Opinion
No. 1031 C.D. 2013
01-28-2014
Daniel Sullivan, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is an appeal from an order of the Court of Common Pleas of Montgomery County (trial court) denying the appeal of Daniel Sullivan (Licensee) from the 18-month suspension of his driver's license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) for refusal of chemical testing pursuant to Section 1547(b)(1)(ii) of the Vehicle Code, commonly known as the Implied Consent Law. We affirm.
On the night of October 21, 2011, Licensee's vehicle struck another vehicle on the Pennsylvania Turnpike, sending the other vehicle spinning into the concrete center barrier. (Hearing Transcript (H.T.) at 9-10, 13-14, Reproduced Record (R.R.) at 22a-23a, 26a-27a.) Pennsylvania State Police Trooper Rudolph Schoning was dispatched to the scene of the accident, and observed that Licensee, who was found by the State Police in the woods approximately 80 yards away, had a strong odor of alcohol and was having a hard time keeping his balance while walking. (H.T. at 9-12, R.R. at 22a-25a; Trial Court Op. at 1.) Trooper Schoning placed Licensee under arrest for driving under the influence of alcohol (DUI) and transported him to the Towamencin Police Department Fast Track Center for chemical testing. (H.T. at 13-15, 21, R.R. at 26a-28a, 34a; Trial Court Op. at 1-2.)
At the Fast Track Center, Montgomery County Deputy Sheriff Patrick Morgera, who is a certified breathalyzer operator, asked Licensee to submit to a breath test and read him verbatim the warnings on the D-26 Implied Consent Warnings form, advising him that his driver's license would be suspended if he refused to submit to that test. (H.T. at 15-16, 23-24, 32, 38, 42, R.R. at 28a-29a, 36a-37a, 45a, 51a, 55a; Exhibit C-3 Videotape of Warnings and Breathalyzer Test; Exhibit C-1 Item #2 DL-26 Form, R.R. at 85a; Exhibit C-5, R.R. at 113a; Trial Court Op. at 2.) Trooper Schoning was present in the room when Deputy Sheriff Morgera read the warnings to Licensee. (H.T. at 15-16, R.R. at 28a-29a.) Licensee signed the D-26 Implied Consent Warnings form acknowledging that he received these warnings. (Exhibit C-1 Item #2 DL-26 Form, R.R. at 85a; Exhibit C-3 Videotape of Warnings and Breathalyzer Test; Trial Court Op. at 2.)
Deputy Sheriff Morgera did not testify at the de novo hearing on this license suspension because he was no longer employed by Montgomery County and had moved out of state. (H.T. at 27, R.R. at 40a; Trial Court Op. at 3.) The Department, however, introduced evidence of Deputy Sheriff Morgera's qualifications, a videotape of the warnings and breathalyzer test, and testimony of Trooper Schoning and Corporal Robert Baer of the Montgomery County Sheriff's Department, both of whom were present and observed the warnings and breathalyzer test.
To complete a breath test for alcohol, two breath samples must be provided. 67 Pa. Code § 77.24(b)(1). Licensee provided a first breath sample, which showed a blood alcohol content of 0.205%, but did not provide a sufficient second breath sample. (H.T. at 38-41, 43, R.R. at 51a-54a, 56a; Exhibit C-8, R.R. at 118a; Exhibit C-3 Videotape of Warnings and Breathalyzer Test; Trial Court Op. at 2-3.) The breathalyzer machine used in the breath test was properly calibrated and tested for accuracy. (H.T. at 36-37, R.R. at 49a-50a; Exhibits C-6, C-7, R.R. at 114a-117a; Trial Court Op. at 2.) Deputy Sheriff Morgera asked Licensee to blow into the breathalyzer again to provide an adequate second breath sample, but Licensee refused to do so. (H.T. at 41, 54-56, R.R. at 54a, 67a-69a; Exhibit C-3 Videotape of Warnings and Breathalyzer Test; Trial Court Op. at 3.) Deputy Sheriff Morgera therefore recorded the second sample as a refusal, and Trooper Schoning reported to the Department that Licensee had refused to submit to chemical testing. (Exhibit C-8, R.R. at 118a; H.T. at 16-17, 46-47, R.R. at 29a-30a, 59a-60a; Exhibit C-1 Item #2 DL-26 Form, R.R. at 85a.)
By letters mailed November 25, 2011, the Department notified Licensee that his driver's license was being suspended for a period of 18 months for this refusal to submit to chemical testing and that his commercial driver's license was being disqualified for a period of one year. (Exhibit C-1, R.R. at 82a-84a; Exhibit C-2, R.R. at 98a-99a.) Because Licensee had a prior DUI conviction, the driver's license suspension was for a period of 18 months in accordance with Section 1547(b)(1)(ii) of the Vehicle Code. (Exhibit C-1, R.R. at 86a-87a, 93a.) Licensee filed a timely appeal to the trial court, asserting that both the suspension and disqualification should be set aside on the sole ground that he allegedly "did not refuse to submit to chemical testing." (Licensee's Petition for Appeal from Suspension ¶5, R.R. at 6a.)
On April 15, 2013, the trial court held a de novo hearing on the driver's license suspension and commercial license disqualification. At this hearing, the Department introduced evidence, including a videotape showing both the warnings being read to Licensee and the entire breathalyzer test, establishing the facts set forth above. At the hearing, Licensee did not dispute that he received the required warnings that refusal would result in a license suspension and admitted that he understood that Deputy Sheriff Morgera was acting under police authority. Licensee instead contended that he had already provided a sufficient second breath sample and refused the request for a second attempt at the second breath sample because only two samples were required, testifying:
the cop asked me to give him two breathalyzer samples and I gave him two, and when he wanted the third I told him I wasn't going to give it to him. He asked for two. I gave him two.(H.T. at 54, R.R. at 67a.) Licensee raised only two other issues before the trial court, a contention that the notification of the suspension was defective and a claim that the Department had not proven compliance with the requirement of 67 Pa. Code § 77.24(a) that the driver be observed for 20 minutes prior to the breath test. (H.T. at 59-62, 64-65, R.R. at 72a-75a, 77a-78a.)
The trial court found the Department's evidence credible, rejected Licensee's arguments, found that Licensee had failed to provide a sufficient second breath sample, and concluded that the Department had met its burden of proof under the Implied Consent Law. (Trial Court Op. at 2-3, 5-6.) The trial court, accordingly, denied Licensee's appeal and ordered that the 18-month suspension of his driver's license be reinstated. This appeal followed.
The trial court in the same order also denied Licensee's appeal of the disqualification of his commercial license. Licensee did not appeal the trial court's ruling on the commercial license disqualification. (Appellant's Br. at 8 n.3.)
In this appeal, Licensee does not dispute the validity of the trial court's findings that he did not supply a sufficient second breath sample and that he refused to submit to a chemical breath test. Nor does Licensee contend that the trial court erred with respect to any other issue that he raised at the hearing on his license suspension. Rather, Licensee argues only that Deputy Sheriff Morgera, who read him the warnings of the consequences of refusal to submit to the breath test, was not shown to be a "police officer." Licensee contends that the warnings he received, although substantively sufficient and understood by him, therefore do not satisfy the requirements of Section 1547(b)(2) of the Vehicle Code, which provides that "the police officer" has the duty to warn that refusal of the chemical test will result in license suspension. 75 Pa. C.S. § 1547(b)(2). We conclude that this argument was waived by Licensee and is not properly before this Court.
This Court's standard of review of a trial court order sustaining a license suspension based upon a refusal to submit to chemical testing 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. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 17 n.5 (Pa. Cmwlth. 2010). --------
It is well established that issues must be raised in the trial court and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a); Commonwealth v. Dennis, 548 Pa. 116, 121, 695 A.2d 409, 411 (1997); Kollar v. Department of Transportation, Bureau of Driver Licensing, 7 A.3d 336, 343 (Pa. Cmwlth. 2010); Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385, 389 (Pa. Cmwlth. 2009); Rutledge v. Department of Transportation, 508 A.2d 1306, 1307 (Pa. Cmwlth. 1986). At the de novo hearing on his license suspension, Licensee did not raise any issue concerning the sufficiency of the warnings he received or concerning whether Deputy Sheriff Morgera was a "police officer" under the Vehicle Code. Nor did Licensee assert any challenge concerning the warnings or Deputy Sheriff Morgera's status at any other time prior to filing this appeal. Accordingly, Licensee's contention that the suspension was invalid because the warnings were allegedly not given by a "police officer" is waived and cannot provide grounds for reversal. Dennis, 548 Pa. at 121-22, 695 A.2d at 411; Kollar, 7 A.3d at 343; Thoman, 965 A.2d at 388-89; Rutledge, 508 A.2d at 1307-08.
Licensee concedes that he failed to raise this issue at the de novo hearing and brought the issue to the trial court's attention only after filing his appeal of the trial court's order. (Appellant's Br. at 15, 18.) Licensee contends, however, that waiver should not apply because he is challenging the sufficiency of the warnings he received concerning the consequences of chemical testing refusal, which is an element that the Department must prove in a license suspension case. (Id. at 15-19.) This argument is without merit. In Kollar and Thoman, this Court held waiver is fully applicable to challenges to the sufficiency of warnings in driver's license suspension appeals, rejecting the same argument as Licensee makes here, that failure to raise such challenges in the trial court is excused because sufficiency of the warnings is part of the Department's threshold burden of proof. Kollar, 7 A.3d at 343 (challenge to sufficiency of Section 1547(b)(2) warning was waived where licensee contended before the trial court that the only issue was whether her injuries prevented a knowing refusal); Thoman, 965 A.2d at 388-89 (challenge to sufficiency of Section 1547(b)(2) warning waived where licensee did not raise it in the trial court and instead claimed that he received no warning).
The only authority that Licensee cites for his contention that waiver does not apply consists of decisions in criminal cases. These decisions are based on the Rules of Criminal Procedure, which expressly permit criminal defendants to challenge the sufficiency of evidence to support a conviction for the first time on appeal. Pa. R. Crim. P. 606(A)(7); Commonwealth v. McCurdy, 943 A.2d 299, 301 (Pa. Super. 2008). This license suspension is a civil proceeding, not a criminal case. Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 21-22 & n.11 (Pa. Cmwlth. 2010). The Rules of Criminal Procedure and the case law on which Licensee relies therefore have no applicability here.
Moreover, this is not a situation where there was a complete absence of an element of the Department's prima facie case. The four fundamental elements that the Department must prove to sustain a driver's license suspension under Section 1547(b)(1) of the Vehicle Code are 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 the vehicle under the influence of alcohol or a controlled substance; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that a refusal would result in the suspension of his driver's license. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999); McKenna v. Department of Transportation, Bureau of Driver Licensing, 72 A.3d 294, 298 (Pa. Cmwlth. 2013); Kollar, 7 A.3d at 339; Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005). Where an 18-month suspension has been imposed, the Department must also show a fifth element, that the licensee has a prior conviction or suspension that qualifies for enhancement of the suspension under Section 1547(b)(1)(ii) of the Vehicle Code. McKenna, 72 A.3d at 298; Sitoski, 11 A.3d at 22. The Department proved all of those five elements here.
It is true that the language of Section 1547 states that it "is the duty of the police officer" to give the warnings, 75 Pa. C.S. § 1547(b)(2), and that some decisions of this Court state the warning element as a requirement that the police officer provide the warnings. See, e.g., Demarchis v. Department of Transportation, Bureau of Driver Licensing, 999 A.2d 639, 641 (Pa. Cmwlth. 2009); Solomon v. Department of Transportation, Bureau of Driver Licensing, 966 A.2d 640, 643 (Pa. Cmwlth. 2009); Taylor v. Department of Transportation, Bureau of Driver Licensing, 948 A.2d 189, 196 (Pa. Cmwlth. 2008); Quick v. Department of Transportation, Bureau of Driver Licensing, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007). None of those decisions, however, suggests that the Department or the trial court must sua sponte address an individual's status as a police officer or whether the warnings were given by the police officer where the licensee does not raise any issue concerning authority to act as a police officer or the sufficiency of the warning. Indeed, in at least one of those decisions, although the warnings were given by a deputy sheriff, rather than the arresting officer, this Court upheld the license suspension without examining whether the deputy sheriff was a police officer. Quick, 915 A.2d at 1269, 1271-72.
Licensee also suggests that his waiver is excused because he was not ordered by the trial court to file a concise statement of errors complained of on appeal under Pa. R.A.P. 1925(b) and because he argued this issue to the trial court in a post-appeal motion for supersedeas before the trial court filed its opinion in support of its order. (Appellant's Br. at 18.) That contention likewise fails. Issues that were not raised when the case was pending in the trial court cannot be preserved for appellate review by listing them for the first time in a Rule 1925(b) statement or other post-appeal filing. Steiner v. Markel, 600 Pa. 515, 523, 968 A.2d 1253, 1257 (2009); Commonwealth v. DeLoach, 714 A.2d 483, 486 n. 8 (Pa. Cmwlth. 1998); Rutledge, 508 A.2d at 1307-08. "The purpose of Pa. R.A.P. 1925(b) is not to give appellants one last opportunity to raise issues they failed to raise previously before the trial court. This rule simply allows the trial court to seek a clarification as to which of the issues already raised will be pursued upon appeal." Rutledge, 508 A.2d at 1307-08.
For the foregoing reasons, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 28th day of January, 2014, the order of May 17, 2013 of the Montgomery County Court of Common Pleas in the above-captioned case is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge