff had reasonable grounds to believe that Licensee had operated or controlled her vehicle while under the influence of alcohol. We disagree.
Section 1547(b)(1) of the Code mandates the suspension of a person's operating privilege for refusing to submit to chemical testing, stating in relevant part:
If any person placed under arrest for a violation of section 3802 [DUI] 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, [DOT] shall suspend the operating privilege of the person . . . .75 Pa. C.S §1547(b)(1). If the licensee appeals the suspension:
DOT 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 [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. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999) (emphasis added).
"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." Id. at 1207. "[T]he standard for reasonable grounds is not very demanding and the police officer need not be correct in his belief that the motorist had been driving while intoxicated." Sisinni v. Department of Transportation, Bureau of Driver Licensing, 31 A.3d 1254, 1259 (Pa. Cmwlth. 2011). "To determine if this standard is met, the court must consider the totality of the circumstances, including the location of the vehicle, whether the engine was running, and whether there was other evidence indicating that the motorist had driven the vehicle." Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth. 2010). "'[A]t the very least, there must be some objective evidence that the motorist exercised control over the movement of the vehicle at the time he was intoxicated.'" Id. (citation omitted).
Here, Officer Dehoff saw Licensee alone in her vehicle, which was parked at an unusual angle in a no-parking area. Although the vehicle's engine was off, Licensee was in the driver's seat with the keys in the ignition. Based on the gas station employee's statement, Officer Dehoff determined that Licensee had, at the latest, operated her vehicle one hour prior to Officer Dehoff's arrival. Licensee's red, glassy eyes, odor of alcohol, and difficulty answering simple questions indicated that she was intoxicated. This inference was further supported by the fact that Licensee failed all four field sobriety tests. Based on these factors, and because he did not notice any alcohol containers in Licensee's vehicle, Officer Dehoff determined that it was unlikely that Licensee consumed alcohol after parking at the gas station. Therefore, we agree with the trial court that based on the totality of the circumstances, Officer Dehoff had reasonable grounds to believe that Licensee had operated or controlled her vehicle while under the influence of alcohol.
Although Licensee argues that Officer Dehoff's testimony regarding the employee's statement was hearsay, Licensee's counsel did not object to this testimony. Furthermore, DOT "need not present the testimony of third parties who provide an officer with information needed to establish reasonable grounds for requesting that a licensee submit to a chemical test." Spera v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d 1236, 1238 n.2 (Pa. Cmwlth. 2003). Therefore, the trial court did not err in accepting Officer Dehoff's testimony about the employee's statement. --------
In arguing that Officer Dehoff did not have reasonable grounds to request chemical testing, Licensee compares the facts of this case to those in Banner. In that case, a police officer found the licensee asleep in the passenger seat of the licensee's vehicle, which was parked alongside the road with the lights, ignition, and engine off. Banner, 737 A.2d at 1204. After the licensee failed a field sobriety test and refused chemical testing, the police officer arrested him. Id. at 1204-05. The Pennsylvania Supreme Court concluded that the police officer did not have reasonable grounds to believe that the licensee had operated or had control over his vehicle while intoxicated. Id. at 1207. The Supreme Court noted that there was no indication that the licensee had recently operated the vehicle. Id. at 1208 n.6.
Here, unlike the police officer in Banner, Officer Dehoff had reason to believe that Licensee had recently operated or controlled her vehicle based on the gas station employee's statement. Moreover, unlike the licensee in Banner, Licensee was in the driver's seat and parked at an unusual angle in a no-parking area.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 9th day of July, 2015, we hereby affirm the December 18, 2014, order of the Court of Common Pleas of York County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge