J. Rodriguez v. Bureau of Driver Licensing ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremiah Rodriguez, :
Appellant :
:
v. : No. 965 C.D. 2022
: Submitted: May 5, 2023
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 16, 2023
Jeremiah Rodriguez (Licensee) appeals from the August 17, 2022 Order1 of
the Court of Common Pleas of Philadelphia County (common pleas) denying his
administrative appeal from a one-year suspension of his operating privileges2
imposed by the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Bureau) under Section 1547(b)(1)(i) of the Vehicle
Code, 75 Pa.C.S. § 1547(b)(1)(i), commonly known as the Implied Consent Law,
for his refusal to submit to chemical testing.3 The sole issue Licensee raises on
1
The Order is dated August 17, 2022, and was exited August 18, 2022.
2
Licensee’s administrative appeal and the trial court’s opinion refer to the suspension as a
90-day suspension, although the official notice of suspension reflects a suspension period of 1
year.
3
Section 1547(b)(1)(i) of the Vehicle Code states:
(Footnote continued on next page…)
appeal is whether the police had reasonable grounds to believe Licensee was
operating or in actual physical control of the motor vehicle while driving under the
influence of alcohol or a controlled substance. After Licensee filed his brief, the
parties filed a Joint Stipulation and Motion stating that, after review of the transcript,
there were no reasonable grounds to believe Licensee was operating a vehicle while
driving under the influence and that the Bureau did not meet its burden of proof. For
the reasons that follow, we agree that the Bureau did not meet its burden of proof,
and, therefore, reverse.
I. BACKGROUND
On July 3, 2020, the Bureau issued a notice of suspension of Licensee’s
operating privilege for a period of one year as a result of a “violation of Section 1547
of the Vehicle Code, CHEMICAL TEST REFUSAL.” (Ex. C-1.) On July 31, 2020,
Licensee filed a notice of appeal with common pleas, appealing the suspension.
(Record (R.) Item 1.) Following a number of continuances, common pleas held a
hearing on August 17, 2022.
At the hearing, Officer Edwin Ocasio of the Philadelphia Police Department
testified4 that after being called to the scene of an automobile accident at
If any person placed under arrest for a violation of [S]ection 3802 [of the Vehicle
Code, 75 Pa.C.S. § 3802 (relating to driving under the influence of alcohol or
controlled substance)] is requested to submit to chemical testing and refuses to do
so, the testing shall not be conducted but upon notice by the police officer, the
[Bureau] shall suspend the operating privilege of the person . . . [e]xcept as set forth
in subparagraph (ii), for a period of 12 months.
75 Pa. C.S. § 1547(b)(1)(i).
4
The entirety of Officer Ocasio’s testimony is found on pages 17 and 18 of the Reproduced
Record.
2
approximately 1:54 a.m. on June 14, 2020, he encountered Licensee who was
“staggering slightly” and had “slightly slurred speech.” (Reproduced Record (R.R.)
at 18.5) Officer Ocasio did not perform any field sobriety tests on Licensee as he
was not trained to do so. (Id.) Officer Ocasio stated that he did “not recall” smelling
alcohol on Licensee. (Id.) After approximately 10 to 15 minutes, he placed Licensee
under arrest for suspicion of driving under the influence. (Id.) On cross-
examination, Officer Ocasio testified Licensee was not in the vehicle when he
arrived at the scene and there were numerous other people present. (Id.) Officer
Ocasio testified he did not recall finding keys on Licensee, whether Licensee had
said he was driving, or in whose name the vehicle was registered. (Id.) When asked
if he smelled any drugs or alcohol, Officer Ocasio stated “I think I would remember[]
drugs and alcohol.” (Id.) In addition to Officer Ocasio, Officer Matthew Domenic
of the Accident Investigation District testified that he was assigned to conduct
chemical testing of Licensee. Licensee’s counsel stipulated that Licensee was read
the DL-26 form and refused chemical testing. (Id. at 18-19.) At the conclusion of
the hearing, Licensee’s counsel argued the Bureau did not meet its burden of proof,
including, relevant here, showing that Officer Ocasio had reasonable grounds to
believe Licensee was operating the vehicle. (Id. at 19.)
Following the hearing, common pleas issued its Order denying Licensee’s
appeal. Licensee filed a timely Notice of Appeal, and on September 7, 2022,
common pleas entered an order directing Licensee to file a Concise Statement of
Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
5
Although Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173,
requires the reproduced record to be numbered in Arabic figures followed by a small “a,” the
Reproduced Record here utilizes only Arabic figures.
3
Procedure 1925(b), Pa.R.A.P. 1925(b) (1925(b) Statement). In his 1925(b)
Statement, Licensee asserted that common pleas
committed an abuse of discretion and/or an error of law in finding that
[] Officer [Ocasio] had reasonable grounds to conclude that [Licensee]
was operating a motor vehicle while under the influence of alcohol or
a controlled substance where the evidence on the record demonstrated
that [] Officer [Ocasio] didn’t witness [Licensee] driving a vehicle,
didn’t perform any standardized field sobriety tests on [Licensee],
didn’t smell any alcohol or drugs on [Licensee], [and] didn’t establish
ownership of the vehicle[.]
(R.R. at 13-14.) On October 7, 2022, common pleas issued a 1925(a) Opinion in
support of its Order denying Licensee’s administrative appeal. Therein, common
pleas explained its reasoning as follows:
Probable cause exists when the officer has knowledge of sufficient facts
and circumstances to warrant a prudent person to believe that the driver
has been driving under the influence of alcohol or a controlled
substance. Commonwealth v. Welshans, . . . 580 A.2d 379, 381 ([Pa.
Super.] 1990).
In the facts presented, although the arresting officer did not witness
[Licensee] driving the vehicle, the officer’s testimony shows that there
was probable cause for him to believe that [Licensee] had been driving
under the influence of alcohol or a controlled substance. Officer Ocasio
testified that he arrived to the scene of the auto accident, spoke with
[Licensee], and noticed that he was staggering and slurring his speech.
. . . Further, [Licensee] argues that there is evidence that Officer Ocasio
did not smell alcohol or drugs on [Licensee] which is not true. Officer
Ocasio testified that he did not recall if he smelled alcohol or drugs on
[Licensee]. . . .
In a bench trial, the trial court is acting in two distinct capacities: first,
as the gate keeper, ruling on the admissibility of evidence, and second,
as the fact-finder, affording weight to the admissible evidence.
Com[monwealth] v. Safka, . . . 141 A.3d 1239 ([Pa.] 2016). In the
instant matter this court found that the evidence showed that there was
4
probable cause for the [o]fficer to make an arrest of [Licensee] for
driving under the influence. . . .
(1925(a) Opinion at 3.)
II. CONTENTIONS
On appeal,6 Licensee argues there were no reasonable grounds to believe that
Licensee was operating or in actual physical control of a motor vehicle while driving
under the influence. (Licensee’s Brief at 6-7.) Licensee argues Officer Ocasio
“didn’t witness [Licensee] driving a vehicle; [] didn’t perform any standardized field
sobriety tests on [Licensee]; didn’t smell any alcohol or drugs on [Licensee]; never
established ownership of the vehicle to [Licensee], [and] did not find keys to the
automobile on [Licensee].” (Id. at 3.) Thus, according to Licensee, it was not
reasonable to arrest Licensee or request that he submit to chemical testing. (Id. at 6-
7.)
After Licensee’s brief was filed, the parties filed a Joint Stipulation and
Motion on January 18, 2023. Therein, the parties stated that upon review of the
hearing transcript, “Officer [] Ocasio[] did not have reasonable grounds to believe
that [Licensee] was operating a vehicle while in violation of 75 Pa.C.S. § 3802.” (Jt.
Stip. & Motion ¶ 8.) The parties further averred that, as a result, the trial court should
have sustained Licensee’s appeal because the Bureau failed to satisfy its prima facie
burden of proof. (Id. ¶ 9.) Accordingly, the parties requested the Order be vacated
and the matter remanded to common pleas with directions to enter a new order
sustaining the appeal filed by Licensee. (Id. ¶ 10.)
6
This Court’s standard of review is “limited to determining whether common pleas
committed an error of law, whether common pleas abused its discretion, or whether the findings
of fact are supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver
Licensing, 176 A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).
5
On February 3, 2023, this Court issued an order directing that the Joint
Stipulation and Motion be listed with the merits of the appeal. The order also
directed the Bureau, in light of the Joint Stipulation and Motion, to either file a brief
or notify the Court if it did not intend to participate. The same day, the Bureau filed
a letter indicating it was not filing a brief in response to Licensee’s brief.
III. DISCUSSION
To satisfy its prima facie burden of proof to suspend the operating privilege
of a licensee under Section 1547 for a refusal to submit to chemical testing, the
Bureau
must establish 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 or was in actual physical control of the
movement of the vehicle while under the influence of alcohol; (2) was
asked to submit to a chemical test; (3) refused to do so; [] and (4) was
warned that refusal might result in a license suspension.
Vora v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 748 (Pa.
Cmwlth. 2013) (citation and footnote omitted). Only the first element is at issue in
the current case. “Whether reasonable grounds exist is a question of law reviewable
by this Court on a case-by-case basis.” Sisinni v. Dep’t of Transp., Bureau of Driver
Licensing, 31 A.3d 1254, 1257 (Pa. Cmwlth. 2011). A police officer has reasonable
grounds for believing a licensee was operating or in actual physical control of a
vehicle under the influence of alcohol if a reasonable person in the police officer’s
position could have concluded the same based on the facts and circumstances of the
situation as they appeared at the time. Kachurak v. Dep’t of Transp., Bureau of
Driver Licensing, 913 A.2d 982, 985 (Pa. Cmwlth. 2006). “[T]he court must
consider the totality of the circumstances, including the location of the vehicle,
6
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.” Banner v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203,
1207 (Pa. 1999).
After a review of relevant caselaw, we conclude that common pleas
committed an error of law when it determined Officer Ocasio had reasonable
grounds to believe that Licensee was operating or in actual physical control of the
vehicle while intoxicated. Officer Ocasio’s testimony at the hearing does not
establish that Licensee was driving or in actual physical control of the vehicle at the
time of the accident. In fact, Officer Ocasio’s testimony does not even establish
ownership of the vehicle to Licensee or demonstrate Licensee’s location in relation
to the vehicle at the time he responded. (R.R at 18.) Nor does it establish in any
way the location of the vehicle, whether its engine was running, or whether Licensee
was driving the vehicle at some point prior to police responding, which are the
factors set forth in Banner. 737 A.2d at 1207. Furthermore, Officer Ocasio’s
testimony at the hearing does not definitively establish that he recalled smelling
alcohol or drugs on Licensee at the time. (R.R. at 18.)
Cases which find officers had reasonable grounds to conclude a licensee drove
while under the influence generally involve licensees who were observed driving or
were found inside of their vehicles with other indicators that they had been driving.
See, e.g., Helt v. Dep’t of Transp., Bureau of Driver Licensing, 856 A.2d 263, 266
(Pa. Cmwlth. 2004) (finding that even though the officer did not observe the licensee
in the vehicle or driving, the officer had reasonable grounds to believe that the
licensee had driven the vehicle based on other individuals at the scene of the accident
identifying the licensee as the driver of the vehicle); Kachurak, 913 A.2d at 986
7
(finding the officer had reasonable grounds when the licensee was pulled over while
driving, the officer smelled alcohol in the vehicle, the licensee’s speech was slurred,
the licensee’s eyes were bloodshot and glassy, and the licensee staggered after
exiting the vehicle); Vinansky v. Dep’t of Transp., Bureau of Driver Licensing, 665
A.2d 860, 862 (Pa. Cmwlth. 1995) (holding that the officer had reasonable grounds
when the licensee was found slumped over the steering wheel with the engine
running and brake lights on).
In Banner, the licensee was found asleep in the passenger seat of a vehicle
with the lights and engine turned off, although the keys were in the ignition. After
the officer who responded knocked on the window of the vehicle, the licensee woke
up and reached for the keys. There was no alcohol found in the vehicle. The licensee
failed a field sobriety test, was arrested for driving under the influence, and refused
chemical testing, resulting in the suspension of his operating privileges. 737 A.2d
at 1204-05. The licensee appealed and common pleas, following a hearing,
dismissed the appeal. This Court affirmed. On appeal, the Supreme Court reversed,
concluding that there was “too tenuous of a connection to afford the officer
reasonable grounds to have believed that [the licensee] was in actual physical
control of the movement of the vehicle while intoxicated.” Id. at 1208 (emphasis in
original). Instead, the Supreme Court held “there must be some objective evidence
that the motorist exercised control over the movement of the vehicle at the time he
was intoxicated.” Id. at 1207. In the present case, Licensee was not found inside of
the vehicle or linked to the vehicle in any capacity to suggest he was operating or in
actual physical control of the vehicle. (R.R. at 18.)
While a police officer does not have to directly observe a licensee driving to
have reasonable grounds to conclude the licensee had actual physical control over
8
the movement of the vehicle, there must still be objective evidence to support the
officer’s conclusion. Banner, 737 A.2d at 1207. That objective evidence is lacking
here.
This case is more akin to Sestric v. Department of Transportation, Bureau of
Driver Licensing, 29 A.3d 141 (Pa. Cmwlth. 2011). There, a state trooper was
investigating an alleged assault when the alleged victim directed the trooper to the
licensee’s address, informing him that the licensee “had been drinking and drove
away.” Id. at 142. Upon arrival at the licensee’s address, the trooper smelled alcohol
on the licensee. After the alleged victim identified the licensee as his assailant, the
trooper placed the licensee under arrest and asked him to submit to a breath test,
which the licensee refused. After being driven to the police barracks and read the
DL-26 form, the licensee refused to submit to chemical testing and his operating
privilege was suspended as a result. Id. at 142-43. The trial court granted the
licensee’s appeal, finding, in part, that “[t]here was no testimony whatsoever about
when [the l]icensee[] may have been driving,” id. at 143 (quoting trial court opinion),
and on appeal, we affirmed. The Court found that the trooper did not have
reasonable grounds to believe the licensee was in actual physical control of the
vehicle while under the influence when the record contained no credible evidence to
establish, among other things, that the licensee was driving. Id. at 144. The record
here is similarly devoid of any such evidence of actual physical control of the vehicle
while driving under the influence.
In light of the foregoing analysis, we agree with the parties that Officer Ocasio
did not have reasonable grounds to conclude that Licensee had been operating or had
been in actual physical control of the vehicle while under the influence of alcohol or
9
a controlled substance, and as a result, common pleas committed an error of law in
determining otherwise.
Because we agree with the parties that common pleas should have sustained
Licensee’s appeal, we reverse common pleas’ Order.7
__________________________________________
RENÉE COHN JUBELIRER, President Judge
7
In light of our disposition, the parties’ Motion asking the Court to vacate and remand this
matter for common pleas to sustain Licensee’s appeal is dismissed as moot.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremiah Rodriguez, :
Appellant :
:
v. : No. 965 C.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
NOW, August 16, 2023, the Order of the Court of Common Pleas of
Philadelphia County, entered in the above-captioned matter, is REVERSED. The
Joint Stipulation and Motion filed by the parties is DISMISSED AS MOOT.
__________________________________________
RENÉE COHN JUBELIRER, President Judge