Opinion
No. 1171 C.D. 2012
03-19-2013
John Robert Planchak, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
John Robert Planchak (Licensee) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) that denied his statutory appeal from a one-year suspension of operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code, commonly known as the Implied Consent Law. The Department of Transportation, Bureau of Driver Licensing (Department) suspended Licensee's operating privilege as a result of his refusal to submit to chemical testing. Licensee contends the trial court erred by concluding the officer had reasonable grounds to believe he violated Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. He also challenges the adequacy of the officer's warning as to the consequences of refusal. Upon review, we affirm.
The Honorable Bernard A. Moore presided.
Section 1547(b)(1)(i) requires any person placed under arrest for driving under the influence (DUI) "to submit to chemical testing...[and if that person] 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... for a period of 12 months." 75 Pa. C.S. §1547(b)(1)(i).
Background
The Department notified Licensee of the one-year suspension of his operating privilege as a consequence of refusing to submit to chemical testing after his arrest for driving under the influence (DUI). Licensee timely appealed to the trial court.
The trial court held a hearing at which the Department presented the testimony of two witnesses, Corporal Andrew Fidler and Officer Aaron Michael Barkmeyer (collectively, Officers), who responded to the scene. Officer Barkmeyer received a report of a suspicious vehicle parked on the grassy lawn in front of a business located on a heavily travelled thoroughfare. Licensee was slumped over the wheel when Officer Barkmeyer and Sergeant Paul Cooper arrived; "the vehicle was running at the time." Reproduced Record (R.R.) at 15a. Initially, the driver did not respond when they attempted to wake him. Officer Barkmeyer detected a strong odor of alcohol and noted, once Licensee awoke, that his eyes were glassy and bloodshot.
Once coaxed from the vehicle, Licensee could not perform the field sobriety tests. He refused to submit to a portable breath test. 75 Pa. C.S. §1547(k) (regarding pre-test breath test). When asked where he was going, Licensee responded "Pittsburgh." When asked how he was getting there, Licensee stated, "I'm streeting." R.R. at 18a. The Officers placed Licensee under arrest for DUI. Officer Barkmeyer then read the Implied Consent Law warnings verbatim to Licensee from a Form DL-26, Chemical Testing and Refusal Report (Warning).
After they reached the police station, Officer Barkmeyer again asked Licensee to submit to testing and to read the Warning. Licensee responded that he was "not submitting to anything without speaking to a lawyer." R.R. at 19a. Officer Barkmeyer responded that Licensee did not have a right to speak to an attorney before agreeing to submit to chemical testing. Licensee repeated he would not do anything until he consulted with an attorney.
Officer Barkmeyer acknowledged he did not witness Licensee operating the vehicle on the highway. Rather, he "observed the tire tracks coming from the road up to the curb to where his vehicle was resting on the property." R.R. at 22a. Officer Barkmeyer did not know how long Licensee's vehicle was on the grass. On cross-examination, Officer Barkmeyer emphasized that Licensee understood he would lose his license if he refused chemical testing.
Corporal Fidler arrived on the scene after the first responding officers coaxed Licensee from his vehicle. He testified he observed Officer Barkmeyer reading to Licensee from the DL-26 Form, but he could not hear what he was saying.
Licensee testified he pulled over into the lawn because he was falling asleep while driving. Licensee admitted Officer Barkmeyer told him he could lose his license if he did not submit to chemical testing. However, Licensee testified Officer Barkmeyer did not let him read the form from which the officer was reading. Licensee testified he started to write "Refuse" on the form, but the officer took the form before he could do so. R.R. at 55a. Licensee testified that if he knew he would lose his license as a consequence of refusal, he would have given a chemical sample.
The trial court denied the appeal and upheld the suspension. The trial court concluded the Department established the arresting officer had reasonable grounds to believe Licensee operated his vehicle while under the influence. The trial court did not credit Licensee's testimony regarding his alleged confusion about the consequences of refusal.
Licensee now appeals to this Court. Licensee contends the trial court erred in finding the Officers had reasonable grounds to believe that he was in violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. He argues a 2004 amendment altered the reasonable grounds standard, requiring the suspect to be on a highway while under the influence. Licensee also asserts Officer Barkmeyer confused him by twice advising him, before reading the Warning, that he "could" lose his license.
Our review is limited to determining whether the trial court committed error of law or abused its discretion and whether necessary findings of fact were supported by substantial evidence. Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 946 A.2d 167 (Pa. Cmwlth. 2008).
Discussion
To sustain a license suspension under the Implied Consent Law, the Department must establish a licensee: (1) 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 the influence; (2) was asked to submit to a chemical test (e.g., blood test); (3) refused to do so; and, (4) was specifically warned a refusal might result in a license suspension. See Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010). The trial court concluded the Department met its burden of proving each element to support a license suspension.
That Licensee was asked to submit to a chemical test and refused to do so is undisputed. There is also no dispute that Officer Barkmeyer read the full Warning to Licensee. Licensee challenges whether the Officers had reasonable grounds to believe he violated Section 3802 and whether the warning of the consequences of refusal was clear under the circumstances. We address each issue in turn.
A. Reasonable Grounds
The trial court concluded the Officers had reasonable grounds to believe Licensee operated his vehicle in violation of Section 3802 of the Vehicle Code. Licensee argues there is no evidence regarding when his vehicle was on a highway, which is a required element for reasonable grounds.
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 v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999) (citing DiPaolo v. Dep't of Transp., Bureau of Driver Licensing, 700 A.2d 569 (Pa. Cmwlth. 1997)); Sisinni v. Dep't of Transp., Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 44 A.3d 1163 (2012).
The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Sisinni; Vinansky v. Dep't of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995). In Sisinni, we recently reiterated, "It is well settled that the 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, 31 A.3d at 1259 (citations omitted). "Whether reasonable grounds exist is a question of law reviewable by this Court on a case-by-case basis." Id. at 1257.
Licensee argues the Officers lacked reasonable grounds under Section 3802 because they did not find him in actual physical control of the vehicle on a highway. Applicable precedent does not support Licensee's interpretation. Our Supreme Court explained:
In determining whether an officer had reasonable grounds to believe that a motorist 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 motorist had driven the vehicle at some point prior to the arrival of the police. Commonwealth v. Wolen, 546 Pa. 448, 450, 685 A.2d 1384, 1385 (1996).Banner, 558 Pa. at 446-47, 737 A.2d at 1207 (emphasis added). Applying this standard, this Court consistently holds that a licensee found in a parked vehicle, not located on a highway, while the engine is running, constitutes the requisite reasonable grounds for an arrest for DUI. See, e.g., Vinansky; Dep't of Transp., Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993).
In Vinansky, actual physical control was present where the licensee was discovered slumped over the steering wheel of a truck parked in a parking lot behind a fire department social hall. The vehicle's engine was running, and its brake lights were on.
In Paige, actual physical control was present where the licensee was asleep, slumped over the steering wheel with the key in the ignition. The vehicle was parked on a city street with its parking lights on. We explained, "We do not require the arresting officer to actually observe the arrestee operating the motor vehicle." Paige, 628 A.2d at 919.
In Polinsky v. Department of Transportation, 569 A.2d 425 (Pa. Cmwlth. 1990), we concluded the officer had reasonable grounds to believe the licensee was in actual physical control of the vehicle when she was found asleep behind the wheel of her vehicle, parked adjacent to a fast food restaurant pick-up window. The headlights of the car were on, and the standard transmission was in gear, although the engine was not running.
We relied on these cases in Riley v. Department of Transportation, Bureau of Driver Licensing, 946 A.2d 1115 (Pa. Cmwlth. 2008). In Riley, the officers found the licensee passed out on the driver's side, parked along the side of the road with the engine running and the headlights on. In addition, the licensee performed poorly on the field sobriety tests and exhibited other visible signs of intoxication.
Here, the trial court found the circumstantial evidence compelling. "The police observed track marks on the grass beginning at the curb leading to [Licensee's] vehicle. [Licensee] was at the scene sleeping in the driver's seat, slumped over the steering wheel with the ignition on and the engine running when the police arrived." See Tr. Ct., Slip Op., 8/21/12, at 3. The facts in this case are substantially similar to those in Riley, Paige and Vinansky.
Despite our reliance on these cases in Riley, decided in 2008, Licensee argues the 2004 amendments to the Vehicle Code, 75 Pa. C.S. §§101-9805 in Act 24 heightened the standard for reasonable grounds under Section 1547(a) of the Vehicle Code to require operation on a highway. Contrary to Licensee's assertions, it is not required that a licensee operate his vehicle on a highway to violate Section 3802. See Bashore v. Dep't of Transp., Bureau of Driver Licensing, 27 A.3d 272 (Pa. Cmwlth. 2011). We recently addressed and explicitly rejected this argument. See Koutsouroubas v. Dep't of Transp., Bureau of Driver Licensing, (Pa. Cmwlth., No. 1382 C.D. 2012, filed January 14, 2013) (unpublished).
Act of September 30, 2003, P.L. 120, effective February 1, 2004.
Prior to February 1, 2004, former section 1547(a) of the Vehicle Code provided:
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: (1) while under the influence of alcohol or a controlled substance or both ....75 Pa. C.S. §1547(a) (emphasis added). Section 1547(a) of the Vehicle Code now reads:
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 vehicle: (1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock) ....75 Pa. C.S §1547(a) (emphasis added).
Our reasoning in Koutsouroubas is persuasive. In response to this argument, we reasoned:
Act 24 changed the wording of section 1547(a)(1) to include additional references to driving with a suspended license and driving without an ignition interlock system. These two new statutory references precipitated changing the language "while under the influence of alcohol or a controlled substance or both" to the statutory reference to section 3802 of the Vehicle Code. Otherwise, section 1547 of the Vehicle Code would have been inconsistently worded, overly verbose, and potentially confusing. Certainly, nothing indicates that the legislature intended Act 24 to increase the substantive requirements for reasonable grounds, especially given the overall character of Act 24 in enabling drunk-driving enforcement.Id., slip op. at 7.
Additionally, in Bashore, decided in 2011, we held a licensee's failure to operate a vehicle on a qualifying highway does not preclude reasonable grounds. We reasoned that although Section 3101(b) of the Vehicle Code states "the provisions of ... Chapter 38 ... shall apply upon highways and trafficways throughout this Commonwealth," 75 Pa. C.S. §3101(b), "it is clear from a strict reading of the Implied Consent Law that it does not require [the officer to] have reasonable grounds to believe that [a licensee] was operating her vehicle on a highway ...." Id. at 275. Rather, it suffices that the officer has reasonable grounds to believe a licensee was operating or in actual physical control of the movement of the vehicle while under the influence of alcohol. Id.
We decline to abandon our reasoning in Bashore. Licensee does not dispute that he operated the vehicle on Allendale Road before driving onto the lawn of a business. R.R. at 59a. Licensee also does not dispute that Allendale Road qualifies as a highway, or that the tire tracks in the lawn led from the road to where the officers found Licensee slumped in his vehicle with the engine running. Licensee rests his argument on the absence of evidence as to the length of time the tire tracks were present, but that is not dispositive.
"Highway" is defined as "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." Section 102 of the Vehicle Code, 75 Pa. C.S. §102 (emphasis added).
Licensee admitted he drove over a curb of between six and eight inches high in order to park on the grass, noting he drove a Jeep. See Reproduced Record at 60a. --------
We further note that Section 3802 does not contain a requirement that the suspect be found upon a highway or trafficway as an element of the offense. In fact, the words "highway" and "trafficway" do not appear in that section. Licensee's statutory construction argument relies entirely on the phrase in Section 3101 that the provisions of Chapter 38 "shall apply upon highways and trafficways throughout this Commonwealth." 75 Pa. C.S. §3101. This language, however, is not restrictive because it does not state only on highways.
Here, the circumstances are such that Officer Barkmeyer had reasonable grounds. Regardless of whether Licensee was asleep at the wheel parked off of a highway, reasonable grounds existed because he left the engine running. Riley; Vinansky; Paige.
Based on these circumstances and the decisions construing the circumstances from which an officer may infer control, we hold the trial court committed no error in concluding the Officers had reasonable grounds.
