R. Carosello v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronda Carosello, :
Appellant :
:
v. : No. 938 C.D. 2022
: SUBMITTED: June 5, 2023
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: June 27, 2023
Licensee Ronda Carosello appeals from an order of the Court of
Common Pleas of Montgomery County dismissing her appeal from a one-year
suspension of her operating privilege imposed by the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(Department). The suspension was imposed pursuant to what is commonly known
as the Implied Consent Law, Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547,
because Licensee refused to submit to chemical testing when she was arrested for
driving under the influence of alcohol or a controlled substance (DUI). Upon review,
we affirm.
Background
On February 17, 2022, Pennsylvania State Police Trooper Kole
Rodrigues arrested Licensee for DUI. By official notice mailed April 21, 2022, the
Department informed Licensee that it was suspending her operating privilege for one
year pursuant to Section 1547(b)(1)(i) of the Vehicle Code for refusing a chemical
test. (Reproduced Record “R.R.” at 7a-10a.) Licensee timely appealed the
suspension, and the trial court held a de novo hearing. (R.R. at 1a, 3a-6a.)
Trooper Rodrigues testified that just after 12:00 a.m., he was on patrol
with Trooper Seth Heffner driving along U.S. Route 422 in Montgomery County
when he observed a red Toyota Corolla directly in front of him weave in and out of
the traffic lanes several times and cross the white fog line. Trooper Rodrigues
engaged his emergency lights and sirens and initiated a traffic stop of Licensee’s
vehicle. He then approached and made contact with Licensee, whom he observed
as “having glossy eyes and her eyes were very sensitive to [his] patrol unit’s lights
and [his] hand-held flashlight.” (R.R. at 23a.)
Given his observations of Licensee and her driving, Trooper Rodrigues
requested that she exit her vehicle and perform standardized field sobriety tests.
Licensee agreed and displayed multiple signs of impairment with each of the three
tests. More specifically, with the horizontal gaze nystagmus test, Licensee had
difficulty tracking the stimulus and could not focus due to light sensitivity; with the
walk-and-turn test, she was unable to maintain the starting position, used her arms
for balance, and missed the heel-to-toe on multiple steps; and with the one-leg stand
test, Licensee put her foot down, used her arms for balance, and used both feet.
Trooper Rodrigues ultimately stopped this last test short due to his concern for
Licensee’s safety.
Trooper Rodrigues then observed Trooper Heffner administer the
Advanced Roadside Impaired Driving Enforcement (ARIDE) testing to Licensee to
test for possible drug-based impairment. Specifically, he observed Trooper Heffner
2
administer the Modified Romberg test twice, wherein Trooper Heffner asked
Licensee to stand with her feet flat on the ground, tilt her head back, and estimate
when 30 seconds had transpired. Both times, Trooper Rodrigues observed Licensee
estimate that 30 seconds had elapsed in just 7 seconds. When Trooper Rodrigues
was questioned about what Trooper Heffner relayed to him regarding the outcome
of the ARIDE testing, Licensee lodged a hearsay objection. The trial court sustained
the objection given that Trooper Rodrigues was not trained to perform or interpret
the results of ARIDE testing and Trooper Heffner was not present to testify. (R.R.
at 31a-32a.)
Based on these circumstances, Trooper Rodrigues arrested Licensee for
DUI and placed her in the back of his patrol vehicle. Trooper Rodrigues read the
warnings on the Department’s DL-26B Form to Licensee verbatim and requested
that she submit to a chemical blood test, but she refused. While Trooper Rodrigues
could not remember the exact words used, he repeatedly testified that Licensee
refused, noting that she was very uncooperative in the patrol vehicle and “she may
have stated that she was not going to the hospital.” (R.R. at 34a; see also R.R. at
55a.)
On cross-examination, Trooper Rodrigues conceded that he did not
observe Licensee fumbling for her identification, and she did not exhibit slurred
speech or a staggered gait. (R.R. at 47a-48a, 53a.) He also stated that he did not
recall if he gave Licensee Miranda1 warnings. (R.R. at 55a.) Trooper Rodrigues
confirmed that Licensee refused the chemical test, stating she was not going to the
hospital, at which point he believed he related to her that they could “possibly get an
ambulance to the Skippack station as we have done in the past.” (R.R. at 57a.)
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Licensee did not testify or present any evidence on her own behalf.
Following post-hearing briefing, the trial court issued a memorandum opinion and
order denying Licensee’s appeal. Licensee then appealed to this Court.
Issues
Licensee raises the following three issues for this Court’s review:2
whether the trial court erred in determining that the Department sustained its burden
of proof for the suspension of Licensee’s operating privilege; whether the trial court
erred in accepting into evidence Licensee’s 35-year-old driving record because it is
prejudicial and irrelevant to the suspension; and whether the trial court erred by
admitting into evidence the hearsay conclusion of Trooper Heffner as to Licensee’s
ARIDE testing because Trooper Heffner was not called as a witness and his absence
was unexplained.3
2
We have reordered Licensee’s arguments for clarity and ease of discussion.
3
Licensee purports to raise a number of additional issues on appeal, including whether
Trooper Rodrigues failed to advise her that the Miranda warnings do not apply to a request for
chemical testing; whether the trial court erred by failing to consider and rule upon Licensee’s
request for an adverse inference given the Department’s failure to produce Trooper Heffner as a
witness; and whether the Department’s failure to produce video of the traffic stop violated
Licensee’s right to a fair trial. However, these issues are neither listed in the statement of questions
involved portion of Licensee’s brief, nor are they fairly suggested thereby. See Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”). Moreover, these issues are not set forth in separate parts of the
argument section of her brief and are not fully developed, with appropriate discussion and citation
to authorities or facts of record, to provide for meaningful appellate review. See Pa.R.A.P. 2119(a).
Several of these arguments consist of no more than a single sentence and lack merit as they are not
supported by the record. For example, Trooper Rodrigues testified that he did not recall if he gave
Licensee Miranda warnings, and Licensee herself did not testify so there is nothing in the record
to support this claim. (R.R. at 55a.) As the trial court summarized, “there was only an oblique
reference to the Miranda [w]arnings that may have been given by a[ Trooper], off to the side, and
not related, whatsoever, to the reading of the DL[-26B] Form and the immediate refusal by
[L]icensee.” (R.R. at 76a.) Given these significant deficiencies, we find that Licensee’s additional
issues have been waived. See Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (finding no
(Footnote continued on next page…)
4
Discussion
Licensee’s main arguments concern the requirements for sustaining a
civil suspension of a licensee’s operating privilege for failure to submit to chemical
testing and whether the Department has met its burden here. It is well established
that to sustain such a suspension under the Implied Consent Law, the Department
has the burden of proving
that the licensee (1) was arrested for [DUI] 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.
Regula v. Dep’t of Transp., Bureau of Driver Licensing, 146 A.3d 836, 842 (Pa.
Cmwlth. 2016) [quoting Zwibel v. Dep’t of Transp., Bureau of Driver Licensing, 832
A.2d 599, 604 (Pa. Cmwlth. 2003) (emphasis in original)].
First, we reject Licensee’s assertion that the Department must prove the
lawfulness of the underlying DUI arrest or that Trooper Rodrigues had probable
cause to effectuate the traffic stop. See Licensee’s Br. at 14. To the contrary, “[b]oth
the Supreme Court and this Court consistently have held that the 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[.]” Regula, 146 A.3d at 843 (emphasis in original). See also Banner
error in determination that issue was waived under Pa.R.A.P. 2119(a) for underdevelopment, and
further stating Pa.R.A.P. 2116(a) “is to be considered in the highest degree mandatory, admitting
of no exception; ordinarily no point will be considered which is not set forth in the statement of
questions involved or suggested thereby”) (citation omitted); Dep’t of Transp. v. McCafferty, 758
A.2d 1155, 1164 (Pa. 2000) (holding claim was waived because it was not included in statement
of questions involved and not developed as a separate argument).
5
v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999);
Kachurak v. Dep’t of Transp., Bureau of Driver Licensing, 913 A.2d 982, 986 (Pa.
Cmwlth. 2006) (“[t]he law is clear that the legality of the underlying DUI arrest is
of no moment” in a civil license suspension appeal and “[i]t is irrelevant whether
[the arresting officer] had probable cause for executing the traffic stop”). Licensee
has confused the legal concept of probable cause in criminal cases and reasonable
grounds in license suspension civil cases.
Licensee also argues that the Department did not meet its burden with
respect to the first prong, that of reasonable grounds. The test for whether a police
officer had reasonable grounds “is not very demanding,” and it is not necessary for
the police officer to be correct in his belief. Vinansky v. Dep’t of Transp., Bureau of
Driver Licensing, 665 A.2d 860, 862 (Pa. Cmwlth. 1995). While there is no bright
line test, our courts have concluded that reasonable grounds are established
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
h[er] car while under the influence[.] The issue of
reasonable grounds is decided on a case-by-case basis . . .
. Moreover, the existence of reasonable alternative
conclusions that may be made from the circumstances
does not necessarily render the officer’s belief
unreasonable.
Regula, 146 A.3d at 842-43 (citations and quotation omitted). Finally, “[a]n officer
may acquire reasonable grounds to believe that a licensee was driving under the
influence [] at any time during the course of [the] interaction[.]” Kachurak, 913
A.2d at 985.
Here, Trooper Rodrigues testified that he observed Licensee driving
erratically, with her vehicle weaving in and out of the traffic lanes several times and
6
crossing the white fog line. When he approached her vehicle, he observed
Licensee’s eyes to be glossy and very sensitive to light. Licensee also displayed
multiple signs of impairment with each of the three field sobriety tests Trooper
Rodrigues administered, to the point that he stopped the final test short due to
concerns for Licensee’s safety, and she was uncooperative while in his patrol
vehicle. The trial court found Trooper Rodrigues to be credible and Licensee herself
did not testify or dispute the Department’s evidence. See Factor v. Dep’t of Transp.,
Bureau of Driver Licensing, 199 A.3d 492, 497 (Pa. Cmwlth. 2018) (noting well-
settled principle “that the trial court’s credibility determinations in a license
suspension appeal will not be second-guessed on appeal”). Licensee argues that
reasonable grounds do not exist because there is no evidence that she had slurred
speech or was staggering, or that Trooper Rodrigues observed an odor of alcohol or
other controlled substance emitting from her or her vehicle. However, we have
repeatedly held that an officer does not lack reasonable grounds simply because he
did not observe every indicator of intoxication that this Court has outlined in prior
decisions. See Jessen v. Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth.,
No. 250 C.D. 2019, filed December 4, 2019), slip op. at 94 [quoting Farnack v. Dep’t
of Transp., Bureau of Driver Licensing, 29 A.3d 44, 48 (Pa. Cmwlth. 2011)]. The
trial court determined that reasonable grounds existed based on the totality of the
circumstances, and we discern no error in this regard.
Licensee also appears to argue that she did not refuse the chemical test.
“The question of whether a licensee refuses to submit to a chemical test is a legal
one, based on the facts found by the trial court.” Nardone v. Dep’t of Transp.,
4
Unreported panel decisions of this Court may be cited for their persuasive value pursuant to
Pa.R.A.P. 126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa.
Code § 69.414(a).
7
Bureau of Driver Licensing, 130 A.3d 738, 748 (Pa. 2015). Our “courts have long
and consistently held that anything less than an unqualified, unequivocal assent to
submit to chemical testing constitutes a refusal[.]” Factor, 199 A.3d at 497. In
addition, we must view the evidence in the light most favorable to the Department
as the party that prevailed before the trial court. Bradish v. Dep’t of Transp., Bureau
of Driver Licensing, 41 A.3d 944, 945 n.3 (Pa. Cmwlth. 2012).
Here, Licensee failed to give an unqualified, unequivocal assent to
chemical testing. While Trooper Rodrigues could not recall the exact response
Licensee provided, he repeatedly testified that Licensee refused to submit to the
chemical test and that she was uncooperative. See Factor, 199 A.3d at 497-98(finding no abuse of discretion in trial court’s determination that the licensee refused
to consent where officer could not recall the exact words used but testified repeatedly
that it was a refusal); Fleet v. Dep’t of Transp., Bureau of Driver Licensing (Pa.
Cmwlth., No. 1025 C.D. 2021, filed November 7, 2022). Throughout her brief,
Licensee claims that she told Trooper Rodrigues she did not want to go to a hospital
for testing because of the COVID risks and because she is the caregiver for her
elderly father. See Licensee’s Br. at 6, 16. However, Licensee did not testify or
present any other evidence before the trial court, and these claims are not
substantiated by the credible testimony of Trooper Rodrigues.
Licensee’s remaining arguments lack merit as they simply are not
supported by the record. Contrary to Licensee’s claim, the trial court sustained her
objection to the admission of her driving record as part of the Department’s certified
record. The transcript from the trial court hearing indicates that only a portion of the
Department’s certified record was admitted into evidence – that being the cover
sheet, notice of suspension, and DL-26B Form – while Licensee’s actual driving
8
record was explicitly precluded. (See R.R. at 41a-44a, 61a.)5 As such, Licensee’s
driving record was not transmitted to this Court as part of the record and was not
considered by the trial court when rendering its decision.
Similarly, the trial court sustained Licensee’s objection to what Trooper
Heffner told Trooper Rodrigues regarding the results of her ARIDE testing. The
trial court allowed Trooper Rodrigues to testify as to his own observations since he
witnessed Licensee perform the test twice. (See R.R. at 28a-32a.) However, the
following colloquy is instructive:
THE COURT: And your objection is to when he
said about, I think he said that she might be, she may be
under impairment, [sic] and you’re objecting to that?
[LICENSEE’S COUNSEL]: I am objecting to that.
I am objecting to the word “may.” I’m objecting.
THE COURT: I think I’m going to sustain that,
because you’re not trained to draw any conclusions; am I
correct?
[TROOPER RODRIGUES]: Yes, Your Honor.
....
THE COURT: And you have some general
understanding, or he told you some general understanding
of the test, but you’re not qualified for the test; right?
[TROOPER RODRIGUES]: Correct, Your Honor.
[DEPARTMENT’S COUNSEL]: Your Honor,
he’s indicating what was told to him.
5
The trial court explained that the Department’s certified record “[wa]s admitted, except for
the last several pages.” (R.R. at 61a) (emphasis added). Moreover, both the trial court and counsel
for the Department noted that Licensee’s driving record was “not going to be used against
[Licensee].” (R.R. at 43a.)
9
THE COURT: But you’re going to have a hard
time. Let’s say it was seven seconds, but you don’t have
an officer to say the relevancy of that seven seconds.
So I’ll allow him saying that, but it’s not going to
matter. Next.
[LICENSEE’S COUNSEL]: Again, Your Honor --
THE COURT: I’m sustaining your objection to the,
to anything that he might have said about that she “may be
under,” that’s totally -- “she may be under the influence of
drugs.”
That’s not -- I hold no relevancy to that, so I sustain
that objection.
Next question.
(R.R. at 31a-32a) (emphasis added). Given these evidentiary rulings, Licensee’s
remaining arguments fail.
Conclusion
Based on all of the above, the Department met each element of its
burden and the trial court appropriately denied Licensee’s appeal. Accordingly, we
affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronda Carosello, :
Appellant :
:
v. : No. 938 C.D. 2022
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 27th day of June, 2023, the order of the Court of
Common Pleas of Montgomery County in the above-captioned matter is hereby
AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita