Commonwealth v. Hlubin , 2017 Pa. Super. 157 ( 2017 )


Menu:
  • J-E01005-17
    
    2017 Pa. Super. 157
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MOLLY HLUBIN
    Appellant                 No. 951 WDA 2015
    Appeal from the Judgment of Sentence May 21, 2015
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0003205-2014
    BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J.,
    LAZARUS, J., OLSON, J., DUBOW, J., MOULTON, J., and
    SOLANO, J.
    OPINION BY LAZARUS, J.:                                 FILED MAY 23, 2017
    Molly Hlubin appeals from the judgment of sentence, entered in the
    Court of Common Pleas of Allegheny County, following her conviction of two
    counts of driving under the influence (DUI).1 After careful review, we affirm.
    The trial court aptly set forth the facts2 of the underlying case as
    follows:
    ____________________________________________
    1
    75 Pa.C.S. § 3802(a)(1) (general impairment); 75 Pa.C.S § 3802(b) (high
    rate of alcohol; having BAC of 0.10% to less than 0.16%).
    2
    The parties stipulated that the following exhibits were included as part of
    the certified record for purposes of reargument:
       Exhibit 1 – West Hills DUI Task Force Policy and Procedural Guidelines
       Exhibit 2 – an unsigned sobriety checkpoint authorization form
    (Footnote Continued Next Page)
    J-E01005-17
    [O]n September 29, 2013, police officers from the West Hills DUI
    Task Force [(“Task Force”)] conducted a sobriety checkpoint on
    Steubenville Pike in Robinson Township, Pennsylvania. The Task
    Force is comprised of municipal police officers from fifteen (15)
    jurisdictions in the western portion of Allegheny County,
    Pennsylvania, including Robinson Township and Moon Township.
    After the conclusion of the Suppression Hearing, the
    Commonwealth filed a Motion to Reopen the Record and Admit
    New Evidence [it] could introduce, as Exhibit 4, Robinson
    Township's Resolution 14-2003 that authorized [its] participation
    in the [Task Force]. This [c]ourt granted that request on May
    21, 2015.
    At the Suppression Hearing, the Commonwealth presented
    testimony of Sergeant Douglas Ogden, who is a Patrol Sergeant
    with the Moon Township Police Department. Sergeant Ogden
    has been with the Moon Township Police Department since 1996
    and has been in law enforcement since 1989. Sergeant Ogden is
    the Program Coordinator and Project Manager for the [Task
    Force]. In addition to administrative tasks such as applying for
    grants and managing statistics, Sergeant Ogden organizes the
    checkpoints and road patrols and conducts training for the
    officers involved in checkpoints and DUI enforcement and
    detection. Sergeant Ogden testified that his statistical analysis
    showed that most of the DUI arrests and crashes in Robinson
    Township occurred at Steubenville Pike. The [Task Force] has
    policies in place to identify target locations for DUI checkpoints,
    which [were] admitted into evidence as Commonwealth's Exhibit
    1. The [Task Force] Policy and Procedural Guidelines require
    that the grant coordinator, or his designee, be present at all DUI
    checkpoints.
    Sergeant Ogden testified that he requested a DUI checkpoint
    from September 28, 2013 at 11[:00] p.m. through September
    29, 2013 at 4:00 a.m. to coordinate with the ending time of a
    _______________________
    (Footnote Continued)
       Exhibit 3 – a signed sobriety checkpoint authorization form
       Exhibit 4 – a Robinson Township Resolution
       Exhibit 5 – The blood test results from the county of Allegheny Office
    of the Medical Examiner.
    Agreed Stipulation to Supplement the Appellate Record, 1/6/17, at 3.
    -2-
    J-E01005-17
    concert at the Star Amphitheater because historically Robinson
    Township has difficulty with drunk drivers following concerts at
    that venue. On September 23, 2013, Robinson Township Police
    authorized this DUI checkpoint. Thereafter, Sergeant Ogden sent
    out the required press releases and the request for manpower.
    At the time the checkpoint begins, Sergeant Ogden and the
    officer in charge assign officers from each municipality specific
    tasks with the officers from the home agency who are qualified
    to administer DUI Field Sobriety Tests being assigned to the
    testing area. Generally, Sergeant Ogden, as grant coordinator, is
    in the area of the DUI trailer and testing area assisting officers
    there, however, he also can fill in where needed when manpower
    is depleted.
    Sergeant Ogden was present at the September 28, 2013 DUI
    checkpoint on Steubenville Pike in Robinson Township. At 12:25
    a.m., he was filling in on the road because the line had become
    depleted of manpower. At this time, he came into contact with
    [Hlubin], who was the driver of a vehicle. After introducing
    himself, Sergeant Ogden asked for her driver's license,
    registration, and proof of insurance. [Hlubin] initially handed him
    her Target credit card. While [Hlubin] was obtaining her
    documentation, Sergeant Ogden noticed an odor [of] alcoholic
    beverages coming from the vehicle and that [Hlubin] had slurred
    speech. In addition, [Hlubin] admitted that she had a shot and a
    beer. Sergeant Ogden then escorted her to the testing area,
    explained the testing procedure, and handed her over to Officer
    Sicilia of the Robinson Township Police Department. Thereafter,
    Sergeant Ogden had no direct contact with [Hlubin].
    Officer Dominic Sicilia, a police officer with Robinson Township,
    testified that he was working the testing area in the DUI
    checkpoint on Steubenville Pike in Robinson Township on
    September 28-29, 2013. He further testified that he came into
    contact with [Hlubin] while he was working the checkpoint. He
    testified that he explained that she was going to be asked to
    perform three field sobriety tests: the HGN[3] test, the walk-
    ____________________________________________
    3
    This test is known as the Horizontal Gaze and Nystagmus (HGN) test.
    Nystagmus is the rhythmic oscillation of the eyeballs in either a horizontal,
    vertical, or rotary direction. See Commonwealth v. Miller, 
    532 A.2d 1186
    , 1188 (Pa. Super. 1987). Officers use this test to ascertain the
    (Footnote Continued Next Page)
    -3-
    J-E01005-17
    and-turn test, and the one-legged stand test. [Hlubin] was given
    instructions on how to perform each test prior to administration
    of the test, and understood the directions. With regard to the
    HGN test, Officer Sicilia was looking for six (6) clues, and
    observed all six (6) clues. Further, [Hlubin] exhibited two (2) out
    of eight (8) clues for the walk-and-turn test. [Hlubin] exhibited
    one (1) out of four (4) clues for the one-legged stand test. Based
    upon his experience with intoxicated persons, his training as a
    police officer, the information provided by Sergeant Ogden, and
    his interaction with [Hlubin], Officer Sicilia formed an opinion
    that [Hlubin] was incapable of safely operating a motor vehicle.
    Thereafter, [Hlubin] consented to a blood draw, and was found
    to have a blood alcohol content of .152%.
    Trial Court Opinion, 1/5/16, at 2-5 (internal citations omitted).
    Hlubin was charged with the aforementioned two counts of DUI. On
    March 9, 2015, Hlubin filed a pre-trial motion to suppress, alleging that the
    sobriety checkpoint was unconstitutional and that everything that flowed
    from the illegal stop should be suppressed.4      The court denied the motion
    and the matter proceeded to a bench trial before the Honorable Thomas E.
    Flaherty. At trial, Hlubin and the Commonwealth stipulated to the admission
    of the testimony of Officer Sicilia and Sergeant Ogden from the suppression
    hearing, as well as the results of Hlubin’s blood test.     Following trial, the
    court convicted Hlubin on both DUI counts and sentenced her to thirty days
    _______________________
    (Footnote Continued)
    horizontal gaze nystagmus of a motor vehicle driver suspected of driving
    under the influence of alcohol. 
    Id. 4 In
    her suppression motion, Hlubin also claimed that the implied consent
    law was violated when her blood was not drawn at an approved facility,
    probable cause did not exist to arrest her for suspected DUI, and Sergeant
    Ogden did not have the authority to detain and arrest her outside of his
    jurisdiction.
    -4-
    J-E01005-17
    of Restrictive Intermediate Punishment, six months of non-reporting
    probation, and fines.
    Hlubin filed a timely notice of appeal and court-ordered Pa.R.A.P.
    1925(b) concise statement of matters complained of on appeal. A panel of
    this   Court    affirmed   the   trial   court’s    judgment   of   sentence.   See
    Commonwealth v. Hlubin, 951 WDA 2015 (Pa. Super. filed Oct. 6, 2016)
    (unpublished memorandum decision).                 However, that decision was later
    withdrawn after our Court granted reargument on December 15, 2016. The
    parties filed new briefs. On reargument, Hlubin presents the following issues
    for our consideration:
    (1)     Did the trial court err when it ruled that the checkpoint,
    which led to [Hlubin’s] stop, detention, and arrest, was
    lawful even though the Commonwealth failed to show
    compliance with the Intergovernmental Cooperation Act
    [(“ICA”)]?
    (2)     Did the trial court err when it held that Section 8953(a)(3)
    [of the Municipal Police Jurisdiction Act [(“MPJA”)]] permits
    officers to leave their primary jurisdiction for the purpose
    of participating in a sobriety checkpoint?
    (3)     Whether or not Officer Sicilia had sufficient probable cause
    to arrest [Hlubin] for the offense of DUI and to request a
    chemical test?
    A. Validity of Sobriety Checkpoint and the ICA
    Pursuant to the ICA:
    (a) General rule. — Two or more local governments in this
    Commonwealth may jointly cooperate, or any local government
    may jointly cooperate with any similar entities located in any
    other state, in the exercise or in the performance of their
    respective governmental functions, powers or responsibilities.
    -5-
    J-E01005-17
    (b)   Joint agreements. — For the purpose of carrying the
    provisions of this subchapter into effect, the local governments
    or other entities so cooperating shall enter into any joint
    agreements as may be deemed appropriate for those purposes.
    53 Pa.C.S. § 2303 (emphasis added). Under section 2305 of the ICA, a local
    government may enter into any intergovernmental cooperation with another
    local government upon the passage of an ordinance of its governing body.
    
    Id. at §
    2305. In such cases, ordinances shall contain seven specific criteria
    outlined in section 2307 of the ICA.5
    The Commonwealth concedes, and we agree, that the DUI checkpoint
    in the instant case did not comply with the ICA where the 15 municipalities
    ____________________________________________
    5
    The seven criteria are:
    (1) The conditions of agreement in the case of cooperation with
    or delegation to other local governments, the Commonwealth,
    other states or the Federal Government.
    (2) The duration of the term of the agreement.
    (3) The purpose and objectives of the agreement, including the
    powers and scope of authority delegated in the agreement.
    (4) The manner and extent of financing the agreement.
    (5) The organizational structure necessary to implement the
    agreement.
    (6) The manner in which real or personal property shall be
    acquired, managed, licensed or disposed of.
    (7)  That the entity created under this section shall be
    empowered to enter into contracts for policies of group insurance
    and employee benefits, including Social Security, for its
    employees.
    53 Pa.C.S. § 2307.
    -6-
    J-E01005-17
    comprising the Task Force did not jointly cooperate by each adopting an
    ordinance in compliance with sections 2303 and 2305. See 53 Pa.C.S. §
    2315 (joint cooperation agreement deemed in force when it has been
    adopted by ordinance by cooperating local governments).                 While Robinson
    Township had proposed a resolution to participate with the Task Force, that
    resolution    was    not   ratified   and      adopted   by   the   other   Task   Force
    municipalities nor does it contain the required criteria of an ordinance under
    section 2307. See supra note 6. However, this does not end our inquiry
    with regard to whether the checkpoint was otherwise valid.
    B. Constitutionality/Legality of Sobriety Checkpoint and the MPJA 6
    Hlubin claims that because the ICA codifies the process that local
    governmental units must follow when cooperating with each other “it
    controls the outcome of this case as well as the legality of all sobriety
    checkpoints (and all government matters) when the officers from outside the
    primary jurisdiction are utilized.”         Appellant’s Brief, at 31.   Moreover, she
    contends that “[o]nce it is shown that the Commonwealth failed to comply
    with the ICA, the trial court’s decision that the checkpoint at issue was
    legally constituted must be reversed [or] Article IX, § 5 of the Pennsylvania
    Constitution and the ICA are rendered meaningless.” 
    Id. We disagree.
    ____________________________________________
    6
    42 Pa.C.S. §§ 8951-8954.
    -7-
    J-E01005-17
    As the Commonwealth notes, while the relevant sections of the local
    government code apply to “all local governments,”7 53 Pa.C.S. § 2301, the
    MPJA only applies to any “duly employed municipal police officer who is
    within this Commonwealth, but beyond the territorial limits of his primary
    jurisdiction.”   42 Pa.C.S. § 8953(a).         Specifically, the MPJA enumerates a
    discrete set of circumstances under which a municipal police officer may
    exercise extra-territorial authority. See generally 42 Pa.C.S. § 8953(a)(1)-
    (6). Accordingly, we do not agree with Hlubin’s claim that Article IX, § 5 of
    the Pennsylvania Constitution and the ICA will be “rendered meaningless and
    municipal boundaries will be obliterated” by applying the MPJA in such
    limited circumstances as the present case.             These two statutes can be
    applied concurrently; they are not mutually exclusive as they address
    different circumstances that may arise within local municipalities.         See 1
    Pa.C.S. § 1933 (whenever general provision in statute shall conflict with
    ____________________________________________
    7
    Under the ICA, “local government” is defined as:
    A county, city of the second class, second class A and third class,
    borough, incorporated town, township, school district or any
    other similar general purpose unit of government created by the
    General Assembly after July 12, 1972.
    53 Pa.C.S. § 2302.
    -8-
    J-E01005-17
    special provision in same or another statute, two shall be construed, if
    possible, so that effect may be given to both).8
    Hlubin also contends she was not lawfully arrested because the
    sobriety checkpoint was not authorized under the MPJA. Specifically, Hlubin
    asserts that the MPJA relates only to situations where a request for
    assistance is contemporaneous with the commission of a crime and that
    probable cause to believe a crime is being or has been committed is the
    fundamental purpose of the MPJA.
    Section 8953(a) of the MPJA delineates six specific situations wherein
    an officer can go outside of his or her primary jurisdiction to make arrests,
    serve warrants and perform other official functions.          See 42 Pa.C.S. §
    8953(a)(1)-(6). Pursuant to section 8953(a) of the MPJA:
    (a)    General rule. — Any duly employed municipal police officer
    who is within this Commonwealth, but 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:
    *       *   *
    (3) Where the officer has been requested to aid or assist
    any local, State or Federal law enforcement officer or park
    ____________________________________________
    8
    Moreover, the extent that Hlubin raises concerns with regard to
    expenditures, allocation of personnel, decisions regarding participation in
    programs and liability issues if the MPJA were applied in circumstances like
    the present, those matters are not before the court today.
    -9-
    J-E01005-17
    police officer or otherwise has probable cause to believe
    that the other officer is in need of aid or assistance.
    (4) Where the officer has obtained the prior consent of the
    chief law enforcement officer, or a person authorized by
    him to give consent, of the organized law enforcement
    agency which provides primary police services to a political
    subdivision which is beyond that officer’s primary
    jurisdiction to enter the other jurisdiction for the purpose
    of conducting official duties which arise from official
    matters within his primary jurisdiction.9
    42 Pa.C.S. § 8953(a)(3), (4). The MPJA is not among those statutes which
    must be strictly construed and, instead, is subject to liberal construction to
    effectuate its objects and to promote justice. Commonwealth v. Peters,
    
    915 A.3d 1213
    (Pa. Super. 2007).
    One of the principal purposes of the MPJA is to promote public safety
    while    placing   a   general    limitation   on   extra-territorial   police   patrols.
    Commonwealth v. Merchant, 
    595 A.2d 1135
    , 1138 (Pa. 1991). In fact,
    one of the main objectives of the MPJA is to “promote a cohesive working
    relationship among municipal police departments.” Commonwealth v.
    ____________________________________________
    9
    Although we ultimately conclude that Sergeant Ogden had the authority to
    stop Hlubin under section 8953(a)(3) of the MPJA, we also recognize that he
    may have been authorized to conduct the stop under section 8953(a)(4)
    where he had been given the consent of Robinson Township Police Chief
    Vietmeier to conduct official duties in Allegheny County as a member of the
    Task Force executing a joint DUI checkpoint. We also acknowledge the
    relevancy of section 8953(e) of the MPJA which preserves existing and future
    municipal police service agreements. See 42 Pa.C.S. § 8953(e) (“Nothing in
    this section shall be construed to restrict the authority of any municipality to
    maintain current or to enter into new cooperative police service agreements
    with another municipality or municipalities for purposes including, but not
    limited to, describing conditions of mutual aid, assigning liability and
    determining appropriate costs of these cooperative efforts.”).
    - 10 -
    J-E01005-17
    Ebersole, 
    492 A.2d 436
    , 439 (Pa. Super. 1985). See Commonwealth v.
    Sestina, 
    546 A.2d 109
    (Pa. Super. 1988) (the MPJA “not only encourages
    cooperative relationships among municipalities, but also between local
    municipalities and the state police;” statute addresses administrative, intra-
    departmental practice for state police).
    Instantly, the trial court found that the roadblock, operated as part of
    the Task Force, was a valid exercise of authority under section 8953(a)(3) of
    the MPJA.    Program coordinator and project manager for the Task Force,
    Sergeant Douglas Ogden, testified that the Task Force was comprised of 15
    police departments that “bonded together to do DUI enforcement.”         N.T.
    Suppression Hearing, 3/13/15, at 9. Each year Sergeant Ogden applies for a
    grant and gathers statistics to support the administration of the grant; the
    statistics compiled DUI-related crashes, fatalities, and a list of the most
    common local roadways where DUI crashes occur.         
    Id. at 10.
      Sergeant
    Ogden runs checkpoints, road patrols, and training for the officers involved
    in the checkpoints, as well as for those officers who are responsible for DUI
    enforcement and detection. 
    Id. Sergeant Ogden
    also testified that he has
    two co-coordinators that assist him on the scene at an active checkpoint.
    
    Id. at 11.
       Finally, Sergeant Ogden testified that Steubenville Pike in
    Robinson Township, where the instant checkpoint was located, is identified
    as a DUI problem location as was reported to him by Robinson Township
    Sergeant Joel Hamilton. 
    Id. at 11-12.
    - 11 -
    J-E01005-17
    Sergeant Ogden testified that there were established program policies
    and procedural guidelines10 associated with the Task Force that were sent to
    every member department.           
    Id. at 14,
    20 (“Every one of the members of
    my task force has a copy of it that I have sent and they have it at their
    disposal.”). In this particular case, the sobriety checkpoint was headed by
    Sergeant Hamilton; more than 25 officers were authorized to man the
    checkpoint. 
    Id. at 15.
    Sergeant Ogden sent Sergeant Hamilton a sobriety
    checkpoint authorization form, requesting that he have the Robinson
    Township police chief sign the form to authorize Ogden to be out in the road
    conducting the checkpoint. 
    Id. at 17.
    Robinson Township Police Chief Dale
    Vietmeier returned the signed form11 five days before the checkpoint took
    ____________________________________________
    10
    The procedural policy and guidelines for the Task Force include the
    following information:
       Purpose of Task Force;
       Definition of Sobriety Checkpoint;
       Policy of the Task Force;
       Checkpoint Procedures, including Site Selection, Personnel Selection
    and Deployment, Training, Checkpoint Duration, and Officer
    Responsibilities;
       Checkpoint Tactics and Guidelines;
       Scheduling & Administrative Concerns; and
       External Support
    West Hills Area DUI Task Force Sobriety Checkpoint Program:         Policy and
    Procedural Guidelines; Commonwealth Exhibit 1.
    11
    The form states:
    (Footnote Continued Next Page)
    - 12 -
    J-E01005-17
    place.     
    Id. at 18;
    Commonwealth’s Exhibit 3.     Information regarding the
    exact location, time, officer in charge and the logistics of the checkpoint is
    also included in the form. 
    Id. An email
    press release about the checkpoint
    was sent in advance to local television, radio, and print news outlets, as well
    as a designated mailing list. 
    Id. at 23.
    Based upon this testimony, we affirm the trial court’s conclusion that
    the instant checkpoint was valid under subsection 8953(a)(3) of the MPJA.
    There is no statutory language in the MPJA, specifically section 8953(a)(3),
    that would impose a “contemporaneous” requirement upon an officer’s
    request for aid or assistance. In fact, subsection 8953(a)(2), often termed
    the “hot pursuit” exception of the MPJA, specifically applies to those
    instances where an officer’s chase into a neighboring jurisdiction is
    “immediate, continuous, and uninterrupted.” Commonwealth v. McPeak,
    
    708 A.2d 1263
    , 1266 (Pa. Super. 1998). Moreover, “it is noteworthy that
    the predecessor [of the MPJA] made provision for police action outside [an
    officer’s] primary jurisdiction in only one circumstance, i.e., hot pursuit.”
    
    Merchant, 595 A.2d at 1138-39
    . “The inclusion of additional instances of
    authorization indicates that the General Assembly intended to expand the
    _______________________
    (Footnote Continued)
    I hereby authorize the operation of a sobriety checkpoint as
    outlined above and adhering to standard operating procedures
    that have been established.
    West Hills DUI Task Force Sobriety Checkpoint Authorization Form, 9/23/13.
    - 13 -
    J-E01005-17
    powers of local police to protect the public, where such expansion would not
    adversely affect the ultimate goal of maintaining police accountability to
    local authority.” 
    Id. at 1139.
    Thus, in light of the purpose and spirit of the
    MPJA, in conjunction with its liberal construction, we decline to read such a
    “contemporaneous” element into subsection (a)(3). 
    Peters, supra
    .
    Here, Robinson Township Police Chief Vietmeier and Officer-in-Charge
    Sergeant    Hamilton    authorized    Sergeant    Ogden,    as     Task   Force
    representative, to operate the sobriety checkpoint in his jurisdiction and to
    “adher[e] to the standard operating procedures that have been established.”
    West Hills Task Force Sobriety Checkpoint Authorization Form, 9/23/15.
    This arrangement represents Robinson Township’s request for “aid and
    assist[ance]” from Moon Township Sergeant Ogden in carrying out a sobriety
    checkpoint that served the legitimate purpose of reducing death, injury and
    property damage resulting from motor vehicle crashes due to intoxicated or
    chemically impaired drivers from the surrounding municipalities.
    Moreover, even if the sobriety checkpoint was not valid under the
    stricture of the MPJA, suppression is not warranted under the circumstances.
    In Commonwealth v. O’Shea, 
    567 A.2d 1023
    (Pa. 1989), the Pennsylvania
    Supreme Court approved of a case-by-case approach, applying the following
    factors to determine whether suppression is warranted where evidence is
    obtained in violation of the MPJA: intrusiveness of the police conduct; the
    extent of deviation from the letter and spirit of the Act; and the prejudice to
    the accused. 
    Id. at 1030;
    see Commonwealth v. Chernosky, 874 A.2d
    - 14 -
    J-E01005-17
    123 (Pa. Super. 2005) (en banc) (concluding that where officer’s action did
    not constitute type of behavior legislature sought to prohibit through
    enactment of MPJA, suppression not appropriate remedy; Court rejected
    absolutist approach of exclusionary rule in such cases).
    Here, the police were not intrusive in detaining motorists at the
    checkpoint. Sergeant Ogden testified that the stops generally lasted only 30
    to 45 seconds in length and involved officers first identifying themselves,
    asking for a driver’s identifying documents (license, registration and
    insurance), and posing limited follow-up questions.        N.T. Suppression
    Hearing, 3/13/15, at 26-27. The checkpoints furthered the purpose of the
    MPJA by “reduc[ing] the accidental death, injury and property-damage
    resulting from motor vehicle crashes involving intoxicated and chemically
    impaired operators . . . decreas[ing] the number of intoxicated and
    chemically impaired offenders on the highways of the member communities
    by conducting sobriety checkpoints.”         West Hills Area DUI Task Force
    Sobriety Checkpoint Program:       Policy and Procedural Guidelines, at 2.
    Finally, there was minimal to no prejudice suffered by drivers stopped at the
    checkpoints.   See Commonwealth v. Worthy, 
    957 A.2d 720
    , 724 (Pa.
    2008) (sobriety checkpoints do not offend Fourth Amendment because they
    are “a reasonable means of advancing a vital public interest, involving only a
    modest intrusion on the privacy and liberty of motorists”); see also
    Commonwealth v. Henry, 
    943 A.2d 967
    (Pa. Super. 2008) (where officer
    unintentionally failed to follow appropriate MPJA procedure after detaining
    - 15 -
    J-E01005-17
    defendant and defendant was not prejudiced, evidence should not have been
    suppressed).
    C. Probable Cause to Arrest for DUI
    In her final issue, Hlubin asserts that Officer Sicilia did not have
    probable cause to arrest her for DUI. We disagree.
    Probable cause for a DUI arrest is present when a police officer has
    sufficient facts at his disposal to warrant a prudent person to believe that
    the driver of a vehicle is under the influence of alcohol. Commonwealth v.
    Angel, 
    946 A.2d 115
    (Pa. Super. 2008). The probable cause determination
    is made based upon the totality of the circumstances and “a police officer
    may utilize both his experience and personal observations to render an
    opinion as to whether a person is intoxicated.” Commonwealth v.
    Williams, 
    941 A.2d 14
    , 27 (Pa. Super. 2008) (citation omitted).
    Here, Sergeant Ogden testified that when he stopped Hlubin at the
    checkpoint and asked her for her driver’s license and proof of registration
    and insurance, Hlubin’s reaction “was slow and fumbled and she . . . started
    handing me a Target credit card as opposed to a driver’s license.”     N.T.
    Suppression Hearing, 3/13/15, at 31.    Moreover, Sergeant Ogden testified
    that he noticed a strong odor of alcohol coming from Hlubin’s vehicle and
    that her speech was slurred.   
    Id. at 32.
      Ultimately, Hlubin told Sergeant
    Ogden that “she may have had a shot and a beer.” 
    Id. Officer Sicilia,
    who had training in field sobriety and had conducted
    approximately one hundred prior DUI investigations, performed three field
    - 16 -
    J-E01005-17
    sobriety tests on Hlubin at the checkpoint. 
    Id. at 60,
    62. While conducting
    the tests, Officer Sicilia noticed that Hlubin had bloodshot, glassy eyes and
    an odor of alcohol emanating from her. 
    Id. at 63.
    Officer Sicilia concluded
    that Hlubin was impaired after she exhibited all six clues during the HGN
    test. 
    Id. As a
    result of these findings, Officer Sicilia opined that Hlubin was
    incapable of driving a motor vehicle and placed her under arrest. 
    Id. at 66.
    Under a totality of the circumstances, we conclude that Officer Sicilia
    had probable cause to arrest Hlubin for suspected driving under the
    influence. 75 Pa.C.S. §§ 3802(a)(1), (b); Commonwealth v. Hilliar, 
    943 A.2d 984
    (Pa. Super. 2008) (holding probable cause existed to arrest driver
    for DUI where driver smelled of alcohol and his speech was slurred).12
    Judgment of sentence affirmed.
    ____________________________________________
    12
    Hlubin argues in her appellate brief that without reasonable grounds to
    believe that she was driving under the influence, the police were not
    permitted to administer a blood test under 75 Pa.C.S. § 1547(a)(1). See
    Commonwealth v. Thur, 
    906 A.2d 552
    (Pa. Super. 2006). We first note
    that Hlubin does not raise this issue in her Pa.R.A.P. 1925(b) concise
    statement. Thus, we could find the issue waived on appeal. See Pa.R.A.P.
    1925(b)(4)(vii). However, even if it were not waived, because there was
    probable cause to arrest Hlubin for DUI, this issue is meritless.
    - 17 -
    J-E01005-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/23/2017
    - 18 -
    

Document Info

Docket Number: Com. v. Hlubin, M. No. 951 WDA 2015

Citation Numbers: 165 A.3d 1, 2017 Pa. Super. 157, 2017 WL 2255549, 2017 Pa. Super. LEXIS 372

Judges: Bender, Bowes, Panella, Shogan, Lazarus, Olson, Dubow, Moulton, Solano

Filed Date: 5/23/2017

Precedential Status: Precedential

Modified Date: 10/26/2024