J.Z. Wilson, Jr. v. Bureau of Driver Licensing , 209 A.3d 1143 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Z. Wilson, Jr., :
Appellant :
:
v. : No. 709 C.D. 2018
: Submitted: November 30, 2018
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE BROBSON FILED: May 20, 2019
Appellant John Z. Wilson, Jr. (Licensee) appeals from an order of the
Court of Common Pleas of Washington County (trial court), dated April 26, 2018.
The trial court dismissed Licensee’s statutory appeal of the suspension of his
operating privilege by the Department of Transportation (Department), Bureau of
Driver Licensing (Bureau), which the Bureau imposed pursuant to
Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly
referred to as the Implied Consent Law, after Licensee refused chemical breath
testing. We will affirm the trial court’s order.
I. BACKGROUND
On August 25, 2017, Licensee was driving on Washington Road in
North Strabane Township. As he did so, Officer Patrick Lee, a North Strabane
Township police officer (Officer Lee), while in his parked squad car monitoring
traffic, observed Licensee’s vehicle approach and cross two speed lines marked on
the pavement. To monitor Licensee’s speed, Officer Lee manually started and
stopped a stopwatch-based speed calculation device, commonly known as an
Accutrak watch (the Accutrak). Officer Lee had programmed the distance between
the two speed lines into the Accutrak. When the Accutrak displayed a speed
of 60.7 miles per hour (roughly 15 miles per hour above the posted speed limit
of 45 miles per hour), Officer Lee pursued Licensee down Washington Road and
across a municipal boundary into Peters Township. Officer Lee ultimately found
Licensee leaving his vehicle in a shopping center parking lot. He approached and
told Licensee that he was stopping him for speeding on Washington Road. Based
on the ensuing encounter, Officer Lee arrested Licensee for driving under the
influence of alcohol (DUI) and, invoking the Implied Consent Law, asked Licensee
to take a chemical breath test. Licensee refused, and the Bureau suspended his
operating privilege pursuant to Section 1547(b)(1)(i) of the Implied Consent Law.
Licensee appealed the suspension to the trial court, which held a
hearing on April 14, 2018. During the hearing, the Bureau introduced the testimony
of Officer Lee. Officer Lee testified that he pursued Licensee as soon as he saw the
Accutrak return a speed of 60.7 miles per hour. (Reproduced Record (R.R.) at 7.)
He also testified that, to his knowledge, the speeding lines he used to measure
Licensee’s speed with the Accutrak were 0.0331 miles (or 175 feet) apart. On
cross-examination, Officer Lee admitted that he had not personally measured the
distance between the lines. (Id. at 44.) On being asked about the speed calculation,
Officer Lee stated that the Accutrak registered a total transit time between the two
lines of 1.96 seconds. (Id. at 43.) He explained that his usual practice is to start
timing when the vehicle’s front tires cross the first line and stop the time when the
2
rear tires cross the second line, but he admitted he could not recall when he started
and stopped the Accutrak in this particular instance. (Id. at 44-45.) Officer Lee also
said that he observed no violations in North Strabane Township other than speeding.
(Id. at 7, 34.)
The Bureau also presented Officer Lee’s testimony about his encounter
with Licensee following the stop. Officer Lee explained that, as he stood several
feet away from Licensee, he smelled alcohol and noticed that Licensee’s eyes were
red and glassy. (Id. at 13.) Based on those observations, Officer Lee asked Licensee
to perform a field sobriety test known as the horizontal gaze nystagmus test (HGN).
Licensee performed the test and Officer Lee noticed sustained and distinct
nystagmus, possibly indicating intoxication. (Id. at 14-17.) He then asked Licensee
to perform two other field sobriety tests. Licensee refused and claimed that a
medical condition in his leg prevented him from performing the tests, though he did
not specify what that condition was. (Id. at 17.) Officer Lee then asked Licensee to
perform a preliminary breath test, which licensee refused without explanation.
Following that interaction, Officer Lee arrested Licensee on suspicion
of DUI, read him the statutory warnings from the Department’s Form DL-26A, and,
when Licensee still refused to comply, took Licensee to the North Strabane
Township police station. (Id. at 18-20.) At the station, Officer Lee read
Form DL-26A to Licensee a second time, allowed Licensee to read the form himself
and sign it, and requested that Licensee perform a chemical breath test. Licensee
again refused. The Bureau introduced the signed Form DL-26A into evidence at the
hearing. (Id. at 22.)
On cross-examination, Officer Lee answered questions about his use of
the DUI investigative process. In particular, he admitted that he did not observe any
3
objective indicators of intoxication other than the odor of alcohol, Licensee’s glassy
eyes, and the results of the HGN test. (Id. at 29-36.) Regarding the HGN test,
Officer Lee confirmed that the test can yield up to three “clues” or indications of
intoxication per eye, for a total of six clues. He testified that he observed only two
clues, which, he acknowledged, is consistent with a level of intoxication below the
legal limit. (Id. at 37-39.)
Licensee also testified at the hearing. He stated that, based upon his
own calculations, an error of 0.25 seconds in Officer Lee’s timing could have
resulted in Licensee’s speed being calculated at 6.8 miles per hour faster than his
actual speed. Such an error, Licensee testified, could have caused the Accutrak to
return a speed of 60.7 miles per hour when Licensee was in fact travelling at
only 53.9 miles per hour—a speed at which he could not be stopped for speeding
under Pennsylvania law. (Id. at 73-74.) He admitted that, of course, such an error
could also mean he was travelling faster than the calculated speed. (Id.) Licensee
also testified about a leg injury that, he contended, prevented his performance of two
of the requested field sobriety tests. (Id. at 74-75.) Finally, he acknowledged signing
Form DL-26A, but he testified that he had trouble hearing Officer Lee’s reading of
the form and did not hear Officer Lee tell him that his license would be suspended
if he refused the chemical breath test. (Id. at 78-82.)
The trial court ultimately dismissed Licensee’s appeal. In rendering its
subsequent Pa. R.A.P. 1925(a) opinion, the trial court relied upon Section 8953 of
the Judicial Code, 42 Pa. C.S. § 8953, and Section 1547 of the Vehicle Code,
75 Pa. C.S. § 1547. Section 8953 of the Judicial Code, pertaining to statewide
municipal police jurisdiction, provides, in part:
(a) General rule.--Any duly employed municipal
police officer who is within this Commonwealth, but
4
beyond the territorial limits of his primary jurisdiction,
shall have the power and authority to enforce the laws of
this Commonwealth or otherwise perform the functions of
that office as if enforcing those laws or performing those
functions within the territorial limits of his primary
jurisdiction in the following cases:
....
(2) Where the officer is in hot pursuit of any
person for any offense which was committed, or
which he has probable cause to believe was
committed, within his primary jurisdiction and for
which offense the officer continues in fresh pursuit
of the person after the commission of the offense.
(Emphasis added.) Section 1547 of the Vehicle Code, pertaining to chemical testing
to determine the presence of alcohol or a controlled substance in a person’s body,
provides, in part:
(a) General rule.--Any person who drives, operates
or is in actual physical control of the movement of a
vehicle in this Commonwealth 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 vehicle in violation of . . . [Section] 3802
(relating to driving under influence of alcohol or
controlled substance) . . . .
(b) Civil penalties for refusal.--
(1) If any person placed under arrest for a
violation of [S]ection 3802 is requested to submit to
chemical testing and refuses to do so . . . the
[D]epartment shall suspend the operating privilege
of the person . . . .
(Emphasis added.)
In its opinion, the trial court found Officer Lee’s testimony credible and
concluded that the Municipal Police Jurisdiction Act (MPJA)1 authorized Officer
1
42 Pa. C.S. §§ 8951-8954.
5
Lee to invoke the Implied Consent Law in Peters Township. To support this, the
trial court determined that Officer Lee’s measurement of Licensee’s speed in North
Strabane Township gave Officer Lee probable cause to believe that Licensee was
speeding. The trial court went on to conclude that Officer Lee’s interactions with
Licensee following the traffic stop were sufficient to give him reasonable grounds
to suspect Licensee of DUI and thus invoke the Implied Consent Law. Finally, the
trial court concluded that Officer Lee properly warned Licensee of the license
suspension that would follow his refusal to submit to chemical breath testing.
II. AUTHORITY UNDER THE MPJA
On appeal,2 Licensee first argues that the trial court erred in concluding
that Officer Lee properly invoked the Implied Consent Law in Peters Township,
outside his own jurisdiction. Licensee claims that the Bureau did not demonstrate
that Officer Lee possessed the probable cause required by the MPJA in order to
exercise police authority in Peters Township. Licensee essentially argues that the
Bureau failed to demonstrate the reliability of the speed measurement on which
Officer Lee relied. Licensee sets forth four reasons supporting that argument, which
we will discuss in detail below.
In response, the Bureau argues that Officer Lee’s testimony was
sufficient to establish probable cause—and, therefore, authority—under the MPJA.
Further, with respect to the first of Licensee’s four supporting reasons, the Bureau
argues that Licensee waived the issue of the Bureau’s failure to demonstrate
approval and testing of the Accutrak in accordance with Section 3368 of the Vehicle
2
In an appeal from a driver’s license suspension, this Court’s review 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. Cesare v. Dep’t of Transp.,
Bureau of Driver Licensing, 16 A.3d 545, 548 n.6 (Pa. Cmwlth.), appeal denied, 23 A.3d 1057
(Pa. 2011).
6
Code, 75 Pa. C.S. § 3368 (hereinafter the noncompliance issue). Before addressing
the MPJA issue generally and each of Licensee’s associated arguments, we first
address the Bureau’s waiver argument.
A. Waiver
The Bureau’s waiver argument is that Licensee failed to raise the
noncompliance issue at two critical points: (1) at the hearing before the trial court,
and (2) in his concise statement of errors complained of on appeal pursuant to
Pa. R.A.P. 1925(b). For the following reasons, we disagree.
In order to preserve issues for appeal, a party must raise them at the
earliest opportunity within each stage of a proceeding. Campbell v. Dep’t of Transp.,
Bureau of Driver Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014). Here, Licensee
raised a general issue regarding the unreliability of the speed measurement at the
hearing, but he did not specifically discuss the noncompliance issue. After the
Bureau rested its case, Licensee said he had nothing further “from an evidentiary
standpoint,” but that he did have some regulations and case law to submit.
(R.R. at 88.) The trial court directed the parties to submit those materials
subsequently in writing, rather than at the hearing:
[LICENSEE’S COUNSEL]: Yes, Your Honor. There is
some additional regulations [sic] that I also would like to
submit.
THE COURT: Okay.
[LICENSEE’S COUNSEL]: Should I talk about it now or
just wait?
THE COURT: . . . I can give you a couple days and hold
this in abeyance for a week.
[LICENSEE’S COUNSEL]: That’s fine. That’s probably
more efficient to do it in a written format.
....
7
THE COURT: . . . I’ll give you both till the 11th to submit
any additional case law or regulation that you would like
to submit to this Court . . . .
(Id. at 88-89.) Accordingly, Licensee filed a post-hearing brief reciting his argument
concerning the MPJA, including detailed discussion of the noncompliance issue and
regulations related to it3—the only regulations relevant in this proceeding. Licensee
attempted to introduce those regulations, as well as other relevant law, at the
hearing—indeed, he directly asked the trial court whether he should discuss them at
that point. Thus, Licensee addressed the noncompliance issue at his earliest
opportunity to do so—that is, in his post-hearing brief, which was the first
opportunity the trial court afforded to advance argument after the Bureau rested its
case. Cf. Campbell, 86 A.3d at 349 (affirming determination of waiver because
“near the close of the hearing, the trial court entertained argument regarding the
parties’ positions,” and licensee raised some arguments but not others in response).
Licensee, therefore, preserved the noncompliance issue in the proceedings below.
With respect to waiver under Pa. R.A.P. 1925(b), we note that a party’s
failure to include an issue in its Rule 1925(b) statement waives that issue on appeal.
Pa. R.A.P. 1925(b)(4)(vii). Importantly, however, “[e]ach error identified in the
[Rule 1925(b) s]tatement will be deemed to include every subsidiary issue which
was raised in the trial court.” Pa. R.A.P. 1925(b)(4)(v). Licensee’s Rule 1925(b)
statement complains that the trial court erred “because [the Bureau] failed to
establish that Officer Lee had the authority to arrest [Licensee] . . . under [the
MPJA].” The issue of probable cause is clearly a subsidiary issue of the MPJA
authority issue, and the noncompliance issue is, in turn, a subsidiary issue
concerning probable cause. As we determined above, Licensee raised the
3
67 Pa. Code §§ 105.71-.75
8
noncompliance issue in the trial court. Licensee’s Rule 1925(b) statement is,
therefore, deemed to include the noncompliance issue, and that issue is not waived.
B. Probable Cause
We now examine whether, as Licensee claims, Officer Lee lacked
authority to invoke the Implied Consent Law in Peters Township. To invoke the
Implied Consent Law outside his own jurisdiction, an officer must have legislative
authorization to make an extraterritorial arrest in the jurisdiction where the arrest
occurs. McKinley v. Dep’t of Transp., Bureau of Driver Licensing, 838 A.2d 700,
706 (Pa. 2003). Otherwise, such an officer is not a “police officer” as required by
Section 1547(a) of the Implied Consent Law, and any refusal of a chemical test has
no legal effect. Id. at 704-05; Horton v. Dep’t of Transp., Bureau of Driver
Licensing, 694 A.2d 1, 3 (Pa. Cmwlth. 1997); see Martin v. Dep’t of Transp., Bureau
of Driver Licensing, 905 A.2d 438, 448 (Pa. 2006). The General Assembly has
granted extraterritorial authority under the MPJA in limited circumstances, including
the circumstance in which a police officer follows a person in hot pursuit into a
neighboring jurisdiction. See 42 Pa. C.S. § 8953(a)(2). In order to rely upon that
particular authority, however, a police officer must “[have] probable cause to believe
[that an offense] was committed[] within his primary jurisdiction.” Id. In keeping
with this longstanding framework of authority, the parties do not dispute that Officer
Lee’s pursuit of Licensee into Peters Township and subsequent invocation of the
Implied Consent Law must have relied on probable cause. 4
4
Because the probable cause requirement arises from the MPJA, on which Officer Lee
must have relied, other standards applied to traffic stops outside the MPJA context are not relevant
in this case. This includes “reasonable suspicion,” upon which the Bureau appears to rely in part,
which is insufficient as a matter of law to satisfy the probable cause requirement of
Section 8953(a)(2) of the MPJA. See Cmwlth. v. McCandless, 648 A.2d 309, 311 (Pa. 1994).
9
Furthermore, this Court has established that “if [a] licensee raises the
issue of the authority of the arresting officer to enforce the Vehicle Code [including
the Implied Consent Law], the Court places the burden on [the Bureau] to prove the
authority of the arresting officer in essence as a part of [the Bureau’s] prima facie
showing that the arrest was by a police officer.” McKinley v. Dep’t of Transp.,
Bureau of Driver Licensing, 739 A.2d 1134, 1136 (Pa. Cmwlth. 1999) (en banc)
(internal quotation marks omitted), vacated on other grounds, 769 A.2d 1153
(Pa. 2001); see Kline v. Dep’t of Transp., Bureau of Driver Licensing, 706 A.2d 909,
910 (Pa. Cmwlth. 1998) (“[T]he Department bears the burden of proving that the
officer has legal authority to make the arrest.”), rev’d on other grounds,
741 A.2d 1281 (Pa. 1999); Snyder v. Cmwlth., 640 A.2d 490, 492
(Pa. Cmwlth. 1994) (en banc). Importantly for the instant case, the Bureau’s burden
includes the obligation to introduce evidence showing that the particular
requirements of a statutory grant of authority are satisfied. See Snyder,
640 A.2d 490, 492-94 (reversing suspension where Bureau failed to introduce
evidence that officer’s employing university was “state-aided,” when officer’s
authority rested on statute addressing state-aided institutions). While the extent of
police authority required by the Implied Consent Law has evolved over time,5 the
Pennsylvania Supreme Court has never disturbed this Court’s precedent placing the
burden of proving the requisite authority on the Bureau once a licensee questions
that authority. In sum, once authority under Section 8953(a)(2) of the MPJA
becomes an issue, the Bureau bears the burden of demonstrating that the officer had
the probable cause required by that section.
5
See McKinley, 838 A.2d 700; McKinley v. Dep’t of Transp., Bureau of Driver Licensing,
769 A.2d 1153 (Pa. 2001); and Kline v. Dep’t of Transp., Bureau of Driver Licensing
741 A.2d 1281 (Pa. 1999).
10
Probable cause is determined by examining the totality of the
circumstances as they appeared to the officer at the time in question. Cmwlth. v.
Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005), appeal denied, 920 A.2d 831
(Pa. 2007). It is not an inquiry into objective fact—i.e., whether the driver was
actually speeding—but examines the circumstances as seen “through the eyes of an
experienced, trained police officer” and asks whether they could support such an
officer in a reasonable inference of criminal activity. Weems v. Dep’t of Transp.,
Bureau of Driver Licensing, 990 A.2d 1208, 1213 (Pa. Cmwlth. 2010) (quoting
Cmwlth. v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997)); see Dommel,
885 A.2d at 1002; Turano v. Hunt, 631 A.2d 822, 825 (Pa. Cmwlth. 1993), appeal
denied, 647 A.2d 905 (Pa. 1994) (“[P]robable cause is a reasonable ground of
suspicion.”) The quantum of proof necessary for probable cause is both less than
that needed for “proof beyond a reasonable doubt,” Turano, 631 A.2d at 825, and
more flexible than standards of proof in formal trials, Dommel, 885 A.2d at 1002
(“[F]inely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence . . . have no place in the probable-cause decision.”
(quoting Maryland v. Pringle, 540 U.S. 366 (2003))). Finally, in formulating
probable cause, an officer may rely upon his own observations, Commonwealth v.
Harris, 176 A.3d 1009, 1019-20 (Pa. Super. 2017), and upon other information that
is “reasonably trustworthy,” Moody v. Philadelphia Housing Authority,
673 A.2d 14, 17 (Pa. Cmwlth. 1996).
Examining Licensee’s arguments and the evidence in light of the
controlling probable cause standard, we are not persuaded that the Bureau failed to
show the requisite probable cause in this case. The Bureau presented Officer Lee’s
testimony that he used the Accutrak his department provided to measure Licensee’s
11
speed at more than 15 miles per hour above the posted speed limit, entirely within
his own jurisdiction. It is apparent from Officer Lee’s testimony that he relied on
his understanding of the distance between the speed lines and the correct procedures
for operating the Accutrak to infer that Licensee was speeding. Licensee argues that
this inference was not reasonable for four distinct reasons, but after the following
analysis, we do not agree.
First, Licensee argues that the Bureau’s failure to prove that the
Accutrak complied with statutory requirements (the noncompliance issue) precludes
probable cause in this case. Section 3368 of the Vehicle Code and associated
regulations6 provide for the classification, approval, testing, and certification of
speed measurement devices. Those requirements apply, by their own terms,7 in
proceedings seeking a speeding conviction, but are not prerequisites to probable
cause. Officer Lee used his department-provided Accutrak to measure Licensee’s
speed. There is no evidence that he had reason to doubt its accuracy, and the absence
of a certification of accuracy from the record is not relevant to whether, at the time
in question, Officer Lee’s inference from the Accutrak’s measurement was
reasonable. In other words, Officer Lee was entitled to make a reasonable inference,
based on his experienced use of the Accutrak, that Licensee was speeding.
Licensee’s attempt to invalidate the speed measurement on grounds of
6
This section requires that devices like the Accutrak be “approved by the [D]epartment”
and “tested for accuracy” within a period prescribed by the statute. See 75 Pa. C.S. § 3368(d). In
addition, the Department’s regulations establish technical specifications for approved stopwatches
and provide for accuracy testing procedures and criteria. See 67 Pa. Code §§ 105.71-.75.
7
Section 3368(b) of the Vehicle Code allows a certificate of testing to serve as competent,
prima facie evidence of a device’s accuracy “in every proceeding in which a violation of this title
is charged,” and Section 3368(c)(4) provides that “[n]o person may be convicted” unless the
measured speed is beyond the margin of error established by that section. (Emphasis added.)
Licensee was neither charged with nor convicted of speeding in this proceeding.
12
noncompliance with the Vehicle Code would be appropriate when challenging a
speeding citation, but it is not relevant to the question of probable cause at issue in
this license suspension proceeding.
Licensee is correct that our Supreme Court has discussed
noncompliance with Section 3368 of the Vehicle Code in concluding that probable
cause was absent in the license suspension context. See Martin, 905 A.2d 438;
McCandless, 648 A.2d 309. But those cases are distinguishable from the instant
case under probable cause analysis. In both Martin and McCandless, the officers
used their vehicles’ speedometers to measure speed, but they did not do so for the
full distance required by the Vehicle Code8 before leaving their own jurisdictions.
The Supreme Court held that a measurement for only part of the required distance
does not support probable cause. McCandless, 648 A.2d at 310 n.*, 311.9 That
holding makes sense in the context of speedometer measurements, because the
officer knew at the time that he had to measure speed for a certain minimum distance
in order to comply with the Vehicle Code, and he alone controlled the distance for
which he would follow. Thus, it was unreasonable for him to rely on a measurement
for less than that statutorily mandated distance, and probable cause was absent.
Here, Officer Lee used his Accutrak in accordance with his training and experience;
unlike in the speedometer cases, he did not ignore Vehicle Code requirements with
which he personally was responsible to comply. Instead, he reasonably relied on the
accuracy of his department-provided Accutrak, and his speed measurement supports
probable cause.
8
Section 3368(a) of the Vehicle Code permits police to use speedometers to measure
speed, but it requires that the speed be measured for at least three-tenths of a mile.
9
This proposition is contained in the sole footnote of our Supreme Court’s opinion in
McCandless, which is introduced by an asterisk rather than a numeral.
13
Second, Licensee argues that the Bureau did not sufficiently establish
the actual distance between the two speed lines. This contention appears to rely on
Officer Lee’s admission that he did not measure the distance between the lines
himself. The relevant inquiry, however, is not the actual distance between the lines,
but whether Officer Lee reasonably believed them to be the claimed distance apart.
His knowledge at the time—the touchstone for probable cause analysis—included,
according to his testimony, the knowledge that his department routinely measured
and repainted the speed lines, and that they were 0.0331 miles apart. (R.R. at 43-44.)
Even if he was factually mistaken about that distance, his reliance on his knowledge
at the time was sufficiently reasonable to support probable cause.
Third, Licensee argues that Officer Lee’s timing of Licensee’s speed
for only 1.96 seconds was too brief and created too much potential for error.
Considering Officer Lee’s testimony, we find this argument unpersuasive. Officer
Lee testified that the distance over which he timed Licensee—175 feet—was greater
than in most speed detection setups that his department uses. (Id. at 43.) In response
to a statement at the hearing that some studies have found longer distances to be
more appropriate, Officer Lee said that such information was unknown to him at the
time he stopped Licensee. (Id. at 44.) Thus, again, he reasonably relied on
information available to him at the time and, therefore, had probable cause to believe
Licensee was speeding.
Finally, Licensee argues that the speed measurement is unreliable
because Officer Lee did not recall exactly when he started and stopped the Accutrak
in this particular case. But the fact that Officer Lee might have deviated from his
usual timing procedures is not sufficient to undermine his other testimony that
supports probable cause. He testified that he had been an officer with the department
14
for more than two years when he stopped Licensee, and that he has measured speed
at that location with his Accutrak “countless” times (Id. at 4, 59.) He also explained
that his usual practice is to start the clock when the vehicle’s front tires cross the first
line, and stop the clock when the rear tires cross the second line, thus creating a
margin for error in the driver’s favor. (Id. at 44-45.) Taken together, this testimony
meets the Bureau’s burden to prove that Officer Lee reasonably relied on the
Accutrak’s measurement for probable cause. The absence of certainty does not undo
that showing.
In sum, we conclude that the Bureau met its burden of showing the
probable cause required by Section 8953(a)(2) of the MPJA, and we find Licensee’s
arguments to the contrary unpersuasive. We conclude, therefore, that the trial court
did not err when it determined that Officer Lee had authority under the MPJA to act
as a police officer in Peters Township when he arrested Licensee and asked him to
submit to chemical breath testing pursuant to the Implied Consent Law. We now
turn to Licensee’s second argument on appeal.
III. REASONABLE GROUNDS
Licensee also asserts that, even if Officer Lee acted properly under the
MPJA to invoke the Implied Consent Law, the Bureau failed to demonstrate that he
had reasonable grounds to believe that Licensee had engaged in DUI. In response,
the Bureau contends that the trial court properly determined that Officer Lee’s
credible testimony established that he had reasonable grounds to believe that
Licensee had engaged in DUI. Initially, we note that the question of reasonable
grounds is a legal one fully reviewable by this Court on appeal. Walkden v. Dep’t
of Transp., Bureau of Driver Licensing, 103 A.3d 432, 436 (Pa. Cmwlth. 2014).
15
Concerning the Bureau’s burden of proof in a license suspension case,
we have written:
It is well established that [the Bureau] must
prove . . . [that] the licensee . . . 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.
Yencha v. Dep’t of Transp., Bureau of Driver Licensing, 187 A.3d 1038, 1044
(Pa. Cmwlth. 2018) (emphasis added); see also 75 Pa. C.S. § 1547(a) (establishing
implied consent to 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 vehicle in violation of [the Vehicle Code10]” (emphasis added)). The
“reasonable grounds” standard under the Implied Consent Law is not demanding,
and an officer’s belief need not be factually correct in order to be reasonable.
Sisinni v. Dep’t of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1259
(Pa. Cmwlth. 2011), appeal denied, 44 A.3d 1163 (Pa. 2012). “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, 737 A.2d 1203, 1207 (Pa.
1999) (emphasis added). An officer need not believe a licensee’s statements if other
circumstances support a different, but reasonable, conclusion. See Dep’t of Transp.,
Bureau of Driver Licensing v. Bird, 578 A.2d 1345, 1349 (Pa. Cmwlth. 1990) (en
banc).
10
75 Pa. C.S. §§ 101-9805.
16
In determining whether the Bureau has shown reasonable grounds, a
court must consider the totality of the circumstances available to the officer at the
time, as reflected in the record. Banner, 737 A.2d at 1207. There is no set list of
prerequisite circumstances for a conclusion of reasonable grounds, but relevant
circumstances include the odor of alcohol, uncooperative behavior, and glassy eyes
when paired with at least one other physical indication of intoxication.
Stancavage v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895, 899
(Pa. Cmwlth. 2009), appeal denied, 995 A.2d 355 (Pa. 2010). Specifically with
regard to uncooperative behavior, “[r]efusing to submit to field sobriety testing can
be considered.” Koutsouroubas v. Dep’t of Transp., Bureau of Driver Licensing,
61 A.3d 349, 353 n.7 (Pa. Cmwlth. 2013). In reviewing the Bureau’s evidence, we
bear in mind that determinations as to the credibility and weight assigned to evidence
are solely for the factfinder. Millili v. Dep’t of Transp., Bureau of Driver Licensing,
745 A.2d 111, 113 (Pa. Cmwlth. 2000) (en banc).
Here, it is not disputed that Licensee was driving the vehicle that
Officer Lee stopped. Officer Lee testified that he directly observed an odor of
alcohol about Licensee and that Licensee’s eyes were red and glassy. Officer Lee
administered the HGN field sobriety test and, upon receiving a result consistent with
at least some level of intoxication, asked Licensee to submit to two additional field
sobriety tests. Licensee refused, explaining that a medical condition in his leg would
prevent his performance of those tests—an explanation which Officer Lee was under
no obligation to believe, given the other indicia of intoxication he had observed.
Officer Lee then asked Licensee to take a prearrest breath test, which Licensee
refused without explanation. Based on all of these circumstances, which are
established by Officer Lee’s credited testimony, we conclude that the Bureau has
17
demonstrated that Officer Lee had reasonable grounds under the circumstances to
believe Licensee was driving under the influence of alcohol. The trial court did not
err in reaching the same conclusion.
IV. CONCLUSION
Because the trial court did not err in concluding that Officer Lee (1) had
police authority to stop Licensee and invoke the Implied Consent Law in Peters
Township, and (2) had reasonable grounds to believe Licensee was driving under
the influence of alcohol, the trial court properly denied Licensee’s appeal.
Accordingly, we will affirm the trial court’s order.
P. KEVIN BROBSON, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Z. Wilson, Jr., :
Appellant :
:
v. : No. 709 C.D. 2018
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 20th day of May, 2019, the order of the Court of
Common Pleas of Washington County, dated April 26, 2018, is AFFIRMED.
P. KEVIN BROBSON, Judge