Opinion
No. 2372 C.D. 2011
07-05-2012
Kenneth Michael Schley v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the December 9, 2011, order of the Court of Common Pleas of Westmoreland County (trial court), which granted the license suspension appeal of Kenneth Michael Schley (Licensee) and reinstated his operating privilege. We reverse and reinstate the suspension of Licensee's operating privilege.
By notice dated August 29, 2011, DOT suspended Licensee's operating privilege. Licensee filed an appeal with the trial court, which held a hearing on December 9, 2011. At the hearing, Officer James Joseph Phillips and Corporal Albert J. Rivardo, III, of the City of Jeannette Police Department, testified.
Officer Phillips testified that, on July 6, 2011, he received a call about a hit-and-run in the area of 104 Magee Avenue in Jeannette. When the officer arrived at the scene, he encountered two vehicles, a Chevrolet pickup truck and a Dodge sedan, that had been involved in an accident. Officer Phillips checked the registration of both vehicles, and discovered that Licensee was the owner of the Chevrolet pickup truck. There were only three people at the scene, Licensee, the owner of the Dodge sedan, and Thomas Bell, who lived directly across the street from where the accident occurred. (N.T., 12/9/11, at 4-5, 9.)
The owner of the Dodge sedan is not named in the record.
Officer Phillips stated that he spoke to the owner of the Dodge sedan, which had been struck by Licensee's vehicle. Licensee approached Officer Phillips and told him that he had not been in his vehicle. Officer Phillips observed that Licensee had "the signs of being intoxicated; the slurred speech, glassed-over eyes, was being loud, obnoxious, and cursing." (Id. at 5.)
Officer Phillips further testified that he spoke with Bell, who told Officer Phillips that "[h]e observed [Licensee] strike the Dodge sedan with his pickup truck, place the vehicle into reverse and park [in] its' [sic] current position along Magee Avenue and exit the vehicle." (Id. at 11.) Officer Phillips asked Licensee "if he had consumed any amount of alcohol this evening, and he said that he did." (Id. at 12.) Corporal Rivardo then arrived on the scene, and the officers took Licensee "to an area of the roadway that was clear and level" in order to conduct field sobriety testing, which Licensee refused to perform. (Id.) The officers noted that Licensee "walked with a staggering gait" and "his appearance was disheveled." (Id.)
The officers arrested Licensee for DUI and placed him in the rear of a patrol vehicle. The officers informed Licensee that they were going to take him to Westmoreland Hospital for a blood test. Corporal Rivardo read the implied consent warnings to Licensee. Licensee refused to submit to a blood test, so the officers transported him to the Jeannette City Police Department. (Id. at 12-13.)
Officer Phillips agreed that Licensee did not admit that he was driving the Chevrolet pickup truck at the time of the accident. Officer Phillips only recalled that Licensee had told him that someone else was driving. Officer Phillips stated that he did not inquire about any other driver because there was no one else present at the scene and because Bell had told him that Licensee was the driver of the pickup truck. Officer Phillips stated that he treated Licensee's refusal to respond after the warnings were read as a refusal. (Id. at 14-16.)
Corporal Rivardo testified that he read Licensee the warnings twice and completed the DL-26 form. Corporal Rivardo advised Licensee that his silence would be taken as a refusal. Licensee asked Corporal Rivardo if he could speak to an attorney and Corporal Rivardo advised Licensee that he did not have a right to speak to an attorney. Licensee remained silent after that. (Id. at 25-26.)
Based upon the testimony and evidence presented, the trial court concluded that DOT had not proven that Licensee was actually driving or operating his vehicle, thus failing to prove that Licensee was actually operating a motor vehicle while under the influence of alcohol. The trial court sustained Licensee's appeal and reinstated his operating privilege. DOT now appeals to this court.
Our review 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 decision indicates a manifest abuse of discretion. Stahr v. Department of Transportation, Bureau of Driver Licensing, 969 A.2d 37, 39 n.2 (Pa. Cmwlth. 2009).
DOT argues that the trial court erred in sustaining Licensee's appeal because it applied an incorrect burden of proof. DOT claims that the trial court improperly required it to prove that Licensee was actually driving the vehicle while he was under the influence and did not permit Officer Phillips to reasonably rely upon a witness' statement that he observed Licensee driving the Chevrolet pickup truck when it struck the Dodge sedan.
Under section 1547(a) of the Vehicle Code, any person who drives, operates or is in actual physical control of the movement of a motor vehicle shall be deemed to have given consent to chemical testing if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol. 75 Pa. C.S. §1547(a)(1).
The trial court determined:
In the case at bar, DOT offered evidence, in the form of out of court statements by a third party, to establish reasonable grounds for belief by the officer that the licensee was driving at the time. I admitted this evidence, over hearsay objection by the licensee, for the limited purpose of proving
the state of mind of the officer. Those same statements, however, constitute pure hearsay and are inadmissible to prove the element that the licensee was in fact driving or operating a vehicle. Proof of that fact is necessary to trigger his deemed consent to chemical testing. Under the statute, licensure alone does not constitute deemed consent. Licensure combined with driving is prescribed by the above statute as the basis for deeming consent.(Trial Ct. Op. at 2.) The trial court was incorrect in determining that DOT must prove that Licensee was, in fact, driving or operating the vehicle.
I found that the element of driving was not proven by DOT.
In Duffy v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 6, 9 (Pa. Cmwlth. 1997) (citation omitted), we stated:
Hearsay is "an out of court [statement] offered to prove the truth of the fact asserted [in the statement]." However, if the out-of-court statement is offered not to prove the truth of the statement made by the out-of-court declarant, but instead to prove that the statement was in fact made, the out-of-court statement is not hearsay regardless of who made it or how it was reported to the witness.
In McCullough v. Department of Transportation, 645 A.2d 378, 380 (Pa. Cmwlth. 1994), this court held that DOT was not required to present the testimony of a third party that provided a police officer with information about a licensee in order to establish reasonable grounds to believe that the licensee was driving under the influence of alcohol. This court pointed out that, if DOT fails to present the third party as a witness, the trial court may find the officer not credible and not accept his testimony as fact. Id. at 380-81.
The trial judge in these license suspension cases does not sit as an automaton required to accept as credible everything to which an arresting officer testifies on the stand. He is the fact-finder and is free to accept or reject any testimony in whole or in part, subject only to review by this Court for an abuse of discretion. In this case, it is clear from the opinion of the court that the trial judge did not "accept the officer's testimony." . . . . In sum, we hold that although DOT is not required to produce a third party witness, not doing so may increase the risk of a finding by the fact-finder that the officer's testimony will not be accepted and, consequently, a finding that DOT will not prevail.Id.
Here, the trial court did not find Officer Phillips incredible. It only determined that Officer Phillips could not rely upon the witness statement to prove Licensee was driving. Moreover, the out-of-court statement was introduced only to prove that the statement was, in fact, made. In other words, the fact that Bell actually told Officer Phillips that Licensee was driving the pickup truck is the relevant point with respect to that statement, as that fact provides part of the basis for Officer Phillips' subsequent actions. Ultimately, it is the reasonableness of Officer Phillips' belief that Licensee was driving the vehicle while intoxicated that is the issue in this case.
Licensee does not contend that he was not intoxicated at the time of the accident, only that DOT failed to prove that he was driving the vehicle. --------
Whether reasonable grounds exist is a question of law reviewable by the court on a case-by-case basis. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 447, 737 A.2d 1203, 1207 (1999).
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.Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010) (citations omitted). "[T]here is no requirement that a police officer must actually observe the driver operating the motor vehicle." Polinsky v. Department of Transportation, 569 A.2d 425, 427 (Pa. Cmwlth. 1990).
Here, Officer Phillips arrived at the scene to find two vehicles that had been involved in an accident and three people: Licensee, the driver of the sedan, and Bell, who lived directly across the street from where the accident occurred. The officer checked the vehicles' registrations and found Licensee to be the owner of the pickup truck that was involved in the accident. The officer further testified that Bell informed him that he saw Licensee hit the sedan, back up, park his vehicle, and then get out of the driver's side of the vehicle. The officer observed that Licensee had "the signs of being intoxicated; the slurred speech, glassed-over eyes, was being loud, obnoxious, cursing." (N.T., 12/9/11, at 5.) Clearly, Officer Phillips, viewing the facts and circumstances as they appeared at the time, could have reasonably concluded that Licensee was operating his vehicle while intoxicated. Therefore, the trial court erred in holding that Officer Phillips did not have reasonable grounds to believe Licensee was driving while intoxicated.
Accordingly, we reverse the trial court's order and reinstate the suspension of Licensee's operating privilege.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 5th day of July, 2012, we reverse the December 9, 2011, order of the Court of Common Pleas of Westmoreland County in the above-captioned matter, and we reinstate the suspension of Kenneth Michael Schley's operating privilege.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge