Opinion
No. 2072 C.D. 2011
11-09-2012
Richard Raymer, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Richard Raymer (Licensee) appeals from the Order of the Court of Common Pleas of Lackawanna County (trial court), which denied his statutory appeal of the one-year suspension of his operating privileges imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Bureau) under Section 1547(b) of the Vehicle Code (Code), 75 Pa. C.S. § 1547(b). On appeal, Licensee argues that the trial court erred in denying his appeal because the Bureau did not produce competent evidence to establish the requisite statutory elements necessary to uphold Licensee's license suspension. Specifically, Licensee asserts that the Bureau did not prove that Licensee was formally arrested before he was asked to submit to a chemical test or that Licensee was read the Implied Consent warnings at the Lackawanna County DUI testing center (DUI Center). Because we conclude that the record supports the determination that the Bureau met its burden of proving the statutory elements to support Licensee's license suspension, we affirm.
Section 1547(b) authorizes the Bureau to suspend a licensee's operating privileges for at least one year if the licensee refuses to submit to chemical testing after he has been arrested under the suspicion of operating a vehicle under the influence of alcohol or a controlled substance.
On July 28, 2010, Licensee refused to submit to chemical testing of his blood at the DUI Center. Notice of this refusal was transmitted to the Bureau and, on September 3, 2010, the Bureau notified Licensee that his driving privileges would be suspended for one year due to a violation of Section 1547(b)(1)(i) for refusing to take a chemical test on July 28, 2010. (Notice of Suspension, R.R. at 7a.) Licensee filed a "Petition for Appeal from a Suspension of Operating Privilege/Denial of Driver's License/Suspension of Motor Vehicle Registration" (Petition) with the trial court to appeal the suspension. (Petition, R.R. at 4a-5a.) The trial court set a hearing for December 22, 2010. (Order, October 1, 2010, R.R. at 3a.) At the hearing, Robert Heggedus (Officer Heggedus) and David Burrier (Officer Burrier) testified.
The trial court's Opinion refers to Officer Heggedus as Robert Higgins, but the parties and the record refer to him as Robert Heggedus.
Officer Heggedus testified that, on July 28, 2010, he was working a special traffic detail and pulled over Licensee for a traffic violation because the frame around Licensee's license plate obstructed the website address and the word "Pennsylvania." Officer Heggedus stated that he had no reason to believe Licensee was driving under the influence of alcohol or a controlled substance when he conducted the traffic stop. Officer Heggedus indicated that, after having a discussion with Licensee and checking Licensee's registration, he returned to Licensee's vehicle, asked Licensee to exit the vehicle so that he could show Licensee the license plate violation, and warn Licensee that he had five days to remove the frame obstruction. Officer Heggedus testified that it was during this conversation that he noticed the smell of alcohol and a menthol cough drop. Officer Heggedus then asked Licensee to perform field sobriety tests, and Licensee agreed. Officer Heggedus testified that he administered the horizontal gaze nystagmus test, the walk and turn test, and one-leg stand test, all of which Licensee failed. (Hr'g Tr. at 3-7, 13, 15, R.R. at 11a-15a, 21a, 23a.)
Officer Heggedus explained that, after Licensee failed the field sobriety tests, he asked Licensee to submit to a chemical blood test at the DUI Center because he believed that Licensee was operating his vehicle under the influence of either alcohol or a controlled substance. Upon inquiry, Licensee admitted to taking a Vicodin tablet and consuming a can of beer. Officer Heggedus testified that Licensee was cooperative and agreed to participate in the chemical test. When Licensee agreed to the chemical test, Officer Heggedus did not read him any Implied Consent warnings. Officer Heggedus stated that he then placed Licensee under arrest for "being suspect to operating his vehicle under the influence." Officer Heggedus handcuffed Licensee behind his back and advised Licensee that he was being charged with driving under the influence. The Scranton Police Department then transported Licensee to the DUI Center. (Hr'g Tr. at 7-9, 17, 19, R.R. at 15a-17a, 25a, 27a.)
Officer Burrier, who works at the DUI Center, testified regarding his interaction with Licensee at the DUI Center. Officer Burrier stated that he read Licensee the Implied Consent warnings because he signed the DL-26 Form, circled all four paragraphs of the Implied Consent warnings, and Licensee signed the form acknowledging that Officer Burrier read him the warnings. Officer Burrier explained that after he read the warnings to Licensee, he asked Licensee to submit to a blood test, which Licensee refused. On cross-examination, Officer Burrier acknowledged that he did not recall Licensee specifically, but that he refreshed his recollection with the DL-26 Form he completed during Licensee's processing. Officer Burrier testified that, when any licensee is processed at the DUI Center, they are read the Implied Consent warnings in person. Officer Burrier also stated that the affidavit section of the DL-26 Form is filled out immediately after the completion of a licensee's processing. Therefore, Officer Burrier testified that his signature on the DL-26 Forms' affidavit acknowledges that he read Licensee the warnings and Licensee refused to submit to the chemical test. (Hr'g Tr. at 21, 23-28, R.R. at 29a, 31a-36a.)
Licensee presented no evidence in support of his appeal. The trial court credited the testimony of Officer Heggedus and Officer Burrier, noting that Licensee did not produce any evidence to contradict that testimony. Based on that testimony, the trial court found that Officer Heggedus had reasonable grounds to stop Licensee for the license plate obstruction and also had reasonable grounds to believe that Licensee was operating his vehicle under the influence of alcohol or a controlled substance. The trial court further found that Licensee was arrested, informed of the penalties for failure to submit to a chemical test, asked to submit to the test, and refused. Accordingly, the trial court denied Licensee's license suspension appeal. (R.R. at 54a.) Licensee now appeals to this Court.
"Our . . . review of a license suspension case . . . is limited to determining whether necessary findings of the trial court are supported by substantial evidence and whether the trial court committed an error of law or abused its discretion." Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 n.6 (Pa. Cmwlth. 2005). --------
Licensee argues that the Bureau failed to produce competent evidence to establish all the statutory elements necessary to uphold his license suspension. Pursuant to Section 1547(b)(a)(i), a one year driver's license suspension for a refusal to take a chemical test is supported if:
1) the licensee was arrested for violating Section 3802 [driving under the influence]; 2) by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while in violation of Section 3802; 3) that the licensee was requested to submit to a chemical test; 4) that the licensee refused to do so; and 5) that the police officer fulfilled the duty imposed by 75 Pa. C.S. § 1547(b)(2) by advising the licensee that his operating privileges would be suspended if he refused to submit to chemical testing and that, in the event the licensee pleaded guilty or nolo contendere to or was found guilty of violating 75 Pa. C.S. § 3802(a)(1) after refusing testing, the licensee would be subject to the penalties set forth in 75 Pa. C.S. § 3804(c).Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007) (emphasis added).
We first consider Licensee's assertion that he was not placed under arrest before being asked to submit to chemical testing and, therefore, his license suspension was improper. "An arrest for purposes of Section 1547 has been defined as any act that indicates an intention to take a person into custody and subjects that person to the actual control and will of the arresting officer." Nornhold v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 59, 62 (Pa. Cmwlth. 2005) (citing Glass v. Department of Transportation, Bureau of Traffic Safety, 460 Pa. 362, 366, 333 A.2d 768, 770 (1975)). As the Bureau notes in its brief, a formal arrest is not required to satisfy Section 1547's "arrest" requirement. Id.
In this case, two different officers asked Licensee to submit to a chemical test; the first time was after Officer Heggedus stopped him, and the second time was at the DUI Center by Officer Burrier. While Licensee initially appeared to agree to submit to the test, he refused after arriving at the DUI Center. Because Licensee did not refuse to submit to Officer Heggedus' request, the Section 1547 requirements for license suspension were not yet triggered; therefore, whether Licensee was under arrest at that time is not relevant to the license suspension. Rather, Section 1547 was implicated when Licensee refused Officer Burrier's subsequent request to submit to a chemical test at the DUI Center. Prior to this request, Officer Heggedus had handcuffed Licensee's hands behind his back, arrested Licensee for suspicion of operating his vehicle under the influence, and had Licensee transported to the DUI Center for chemical testing. Therefore, when Licensee refused Officer Burrier's request, Licensee was undoubtedly in the custody and under the control of the police such that Section 1547(b)(1)'s "arrest" requirement was satisfied.
We next consider Licensee's argument that Officer Burrier's testimony that he read Licensee the Section 1547 Implied Consent warnings was insufficient to meet the Bureau's burden of proof due to Officer Burrier's inability to independently remember his interaction with Licensee.
This Court cannot "make new or different findings of fact." Reinhart v. Department of Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008). We "may only review the trial court's findings to determine if they are supported by substantial, competent evidence." Id. Furthermore, "the trial court may accept or reject the testimony of any witness in whole or in part." Id. "[W]hether there is substantial competent evidence to support the trial court's factual determination . . . is a question of law reviewable by this court." Dailey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 772, 774 (Pa. Cmwlth. 1999). Under its broad fact finding discretion, the trial court found Officer Burrier's testimony credible, and Licensee did not produce any evidence to contradict that testimony. Thus, we must determine whether Officer Burrier's testimony provided "substantial, competent evidence" that he read Licensee the Implied Consent warnings.
In Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380, 385 (Pa. Cmwlth. 2010), the arresting officer testified that he could not specifically recall reading the licensee the Implied Consent warnings. However, he testified that it was his habit to warn individuals arrested for DUI about the civil consequences of declining to take a chemical test, and signed an affidavit indicating that the warnings were read. Id. Despite the arresting officer's lack of recollection, this Court determined that, in a license suspension matter, an officer's testimony of habit, or an affidavit indicating that the officer read those warnings to the licensee is sufficient evidence to support a trial court's finding that a licensee was properly read the Implied Consent warnings. Id.
After reviewing the record, we conclude that Gammer controls and that Officer Burrier's testimony is substantial and competent evidence to show that he read Licensee the Implied Consent warnings despite the fact that he could not specifically remember speaking with Licensee. Similar to the police officer in Gammer, Officer Burrier testified that his recollection was refreshed by his review of the DL-26 Form that he had completed and signed, by his signed affidavit, and by his habit of completing the form and affidavit only after complying with the standard operating procedures. Officer Burrier testified that, when a licensee is processed through the DUI Center, it is standard operating procedure to read the Implied Consent warnings on the DL-26 Form, make sure the licensee understands the meaning of the warnings, and then ask the licensee to submit to chemical tests. Furthermore, Officer Burrier testified that he read Licensee the Implied Consent warnings on the DL-26 Form because he had circled all four paragraphs on the form and the form bore Licensee's signature, which Officer Burrier testified indicated that Licensee acknowledged the fact that he was read the warnings. After Officer Burrier read Licensee the Implied Consent warnings, he asked Licensee to submit to a chemical test, and Licensee refused. Officer Burrier further testified that he would have filled out the affidavit section right after the processing. Officer Burrier's signature on the affidavit further indicates that Licensee was read the warnings, but still refused to submit to chemical testing. Under Gammer, the signed affidavit alone would be sufficient evidence to indicate that Licensee was read the Implied Consent warnings. Therefore, the trial court did not err in relying on Officer Burrier's testimony to find that the Bureau met its burden of proving that Licensee was read the Implied Consent warnings prior to his refusal.
Accordingly, we affirm the order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 9, 2012, the Order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge