Opinion
No. 2171 C.D. 2013
07-16-2014
Nathan Bankes, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Nathan Bankes (Licensee) appeals from the Order of the Court of Common Pleas of Dauphin County (trial court) dismissing his appeal and reinstating the Department of Transportation, Bureau of Driver Licensing's (Department) suspension of his operating and commercial driving privileges pursuant to Sections 1547(b)(1)(ii) and 1613 of the Vehicle Code for refusing to submit to a chemical test. On appeal, Licensee argues that the trial court erred when it determined that the arresting officer possessed reasonable grounds that Licensee had operated or was in physical control of a vehicle while under the influence of alcohol. Discerning no error, this Court affirms.
75 Pa. C.S. § 1547(b)(1)(ii). Section 1547(b)(1)(ii) provides, in relevant part:
(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;
75 Pa. C.S. § 1613. Section 1613 provides, in relevant part, as follows:
(a) Implied consent.--A person who drives a commercial motor vehicle in this Commonwealth is deemed to have given consent to take a test or tests of the person's breath, blood or urine for the purpose of determining the person's alcohol concentration or the presence of other controlled substances.
. . . .
(d.1) Disqualification for refusal.--Upon receipt of a report of test refusal, the department shall disqualify the person who is the subject of the report for the same period as if the department had received a report of the person's conviction for violating one of the offenses listed in section 1611(a) (relating to disqualification [for a violation of Section 3802]). . . .
By notices mailed May 2, 2013, the Department notified Licensee that it was suspending his operating privilege for eighteen months and disqualifying his commercial driving privilege for twelve months pursuant to Sections 1547(b)(1)(ii) and 1613 of the Vehicle Code for failing to submit to a chemical test on March 30, 2013. Licensee appealed the suspensions and a de novo hearing was held before the trial court.
During the hearing, the Department presented the testimony of Sergeant David Frantz, who was the only witness to testify. Based on Sergeant Frantz's testimony, the trial court found as follows. On March 29, 2013, Sergeant Scott Young reported to the police department that a truck was positioned on the side of the road by a bridge construction site. (Trial Ct. Op. at 2.) Sergeant Young was worried that someone was stealing supplies and equipment from the construction site. (Trial Ct. Op. at 3.) After the police department received Sergeant Young's report, Sergeant Frantz was dispatched to investigate the matter. (Trial Ct. Op. at 3.) Upon arriving at the construction site at 11:44 pm, Sergeant Frantz observed Licensee standing outside of a blue, Ford F150 truck, looking over the damage to the vehicle. (Trial Ct. Op. at 3.) The vehicle had struck four construction barrels and a crash attenuator. (Trial Ct. Op. at 3.) When Sergeant Frantz asked Licensee about what happened, Licensee said he had not seen the barrels. (Trial Ct. Op. at 3.) Licensee also stated he was alone. (Trial Ct. Op. at 3.) During their conversation, Licensee was unsteady with his footing and showed signs of intoxication, such as "red, glassy eyes" and slurred speech. (Trial Court Op. at 3.)
Thereafter, Licensee produced proof of insurance and registration for the vehicle. (Trial Ct. Op. at 3.) Sergeant Frantz also administered a variety of field sobriety tests. (Trial Ct. Op. at 4.) Prior to and during each test, Licensee showed visible signs of intoxication. (Trial Ct. Op. at 4-5.) As a result, Sergeant Frantz arrested Licensee for driving under the influence of alcohol and transported him to the Harrisburg Hospital for him to submit to a chemical test. (Trial Ct. Op. at 5.)
Licensee "lost his balance" while Sergeant Frantz instructed him on how to perform the walk-and-turn test. (Trial Ct. Op. at 4.) Licensee also swayed side-to-side when Sergeant Frantz instructed him on how to perform the finger-to-nose test. (Trial Ct. Op. at 4.) While Licensee performed the walk-and-turn test, he skipped steps and took a large turn. (Trial Ct. Op. at 4.) When tasked with counting, "1, 2, 3, 4, 4, 3, 2, 1" while touching his finger with the tip of his thumb, Licensee missed his ring finger and had trouble remembering what number he was on. (Trial Ct. Op. at 5.)
Before administering the chemical test, Sergeant Frantz read the DL-26 consent form to Licensee at least three times. (Trial Ct. Op. at 5.) Despite the DL-26 form explaining to Licensee that he did not have the right to consult an attorney, Licensee refused to sign the DL-26 form and submit to the chemical test without first consulting an attorney. (Trial Ct. Op. at 5-6.) Sergeant Frantz then took Licensee to the booking center and processed him. (Trial Ct. Op. at 6.)
After the hearing concluded, the trial court issued an Order that dismissed Licensee's appeal and reinstated the Department's suspension of Licensee's operating and commercial driving privileges. (Trial Ct. Op. at 6.) In its 1925(a) opinion in support of its Order, the trial court stated that it found Sergeant Frantz's testimony credible and determined that the totality of the circumstances provided Sergeant Frantz with reasonable grounds that Licensee had operated or was in physical control of a vehicle while under the influence of alcohol. (Trial Ct. Op. at 7.) The trial court was persuaded by Sergeant Frantz's testimony that Sergeant Frantz found Licensee close to a truck alongside a road; that Licensee crashed his vehicle into four construction barrels and a crash attenuator; that Licensee was the only person in the vehicle at the time; and that Licensee was intoxicated. (Trial Ct. Op. at 7.) Accordingly, the trial court determined that "the reasonable grounds standard was satisfied because a person in the place of Sergeant Frantz could have concluded that [Licensee] was operating the truck while under the influence of alcohol." (Trial Ct. Op. at 7.) Licensee now appeals the trial court's Order to this Court.
"Our standard of review in a license suspension case is to determine whether the trial court's findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determinations demonstrate a manifest abuse of discretion." Department of Transportation v. Renwick, 669 A.2d 934, 936 n.2 (Pa. 1996) (citation omitted). --------
When operating and commercial driving privilege suspensions are under review, the Department must prove 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) (citations omitted); see also Osselburn v. Department of Transportation, Bureau of Driver Licensing, 970 A.2d 534, 538-39 (Pa. Cmwlth. 2009) (applying the same four factor test for a suspension of commercial driving privilege pursuant to Section 1613 of the Vehicle Code). The legal question of whether reasonable grounds exist is "reviewable by the court on a case by case basis." Banner, 737 A.2d at 1207. "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. When determining if reasonable grounds exist, the trial court may consider facts such as "the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police." Id.
Before this Court, Licensee argues that the trial court erred when it determined that Sergeant Frantz possessed reasonable grounds that Licensee had operated or was in physical control of a vehicle while under the influence of alcohol. In support of his argument, Licensee relies on the Pennsylvania Supreme Court's decision in Banner and claims the totality of the circumstances infers that Licensee had neither operated nor was in physical control of a vehicle while under the influence of alcohol. Specifically, Licensee argues the record lacks "'objective evidence that [he] exercised control over the movement of the vehicle at the time he was intoxicated.'" (Licensee's Br. at 11 (quoting Banner, 737 A.2d at 1207) (emphasis in original).) Licensee claims that neither Sergeant Young nor Sergeant Frantz witnessed him operating or in physical control of the truck. Licensee also claims there is no evidence that the truck engine was running or even operable.
In Banner, a police officer required the licensee to submit to a chemical test after he found him asleep at 4:00 a.m. in a reclined position within his vehicle on the side of the road. Banner, 737 A.2d at 1207. When the police officer encountered the vehicle, the lights and engine were turned off, but the licensee had left the keys in the ignition. Id. The Supreme Court held that the totality of circumstances did not provide the police officer with reasonable grounds that the licensee was in physical control of the vehicle while he was intoxicated. Id. The Supreme Court emphasized the need to "distinguish circumstances where a motorist is driving his vehicle while under the influence of alcohol . . . and circumstances where a motorist is physically present in a motor vehicle after becoming intoxicated." Id. at 1208. Accordingly, the Supreme Court held that the police officer lacked reasonable grounds because the only evidence that supported the claim that the licensee had operated or was in physical possession of a vehicle while under the influence of alcohol was the fact that the car was parked on the side of the road. Id.
Licensee's current situation, however, is distinguishable from the fact pattern in Banner. Unlike the situation in Banner, there is evidence, in addition to Sergeant Frantz finding the truck on the side of a road, which supports his decision to request that Licensee submit to a chemical test.
According to Sergeant Frantz's credible testimony, the truck had struck four construction barrels and a crash attenuator prior to Sergeant Frantz arriving at the scene. (Trial Ct. Op. at 3.) Upon arriving, Sergeant Frantz found Licensee standing outside of the truck, looking over the damage to the vehicle. (Trial Ct. Op. at 3.) When Sergeant Frantz asked Licensee about what happened, Licensee acknowledged that he was alone and had not seen the barrels. (Trial Ct. Op. at 3.) Licensee also produced proof of insurance and registration for the vehicle. (Trial Ct. Op. at 3.) In addition to the evidence of Licensee operating the vehicle, Sergeant Frantz detected a "strong smell of alcohol" on Licensee's breath. (Trial Ct. Op. at 4.) Licensee also appeared "unsteady with his footing" and showed signs of intoxication, such as "red, glassy eyes" and slurred speech. (Trial Ct. Op. at 3.) Under the totality of the circumstances, these facts provided Sergeant Frantz with reasonable grounds to believe that Licensee had operated the vehicle while he was under the influence of alcohol.
Licensee is correct that a police officer in a similar situation could have interpreted the facts to believe Licensee left the construction site after the accident, drank, and returned to the construction scene. However, this interpretation of the facts does not mean Sergeant Frantz did not possess reasonable grounds to believe that Licensee operated the vehicle while under the influence of alcohol under the facts as found by the trial court. The reasonable grounds standard "is not a demanding one." Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010) (citation omitted). The Department did not have to prove that other possible explanations for Licensee's conduct were unreasonable. Id. The Department was only required to produce "some objective evidence that the motorist exercised control over the movement of the vehicle at the time he was intoxicated." Banner, 737 A.2d at 1207 (citation omitted). Based on Sergeant Frantz's credible testimony, the Department met its burden.
Accordingly, we conclude that the trial court did not err in holding that Sergeant Frantz possessed reasonable grounds that Licensee had operated or was in physical control of a vehicle while under the influence of alcohol to require him to submit to a chemical test.
For the forgoing reasons, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 16, 2014, the Order of the Court of Common Pleas of Dauphin County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Id.
Section 3802 of the Vehicle Code provides, in relevant part, as follows:
(a) General impairment.—
75 Pa. C.S. § 3802(a)(1).(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.