B. Refusal
This Court consistently holds that anything substantially less than an unqualified, unequivocal assent to submit to chemical testing constitutes a refusal. Gregro v. Dep't of Transp., Bureau of Driver Licensing, 987 A.2d 1264 (Pa. Cmwlth. 2010); Dep't of Transp., Bureau of Driver Licensing v. Mumma, 468 A.2d 891 (Pa. Cmwlth. 1983). Licensee bears the burden to prove his refusal was not knowing or conscious. Dep't of Transp., Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).
The Implied Consent Law requires the police to tell a licensee of the license suspension consequences of a refusal to take a chemical test on arrest for DUI so he can make a knowing and conscious choice. Zaleski v. Dep't of Transp., Bureau of Driver Licensing, 22 A.3d 1085 (Pa. Cmwlth. 2011). Reading the Warning to a licensee satisfies the requirements of Section 1547(b)(2). Dep't of Transp., Bureau of Driver Licensing v. Weaver, 590 Pa. 188, 912 A.2d 259 (2006). In pertinent part, the Warning provides:
You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to chemical testing, you will have refused the testing, resulting in suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.R.R. at 107a, Warning No. 4 (emphasis added).
The determination of whether a licensee was able to make a knowing and "conscious refusal is a factual one that is to be made by the trial court." Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 340 (Pa. Cmwlth. 2010) (citing Barbour v. Dep't of Transp., Bureau of Driver Licensing, 557 Pa. 189, 732 A.2d 1157 (1999)). Provided there is sufficient evidence in the record to support factual findings, the findings must be affirmed. Id. We must view the evidence in the light most favorable to the party that prevailed before the trial court. Bashore; McDonald v. Dep't of Transp., Bureau of Driver Licensing, 708 A.2d 154 (Pa. Cmwlth. 1998).
Questions of credibility are for the trial court to resolve. Department of Transp., Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997). This Court cannot "make new or different findings of fact." Reinhart v. Dep't of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008).
Licensee claims he was not properly advised of the consequences for failing to submit to chemical testing. Specifically, Licensee argues the trial court abused its discretion in failing to find that Office Barkmeyer twice advised Licensee that he "could" lose his operating privilege, which precluded him from making a knowing and voluntary refusal. According to Licensee, during a discussion on the consequences of refusal, Officer Barkmeyer twice advised him that he "could," instead of "would," lose his license. Licensee asserts the officer's description was confusing and did not adequately explain that he "would" lose his license. The trial court stated, "[T]his Court does not find [Licensee's] testimony credible on this issue." Tr. Ct., Slip Op. at 6.
Although Officer Barkmeyer did not recall the exact language he used when discussing the consequences of refusal with Licensee, the evidence establishes that Officer Barkmeyer read the contents of the Warning to Licensee. Officer Barkmeyer thus advised Licensee of the consequences of a refusal. The trial court found Officer Barkmeyer credible. The trial court expressly found Licensee not credible as to his confusion about the ramifications of refusal. Id.
Given the undisputed fact that the Warning was read in its entirety, whether the officer used the word "could" or "would" before reading the form is irrelevant, and ultimately, cured. None of the cases Licensee cites as support involved a case in which the officer read the statutory Warning in its entirety. See, e.g., Graves v. Commonwealth, 535 A.2d 707 (Pa. Cmwlth.1988) (statutory warning not addressed); Everheart v. Commonwealth, 420 A.2d 13 (Pa. Cmwlth. 1980) (record was unclear whether warning was read to licensee).
Licensee relies heavily upon Peppelman v. Commonwealth, 403 A.2d 1041 (Pa. Cmwlth. 1980), for the proposition that an officer's use of the word "could" when referring to loss of license was an insufficient warning under the statute. However, Peppelman is easily distinguished. In Peppelman, there was no evidence that the officer read a warning to the licensee. Here, by contrast, there is no dispute that Officer Barkmeyer read the Warning to Licensee. As a result, Licensee was adequately apprised of the consequences of refusal as a matter of law. See Weaver; Moran v. Commonwealth, 403 A.2d 637 (Pa. Cmwlth. 1979).
Accordingly, and for the above reasons, the decision of the trial court sustaining Licensee's one-year suspension is affirmed.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of March, 2013, the May 24, 2012 Order of the Court of Common Pleas of Montgomery County is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge