Opinion
No. 1762 C.D. 2011
07-06-2012
Dexter McGahee, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Dexter McGahee (Licensee) appeals from the August 16, 2011, order of the Court of Common Pleas of Monroe County (trial court), which denied his appeal from a one-year suspension of his driver's license imposed by the Department of Transportation, Bureau of Driver Licensing (DOT) pursuant to section 1547(b) of the Vehicle Code. We affirm.
Section 1547(b) of the Vehicle Code, commonly referred to as the "Implied Consent Law," authorizes the suspension of a licensee's driving privileges where the licensee is placed under arrest for driving under the influence of alcohol and refuses a police officer's request to submit to chemical testing. 75 Pa. C.S. §1547(b).
On December 30, 2010, Patrolman Keith Eichler of the Pocono Mountain Regional Police Department responded to the scene of a single-vehicle accident, where he encountered Licensee and his wife, Dawn McGahee, standing next to their car, and Janine Schutz, a witness to the accident. After speaking to each of them, Officer Eichler advised Licensee that he was being placed under arrest for DUI and asked him to submit to chemical testing. Licensee did not submit to a chemical test, and, on January 26, 2011, DOT notified Licensee that his driving privileges would be suspended for one year pursuant to section 1547(b) of the Vehicle Code. Licensee filed a timely appeal of the suspension, and the trial court held a de novo hearing on June 8, 2011.
Officer Eichler testified that Ms. Schutz described the accident to him in detail, stating that she witnessed the vehicle go out of control, veer left, then strike the median, ride up the embankment, and finally come to rest on the shoulder of the roadway. She also saw another car stop briefly beside the McGahees' vehicle and then drive away. Ms. Schutz told Officer Eichler that she observed a male get out of the driver's seat and a female exit the passenger side of the car. Noting that Licensee is approximately six inches taller than Mrs. McGahee, Officer Eichler testified that he found the driver's seat positioned all the way back and that Mrs. McGahee's feet were about six inches away from the pedals when she re-entered the driver's seat. (Reproduced Record (R.R.) at 9-11, 20.)
Licensee's reproduced record is not numbered in Arabic figures followed by a small "a" as required by Pa.R.A.P. 2173.
Officer Eichler further testified that when he spoke with Licensee he detected the odor of alcoholic beverage coming from Licensee's person and he asked Licensee to perform a series of field sobriety tests. Based on Licensee's poor performance, Officer Eichler asked Licensee to take a portable breathalyzer test. Licensee agreed; Officer Eichler then took Licensee into custody for suspicion of DUI and read him the implied consent form (DL-26 form). Officer Eichler said that Licensee did not sign the form after the first reading, instead asking for a lawyer, but Licensee did sign the form upon the second reading after he was taken to headquarters. Officer Eichler testified that he next asked Licensee to submit to a chemical blood test, but Licensee said "no," and repeatedly stated "no, I wasn't driving." On cross-examination, Officer Eichler testified that both McGahees urged him to find the driver who had stopped at the accident site in order to verify which of them had been driving, adding that each of the McGahees provided him a distinctly different description of the car and its driver. (R.R. at 11-19, 21-25.)
In Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989), our Supreme Court held that the police must provide sufficient warnings to motorists who are asked to submit to chemical testing. Pursuant to O'Connell: (1) the motorist must be informed that his or her driving privileges will be suspended for one year if chemical testing is refused; and (2) the motorist must be informed that his or her rights under Miranda v. Arizona, 384 U.S. 436 (1966), do not apply to chemical testing. The warnings provided by DOT Form DL-26 satisfy the minimum requirements for a proper O'Connell warning. Department of Transportation, Bureau of Driver Licensing v. Ingram, 516 Pa. 364, 532 A.2d 775 (1994); Kolaczynski v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 522 (Pa. Cmwlth. 1995).
Dawn McGahee testified that she was the driver of the vehicle and had spoken to her daughter on the way to dinner at Mount Airy Lodge. She described how the accident occurred, and she claimed that Ms. Schutz did not arrive at the scene of the accident until two or three minutes later. According to Mrs. McGahee, during that time, she and her husband had frantically exited the smoking car, and her husband then re-entered the vehicle on the driver's side to put the hazard lights on and put the vehicle's transmission in park. Mrs. McGahee further testified that her uniquely identifiable set of keys were in the vehicle's ignition. (R.R. at 30-34.) Mrs. McGahee also testified at length concerning a trip to Walmart to obtain a change of clothes and of her efforts to find security videos from various businesses in order to establish that she had been driving the car. (R.R. at 31-32, 38-42.)
Tara Chloe, the McGahees' daughter, testified that she called Mrs. McGahee twice between 5:00 p.m. and 5:30 p.m. She stated that the second conversation was cut short when Licensee yelled at Mrs. McGahee, "Get off the phone. You're driving." (R.R. at 47.) The conversation occurred approximately an hour before the accident.
Licensee testified that December 30th was his birthday and that he had had two shots of tequila before going out to celebrate, knowing that his wife would be driving. Licensee said that he was in the driver's seat only after the accident had occurred in order to put the hazard lights on and put the transmission in park. Licensee also said it was very dark and that the visibility was so low that "you [couldn't] see 20 feet in front of you." (R.R at 53). Licensee acknowledged that Officer Eichler informed him that he would lose his license for a year if he did not submit to a chemical test. Licensee further stated that because Officer Eichler was hostile and rude to him and his wife, Licensee did not trust anything the officer said. Licensee testified that he only signed the DL-26 implied consent form because he understood the form to say that he could speak to an attorney before taking the test. (R.R. at 49-58).
The trial court concluded that DOT met its burden under section 1547(b) to establish that Licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that he was operating or was in actual physical control of the movement of his 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). Accordingly the trial court upheld the license suspension, and Licensee now appeals to this Court.
Our scope of review in a license suspension case is limited to determining whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion. Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380 (Pa. Cmwlth. 2010).
Licensee first argues that the trial court erred as a matter of law in concluding that Officer Eichler had reasonable grounds to believe that Licensee was operating the vehicle. More specifically, Licensee contends that, where no one was in the car when Officer Eichler arrived, and both McGahees indicated that Licensee was not driving the car, the statements by a purported eyewitness did not provide reasonable grounds to believe that Licensee was in fact operating the vehicle at the time of the accident. 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. This standard is not overly demanding, and factual proof is not required. Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380 (Pa. Cmwlth. 2010). Moreover, a reasonable suspicion does not have to be proven to be factually true. McKnight v. Department of Transportation, 549 A.2d 1356, 1357 (Pa. Cmwlth. 1988). In McKnight, the arresting officer testified at the de novo hearing that he found a vehicle belonging to McKnight in the middle of the street and another vehicle that was damaged across the street. The officer stated that a witness informed him that McKnight had been driving. In addition, the officer said he noticed an odor of alcohol on McKnight's breath and that she had difficulty walking. The trial court ultimately found that McKnight was not the driver of the vehicle at the time of the accident but nevertheless affirmed the suspension of her driver's license. We affirmed the trial court's order, explaining that, at the time of the arrest the police officer had reasonable grounds for believing that McKnight was driving while intoxicated and that this reasonable belief was not rendered ineffective simply because the trial court subsequently found that McKnight was not in fact driving. Thus, in the present case, while it is possible that Licensee was not driving the vehicle, the fact that other inferences may be drawn from the evidence does not render Officer Eichler's belief unreasonable. Riley v. Department of Transportation, Bureau of Driver Licensing, 946 A.2d 1115, 1120 (Pa. Cmwlth. 2008).
In determining whether a police officer had reasonable grounds to believe that a licensee was driving or was in actual physical control of a vehicle, 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 [licensee] had driven the vehicle at some point prior to the arrival of the police." Id.
The licensee's presence in the driver's seat of the vehicle with the engine running is generally deemed sufficient to satisfy the reasonable grounds test. Gammer, 995 A.2d at 384. See also, Riley (holding that reasonable grounds existed where the licensee was found in the driver's seat, parked along a road with the engine running, headlights on, and music blaring); Department of Transportation, Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993) (holding that reasonable grounds existed where the licensee was found slumped over the steering wheel with the key in the ignition and the parking lights on). However, those facts were found insufficient to provide reasonable cause in Solomon v. Department of Transportation, Bureau of Driver Licensing, 966 A.2d 604 (Pa. Cmwlth. 2009), considering the totality of the circumstances. In that case, the licensee's car was parked within walking distance of a bar, and the licensee was found asleep in a reclined driver's seat. Although the engine was running, there was no dispute that it was a cold and snowing winter night. We observed that there was no objective evidence indicating that the licensee had driven the vehicle at any time prior to the arresting officer's arrival. Therefore, we affirmed the trial court's finding that the officer did not have reasonable grounds to believe that the licensee was in physical control of the vehicle. Id. at 642. --------
Significantly, the licensee does not have to be found in the driver's seat in order for an officer to have reasonable grounds under section 1547(b), and "a police officer's reasonable grounds can be based on information received from a third party." Schlag v. Department of Transportation, Bureau of Driver Licensing, 963 A.2d 598, 603 (Pa. Cmwlth. 2009); Helt v. Department of Transportation, Bureau of Driver Licensing, 856 A.2d 263 (Pa. Cmwlth. 2004). In Schlag, the arresting officer testified that he was dispatched to investigate a hit-and-run accident; he arrived shortly after receiving the dispatch; the driver of the other vehicle followed the licensee's car to the licensee's residence; the officer spoke to the other driver outside the licensee's home; the other driver identified the vehicle that struck his car as the same make and color as the licensee's vehicle; and the officer spoke with the licensee, who failed three sobriety tests. We affirmed the trial court's determination that the officer could reasonably conclude that the licensee operated his vehicle while under the influence of alcohol. Similarly, in Helt, a police officer arrested an individual for DUI who was no longer at the scene of single vehicle accident but was named by third party witnesses as the driver. We held that the third party statements, along with the officer's assessment of the witnesses and the licensee, were sufficient to support the officer's reasonable belief that the licensee drove the vehicle while intoxicated. Id. at 266-67.
In the present case, pursuant to our decisions in Schlag and Helt, we conclude that Ms. Schutz's observations, the position of the driver's seat, and Licensee's demeanor provided reasonable grounds for Officer Eichler to believe that Licensee was operating the vehicle while under the influence of alcohol.
Licensee next argues that the trial court erred in sustaining the license suspension because he did not actually refuse the chemical test. According to Licensee, he sought to speak with a lawyer when asked if he would give blood because he was confused about his legal rights at the time. Licensee maintains that his request for a lawyer was not a denial of consent to draw blood for a chemical test, and he asserts that Officer Eichler should have made clear that his refusal to submit to chemical testing could lead to a license suspension and criminal charges. Licensee contends that, under the circumstances, he was not granted the information necessary to make an informed decision to refuse the chemical test. Licensee also points to the fact that he did the field sobriety tests and took a breathalyzer test as evidence that he did not have the requisite intent to refuse the test. For these reasons, Licensee argues that the trial court's determination that he refused chemical testing was not supported by substantive evidence. We disagree
As set forth above, DOT's burden in a license suspension case is met when DOT has established that: the licensee was arrested for DUI 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; the licensee was asked to submit to a chemical test; the licensee refused to do so; and the licensee was warned that a refusal would result in the suspension of his operating privileges. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 247, 684 A.2d 539, 542 (1996). Once DOT meets its burden, the burden shifts to the Licensee to prove that he was not capable of making a knowing and conscious refusal to take the test. Id.
Contrary to Licensee's assertions, "[o]nce an officer provides O'Connell [Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989)] warnings to a motorist, the officer has done all that is legally required to ensure that the motorist has been fully advised of the consequences of refusing to submit to chemical testing," Scott, 546 Pa. at 254, 684 A.2d at 546, and a refusal to submit to chemical testing will not be excused as unknowing on the basis of the motorist's subjective beliefs. Id. at 255, 684 A.2d at 546. Here, Officer Eichler satisfied his duty under O'Connell, and Licensee's alleged confusion does not excuse his refusal. In addition, Licensee's argument that his conduct does not reflect a refusal to submit to chemical testing likewise must fail. Indeed, we have previously held that "anything substantially less than an unqualified, unequivocal assent to submit to chemical testing constitutes a refusal." Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 19 (Pa. Cmwlth. 2010). In this case, although Licensee submitted to a field sobriety test and a breathalyzer test, there is no question that he did not unequivocally assent to chemical testing.
Based on the foregoing, we conclude that the trial court properly determined that Officer Eichler had reasonable grounds to believe that Licensee was operating or was in actual physical control of the movement of the vehicle while under influence of alcohol and correctly rejected Licensee's contention that he was unable to make a conscious and knowing refusal.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 6th day of July, 2012, the order of the Court of Common Pleas of Monroe County, dated August 16, 2011, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge