J.T. Olt v. Bureau of Driver Licensing ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey T. Olt, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing : No. 1653 C.D. 2018
:
Jeffrey T. Olt, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 1654 C.D. 2018
Bureau of Driver Licensing : Submitted: June 21, 2019
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 15, 2019
Jeffrey T. Olt (Licensee) appeals from the Schuylkill County Common
Pleas Court’s (trial court) November 13, 2018 order denying and dismissing his
operating privilege suspension and disqualification appeals from the Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department). Licensee presents two issues for this Court’s review: (1) whether the
trial court erred by permitting a testifying witness to describe out-of-court statements
made by a non-testifying witness; and (2) whether the trial court erred by dismissing
Licensee’s appeals because the arresting officer erroneously utilized a breath testing
form to obtain blood test consent, and contradicted his direct testimony and the
Department’s certified documents. After review, we affirm.
On January 4, 2018, Pennsylvania State Police Troopers Stephen
Kleeman (Trooper Kleeman) and Jeffrey Hummel (Trooper Hummel) (collectively,
Troopers) were separately dispatched for a reported disturbance involving a pick-up
truck operator. They proceeded to Olt’s Trucking, the business to which the truck
was registered.
While at Olt’s Trucking, Licensee approached the Troopers at moderate
speed in a utility truck, stopped the vehicle, and began an aggressive interaction with
the Troopers. Specifically, Licensee threatened to kill Trooper Hummel and his
family, referred to him as “Howard Stern,” and accused him of stealing Licensee’s
red beet eggs. Reproduced Record (R.R.) at 190a. During the interaction, Licensee
backed up the vehicle and then pulled forward at a high rate of speed in Trooper
Hummel’s direction, leading Trooper Hummel to believe Licensee was going to
strike him. Trooper Hummel drew his weapon. Licensee stopped the vehicle, hid
behind the door, reiterated to Trooper Hummel that he was going to kill him and his
family, and lectured him about drawing his weapon.
Trooper Hummel observed that Licensee appeared agitated and
confused, his eyes were glossy, and his speech was slurred. Although the Troopers
believed that Licensee might be impaired, they did not detect an odor of alcohol on or
around him. Licensee got back into his vehicle and left the property. Believing that
Licensee should not be driving in his condition, the Troopers pursued Licensee with
their lights and sirens activated, but Licensee did not stop. During the pursuit,
Licensee traveled on both sides of the roadways and drove through a stop sign. The
2
chase1 ended when Licensee ran his vehicle off the road. Because Licensee refused
to get out of his vehicle, the Troopers forcibly removed him.
Once Licensee was in custody, Trooper Kleeman asked Pennsylvania
State Police drug recognition expert Corporal Rymarkiewicz (Corporal
Rymarkiewicz) to proceed to the Pennsylvania State Police barracks to conduct a
drug recognition evaluation (DRE) on Licensee because he believed that “something
was going on” with Licensee. R.R. at 34a. As Trooper Hummel transported
Licensee to the barracks, Licensee continued to refer to Trooper Hummel as “Howard
Stern,” and asked Trooper Hummel why he did not remember him from computer
classes they took together, despite that Trooper Hummel had not taken any computer
classes. Based on Trooper Hummel’s experience, he believed that Licensee “was
certainly under the influence” and that “he was certainly impaired of some sort of . . .
narcotic or prescription drug; and . . . was incapable of safely driving . . . .” R.R. at
75a-76a.
When Trooper Kleeman returned to the barracks, he learned that
Licensee was being uncooperative. Trooper Kleeman spoke with Licensee and
explained that although he did not smell alcohol on Licensee, he felt that a DRE was
warranted based on Licensee’s combative and nonsensical in-custody behavior during
the incident. Corporal Rymarkiewicz conducted Licensee’s DRE in Trooper
Kleeman’s presence. Based on Trooper Kleeman’s observations, and those of
Corporal Rymarkiewicz, Trooper Kleeman concluded that further testing was
warranted. Accordingly, Trooper Kleeman advised Licensee that he was under arrest
for suspected driving under the influence, and he read Licensee the implied consent
1
Although Licensee was traveling at low speed, the roads were snowy and icy, and Trooper
Hummel believed Licensee was driving too fast for those conditions.
3
warnings (DL-26 Form).2 The DL-26A Form (DL-26A Form) contained the
following warnings:
1. You are under arrest for driving under the influence of
alcohol or a controlled substance in violation of Section
3802 of the Vehicle Code[, 75 Pa.C.S. § 3802].
2. I am requesting you to submit to a chemical test of
breath.
3. If you refuse to submit to the breath test, your operating
privilege will be suspended for at least 12 months. If you
previously refused a chemical test or were previously
convicted of driving under the influence, your operating
privilege will be suspended for up to 18 months. If your
operating privilege is suspended for refusing chemical
testing, you will have to pay a restoration fee of up to
$2,000[.00] in order to have your operating privilege
restored. In addition, if you refuse to submit to the breath
test, and you are convicted of violating Section 3802(a)(1)
(relating to impaired driving) of the Vehicle Code, then,
because of your refusal, you will be subject to more severe
penalties set forth in Section 3804(c) (relating to penalties)
of the Vehicle Code. These are the same penalties that
would be imposed if you were convicted of driving with the
highest rate of alcohol, which include a minimum of 72
consecutive hours in jail and a minimum fine of $1,000.00,
up to a maximum of five years in jail and a maximum fine
of $10,000[.00].
R.R. at 120a (emphasis added). Although the DL-26A Form pertained to breath test
consent, Trooper Kleeman substituted the word “blood” for the word “breath” as he
read the implied consent warnings to Licensee. R.R. at 50a, 52a-53a. Licensee
refused to submit to the test.
2
The Department’s “DL-26 Form contains the chemical test warnings required by Section
1547 of the Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent
warnings.” Vora v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa.
Cmwlth. 2013). The DL-26A Form is used to provide warnings and obtain consent when law
enforcement seeks a breath test, and a DL-26B implied consent warning form is used when law
enforcement requests a blood test.
4
By notice mailed on April 25, 2018, the Department suspended
Licensee’s operating privilege for one year (Suspension Notice) pursuant to Section
1547 of the Vehicle Code (Vehicle Code) (commonly referred to as the Implied
Consent Law), 75 Pa.C.S. § 1547. Also on April 25, 2018, the Department informed
Licensee of the lifetime disqualification of his commercial driver’s license
(Disqualification Notice), as required by Section 1611(c) of the Uniform Commercial
Driver’s License Act (UCDL),3 75 Pa.C.S. § 1611(c), because his January 4, 2018
chemical testing refusal was his second violation of Section 1611(a) of the UCDL, 75
Pa.C.S. § 1611(a).
On May 4, 2018, Licensee filed a pro se statutory appeal in the trial
court. On May 25, 2018, Licensee’s counsel (Counsel) appealed from both the
license suspension and commercial license disqualification in the trial court. On
September 20, 2018, the trial court held a de novo hearing, consolidating Licensee’s
pro se and counseled appeals. At the hearing, Trooper Kleeman and Trooper
Hummel described the relevant events of January 4, 2018, and the grounds upon
which they believed Licensee was operating his vehicle while under the influence of
a controlled substance. Corporal Rymarkiewicz did not attend the hearing. Licensee
did not testify or present evidence.
On November 13, 2018, the trial court dismissed Licensee’s appeals.
The trial court found the Troopers’ testimony credible, concluded the Troopers had
reasonable grounds to believe Licensee was operating his vehicle while under the
influence of a controlled substance, and determined that Licensee had refused consent
for chemical testing. Licensee appealed to this Court.4
3
75 Pa.C.S. §§ 1601-1622. Section 1611(c) of the UCDL mandates lifetime disqualification
of commercial drivers twice convicted of violating Section 1611(a) of the UCDL, or the subject of
two or more test refusals under Section 1613 of the UCDL, 75 Pa.C.S. § 1613 (pertaining to implied
consent requirements for commercial motor vehicles) or any combination thereof.
4
“Our standard of review is limited to determining whether [the trial court] committed an
error of law, whether [the trial court] abused its discretion, or whether the findings of fact are
5
Initially,
[i]n order to sustain the appeal of a license suspension under
the Implied Consent Law:
The Department must prove at a statutory appeal
hearing that the licensee (1) was arrested for driving
while under the influence by a police officer who had
reasonable grounds to believe that the licensee was
operating a vehicle while 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 a license
suspension.
Zwibel v. Dep’t of Transp., Bureau of Driver Licensing, 832
A.2d 599, 604 (Pa. Cmwlth. 2003) (emphasis in original).
With regard to the first prong of this burden,
[a]n officer has reasonable grounds to believe an
individual was operating a motor vehicle under the
influence of alcohol ‘if a reasonable person in the
position of a police officer, viewing the facts and
circumstances as they appeared to the officer at the
time, could conclude that the driver drove his car while
under the influence of alcohol.’ McCallum v.
Commonwealth, . . . 592 A.2d 820, 822 ([Pa. Cmwlth.]
1991). The issue of reasonable grounds is decided on
a case-by-case basis, and an officer’s reasonable
grounds are not rendered void if it is later discovered
that the officer’s belief was erroneous. Id. The
officer’s belief must only be objective in light of the
surrounding circumstances. Moreover, the existence
of reasonable alternative conclusions that may be
made from the circumstances does not necessarily
render the officer’s belief unreasonable. Id.
Id.
supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176
A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).
6
Regula v. Dep’t of Transp., Bureau of Driver Licensing, 146 A.3d 836, 842-43 (Pa.
Cmwlth. 2016).5
Licensee first argues that the trial court erred when it permitted Trooper
Kleeman to testify regarding Corporal Rymarkiewicz’s post-DRE conclusion.
Licensee specifically contends the trial court erred when it overruled his hearsay
objection during the following exchange between the Department’s counsel and
Trooper Kleeman:
Q. . . . When [Corporal Rymarkiewicz] was doing the . . .
DRE test evaluation, did he ever inform you what his . . .
conclusion was based on his DRE observations?
A. His conclusion would have been that he --
[Counsel]: I’m going to object to his conclusion, Your
Honor. That’s clearly hearsay testimony which would need
[Corporal] Rymarkiewicz [sic] to testify.
THE COURT: It’s overruled. You may answer the
question.
[Trooper Kleeman]: Based on his observations, he would
have -- he would have taken him for a blood test.
R.R. at 58a.
5
“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 v. Dep’t of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1259 (Pa. Cmwlth. 2011).
While there is no set list of behaviors that a person must exhibit for an
officer to have reasonable grounds for making an arrest, case law has
provided numerous examples of what this Court has accepted as
reasonable grounds in the past, e.g., staggering, swaying, falling
down, belligerent or uncooperative behavior, slurred speech, and the
odor of alcohol.
Stancavage v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa. Cmwlth.
2009). In Matthews v. Commonwealth, 540 A.2d 349, 350 (Pa. Cmwlth. 1988), “[t]he police officer
smelled no alcohol on [the driver’s] breath but noted that his eyes were glassy and at times he was
unsteady on his feet and combative.” This Court held that the driver’s “bizarre behavior” provided
reasonable grounds for the police officer to request chemical testing. Id. at 351.
7
Licensee asserts:
Despite Corporal Rymarkiewicz not being present in court,
despite Corporal Rymarkiewicz’s report not being admitted,
and further despite Corporal Rymarkiewicz not being
qualified as an expert witness, Corporal Rymarkiewicz’s
purported conclusion as to [Licensee’s] alleged impairment
was admitted over objection.
Licensee Br. at 11. Licensee insists that “Corporal Rymarkiewicz’s opinion was
crucial to the disposition of the case, as his opinion formed the very basis for Trooper
Kleeman to request [Licensee] to submit to chemical testing.”6 Id.
This Court has explained:
Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. A
statement may be hearsay only if it is offered to prove the
truth of the matter asserted. But, an out-of-court statement
offered to explain a course of conduct is not hearsay.
Jerry v. Dep’t of Corr., 990 A.2d 112, 116 (Pa. Cmwlth. 2010) (citations omitted).
Thus, an out-of-court statement is admissible to demonstrate motivation for an
arresting officer’s course of conduct. See Menosky v. Commonwealth, 550 A.2d 1372
(Pa. Cmwlth. 1988); see also DiSalvatore v. Dep’t of Transp., Bureau of Driver
Licensing (Pa. Cmwlth. No. 835 C.D. 2012, filed November 13, 2012); Lubman v.
Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. No. 117 C.D. 2011, filed
February 1, 2012).7
6
Notably, Licensee does not specifically argue that his behavior did not provide the
Troopers reasonable grounds to believe he was operating the vehicle under the influence of a
controlled substance. Rather, while stressing the impact of Corporal Rymarkiewicz’s opinion,
Licensee ignores Trooper Kleeman’s testimony of his personal observations.
7
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). DiSalvatore and Lubman are cited for their persuasive
value.
8
In the instant matter, Corporal Rymarkiewicz’s conclusion was not
offered for the truth of the matter asserted but, rather, “to establish [Trooper
Kleeman’s] state of mind, i.e., to establish that [he] had reasonable grounds to believe
Licensee was [under the influence of a controlled substance].” Menosky, 550 A.2d at
1374. Further, Trooper Kleeman’s testimony, which the trial court deemed credible,
reflects that Trooper Kleeman did not rely only on Corporal Rymarkiewicz’s
conclusions in requesting Licensee submit to chemical testing. Rather, Trooper
Kleeman testified that his request was also based on his personal observations of
Licensee’s behavior and his professional experience. See R.R. at 34a, 37a, 47a, 58a-
59a. In fact, when Licensee’s counsel insisted during cross-examination that “[i]t’s
only based upon Corporal Rymarkiewicz’s DRE exam that [he] asked for the
chemical testing to be performed[,]” Trooper Kleeman responded, “and my
observations.” R.R. at 47a (emphasis added). Under these circumstances, the trial
court did not err by permitting Trooper Kleeman’s testimony describing Corporal
Rymarkiewicz’s post-DRE conclusion.
Licensee next asserts that the trial court erred by denying his appeals
because Trooper Kleeman: erroneously used a DL-26A Form pertaining to breath
testing rather than blood testing; provided cross-examination testimony that
contradicted his direct testimony;8 and created an “irreconcilable contradiction” by
testifying that Licensee refused to submit to a blood test, where the Department’s
certified documents reflect that Licensee refused to submit to a breath test. Licensee
Br. at 19.
8
Trooper Kleeman testified on direct examination that he had read the DL-26A Form
implied consent warnings to Licensee verbatim, and similarly testified at a preliminary hearing
involving criminal charges arising from the incident. Although the criminal charges were
dismissed, that outcome is not relevant here. See Regula, 146 A.3d at 843 (“[T]he result of a
criminal DUI proceeding and the legality of the underlying traffic stop are not relevant to an appeal
of a civil license suspension matter based on a licensee’s refusal to submit to a chemical test in
accordance with the Implied Consent Law.”).
9
In Jackson v. Department of Transportation, Bureau of Driver
Licensing, 191 A.3d 931 (Pa. Cmwlth. 2018),
[the a]rresting [o]fficer testified that the warnings he read
from the card were the warnings in the DL-26A Form
‘verbatim.’ Although the DL-26A Form stated ‘Use For
Breath Test’ . . . , [the a]rresting [o]fficer credibly testified
that at the scene of the arrest he asked [the l]icensee to
submit to a blood test . . . .
....
Although the DL-26A Form used the word ‘breath’ instead
of ‘blood,’ [the a]rresting [o]fficer credibly testified that he
requested a blood test, not a breath test, at the scene of the
arrest. [The l]icensee failed to present any evidence or even
allege that [the a]rresting [o]fficer read the word ‘breath’
instead of ‘blood’ when giving the warnings for the blood
test.
Id. at 936 (record citations omitted). Based on the arresting officer’s testimony and
the trial court’s credibility findings, the Jackson Court held that the arresting officer
read the proper warnings for a chemical blood test under Section 1547(b)(2) of the
Vehicle Code.
Here, Licensee argues that in prior testimony, Trooper Kleeman stated
that he read the implied consent warnings from the DL-26A Form to Licensee
“verbatim,” but when Counsel pointed out to Trooper Kleeman on cross-examination
that the DL-26A Form warnings pertained to breath tests rather than blood tests,
Trooper Kleeman insisted that he had substituted the word “blood” for “breath.” See
R.R. at 50a-53a.
The law is well-established that
‘[d]eterminations as to the credibility of witnesses and the
weight assigned to the evidence are solely within the
province of the trial court as fact[]finder.’ Reinhart v. Dep’t
of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765
(Pa. Cmwlth. 2008). ‘As the factfinder, the trial court is
free to accept or reject any testimony in whole or in part,
10
subject only to review by this court for an abuse of
discretion.’ DiCola v. Dep’t of Transp., Bureau of Driver
Licensing, 694 A.2d 398, 400 (Pa. Cmwlth. 1997).
Stancavage v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa.
Cmwlth. 2009). Here, the trial court observed Trooper Kleeman’s testimony and, as
fact-finder, was free to accept or reject the veracity of Trooper Kleeman’s statements.
It found Trooper Kleeman’s clarified testimony credible. We discern no abuse of
discretion. Accordingly, this Court holds that, like the arresting officer in Jackson,
by substituting the word “blood” for “breath,” Trooper Kleeman read the proper
warnings for a chemical blood test under Section 1547(b)(2) of the Vehicle Code and
Licensee refused the test. Licensee’s argument to the contrary lacks merit.
Similarly, there is no merit to Licensee’s assertion that “[a]n
irreconcilable conflict exists as between Trooper Kleeman’s testimony and the
certified records . . . introduced by [the Department]” because the Department’s
certified records reflect that the license suspension and commercial license
disqualification resulted from Licensee’s refusal to submit to a breath test, not a blood
test. Licensee Br. at 19.
Two of the three Department documents to which Licensee specifically
refers are titled “Certification and Attestation,” wherein the Department’s records
custodian certified that Department records searches produced documents that
included the “chemical testing warnings and report of refusal to submit to a breath
test[.]” R.R. at 101a, 117a. Thus, the two certifications merely described the DL-
26A Form which Trooper Kleeman filed. The third document, titled “Certification
Statement” reflects that a search for Licensee’s commercial driver’s license produced
a record with a violation of “Chemical Testing to Determine Amount of Alcohol”
with “Action Taken By Department” of “Official Notice of Disqualification for
Refusal to Submit to Test . . . .” R.R. at 122a. Notwithstanding, apart from the DL-
26A Form, the actual records referenced in the Department’s certifications contain
11
the phrase “chemical test refusal.” R.R. at 113a, 129a. Licensee’s Suspension and
Disqualification Notices similarly refer to a “chemical test refusal” under Section
1547 of the Vehicle Code. R.R. 102a, 118a. Therefore, the only arguable “conflict”
between Trooper Kleeman’s testimony and the Department’s documents is contained
in certifications describing the records in the Department’s possession, and in the
DL-26A Form, which Trooper Kleeman’s testimony clarified. See Jackson.
Accordingly, Licensee’s argument fails.
For all of the above reasons, the trial court’s order is affirmed.9
___________________________
ANNE E. COVEY, Judge
9
On June 20, 2019, Licensee filed an Application Requesting Oral Argument (Argument
Application), averring that “the intricate factual issues pertaining to the improper admission of
expert testimony via hearsay, and the conflicts as to the type of chemical test that was purportedly
refused could be best explained via oral argument.” Argument Application at 2. This Court
disagrees, and denies Licensee’s Argument Application.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey T. Olt, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing : No. 1653 C.D. 2018
:
Jeffrey T. Olt, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 1654 C.D. 2018
Bureau of Driver Licensing :
ORDER
AND NOW, this 15th day of August, 2019, the Schuylkill County
Common Pleas Court’s November 13, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge