K.W. Jones v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kalan W. Jones :
:
v. : No. 837 C.D. 2020
: Submitted: July 9, 2021
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: October 19, 2021
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common
Pleas of Allegheny County (trial court) that sustained the appeal of Kalan W. Jones
(Licensee) from PennDOT’s one-year suspension of his operating privilege imposed
under Section 1547(b)(1)(i) of the Vehicle Code, commonly referred to as the
Implied Consent Law.1 We reverse.
1
Section 1547(b)(1)(i) provides, in pertinent part:
(1) If any person placed under arrest for a violation of section 3802 [(relating to
driving under the influence of alcohol or a 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 department shall suspend the operating
privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
75 Pa. C.S. §1547(b)(1)(i).
On June 24, 2018, University of Pittsburgh Police Officer Donald
Chichilla watched a vehicle driven by Licensee cross over the center lines of the
roadway several times and run a red light. Officer Chichilla initiated a traffic stop.
After Licensee failed to park his vehicle in a parking lane, Officer Chichilla asked
Licensee to stop the ignition and exit the vehicle.
Officer Chichilla smelled alcohol and burnt marijuana emanating from
Licensee, and observed that Licensee’s eyes were glassy. Licensee stated that he
had consumed alcohol but not smoked marijuana. Officer Chichilla administered
three field sobriety tests, which Licensee failed. Officer Chichilla arrested Licensee
for driving under the influence (DUI) of alcohol or a controlled substance and
transported him to the University of Pittsburgh police station for a breathalyzer test.
Licensee was placed in a holding cell for 30 minutes. As Officer Chichilla escorted
Licensee to the breathalyzer test, a baggie of marijuana fell from Licensee’s pants
onto the floor of the holding cell.
Licensee passed the breathalyzer test. Officer Chichilla then requested
Sergeant Charles Welsh to administer a blood test. Sergeant Welsh questioned
Licensee, who again denied that he had smoked illegal substances that day. Sergeant
Welsh then read to Licensee the Department Form DL-26B and requested him to
submit to chemical testing. Licensee refused.
PennDOT subsequently suspended Licensee’s operating privilege for
one year for refusing a police officer’s request to submit to chemical testing pursuant
to 75 Pa. C.S. §1547(b)(1)(i). Licensee appealed.
On July 23, 2020, the trial court held a de novo hearing, at which Officer
Chichilla testified to the facts described above. When asked why he believed that
2
Licensee was impaired despite his successful completion of the breathalyzer test,
Officer Chichilla testified:
[Counsel]: And what happened … after he completed the breath
test on the breath testing instrument?
[Officer Chichilla]: Well, for me personally it wasn’t matching
up. [The] indicators from him, the initial stop from the
intersection of him almost hitting someone [by going] through
the red light to my initial interaction, the field sobriety tests,
something was not adding up. And then his denial of using
marijuana at all. And then the baggy of marijuana falling from
his person.
So per the breath test, which was a .059 or a .056, something still
wasn’t – his level of impairment did not match the level on the
[i]ntoxilyzer.
[Counsel]: Moreover, you detected this odor of burnt marijuana
from his person on the scene?
[Officer Chichilla]: Yes.
Notes of Testimony (N.T.), 7/23/2020, at 16; Reproduced Record at 32a (R.R.__).
Officer Chichilla acknowledged that he searched Licensee before
placing him in the holding cell and did not “discover anything on his person.” N.T.
24; R.R. 40a. However, Licensee was the only person in the holding cell. While
escorting Licensee to the breathalyzer test, Officer Chichilla saw the baggie of
marijuana “dropping out of the bottom of [Licensee’s] pant[] leg,” which was also
captured on the security video. N.T. 24-25; R.R. 40a-41a.
Licensee then testified. He denied that he was read Form DL-26B or
any “blood testing warnings” before he was asked to take the blood test; all he was
told was “[i]n the State of Pennsylvania[,] you can refuse a blood test or you can
take it. It’s your right to refuse it.” N.T. 34; R.R. 50a. Licensee refused to take the
3
blood test because he had passed the breathalyzer test and believed he was free to
leave.
At the end of the hearing, the trial court sustained Licensee’s appeal.
The trial court found Officer Chichilla credible. Nevertheless, it reasoned as
follows:
I can see where the confusion would rest with [Licensee]. He
took a test. The reading was low for the blood alcohol…. [L]ike
I said earlier, I’m not casting any judgment as far as Officer
Chichilla not being credible. But, nevertheless … [Licensee]
took one test, and then a second test is offered. I don’t believe
the second test would have been offered if the video wouldn’t
have shown the marijuana being dropped. So I am going to
sustain [Licensee’s appeal].
N.T. 44-45; R.R. 60a-61a.
PennDOT appealed to this Court. In its PA. R.A.P. 1925(a) opinion,
the trial court explained that Officer Chichilla lacked reasonable grounds to believe
that Licensee had operated his motor vehicle while under the influence of marijuana.
The baggie of marijuana that fell out of Licensee’s pants did not constitute “a
reasonable reason for the request to take a blood test.” Trial Court 1925(a) Op. at 2.
The trial court construed Section 1547(a) of the Vehicle Code to mean that a police
officer can request a licensee to submit to only one type of chemical testing. Id. at
3 (citing 75 Pa. C.S. §1547(a) (a licensee “shall be deemed to have given consent to
one or more chemical tests of breath or blood…”) (emphasis added)). Licensee
passed the breathalyzer test because it yielded a blood alcohol content of 0.056% or
0.059%, lower than the 0.08% threshold for a violation of driving under the
4
influence of alcohol.2 The trial court opined that Officer Chichilla was, thus,
precluded from requesting a blood test.
On appeal,3 PennDOT raises two issues for our review.4 First, it argues
that the trial court erred in holding that Officer Chichilla lacked reasonable grounds
to believe Licensee was operating his vehicle while under the influence of a
controlled substance in violation of Section 3802 of the Vehicle Code. Second, it
argues that the trial court erred in holding that Officer Chichilla lacked authority
under the Vehicle Code to request that Licensee take a blood test after he
successfully completed a breath test.
In support of its first argument, PennDOT contends that the trial court
erred and abused its discretion in finding that Officer Chichilla based his request for
a blood test solely on his observation of a baggie of marijuana falling from
Licensee’s pants. Officer Chichilla credibly testified to Licensee’s behavior that
prompted his arrest, i.e., his moving violations; his failure to park in a parking lane;
the odor of alcohol and burnt marijuana emanating from his person; his glassy eyes;
2
Section 3802(a)(2) of the Vehicle Code provides:
(a) General impairment.--
***
(2) An individual may not drive, operate or be in actual physical
control of the movement of a vehicle after imbibing a sufficient
amount of alcohol such that the alcohol concentration in the
individual’s blood or breath is at least 0.08% but less than 0.10%
within two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.
75 Pa. C.S. §3802(a)(2).
3
Our review determines whether the findings of fact were supported by substantial evidence,
whether an error of law was committed, or whether the trial court abused its discretion. Cole v.
Department of Transportation, Bureau of Driver Licensing, 909 A.2d 900, 902 n.5 (Pa. Cmwlth.
2006).
4
Licensee did not file a brief in this matter.
5
and his inability to pass the field sobriety tests. These constituted reasonable
grounds for Officer Chichilla to believe that Licensee was operating a vehicle under
the influence of alcohol or a controlled substance.
To support the one-year suspension of Licensee’s operating privilege
under the Implied Consent Law, 75 Pa. C.S. §1547(b)(1)(i), PennDOT must prove
that Licensee (1) was arrested for DUI by a police officer who had reasonable
grounds to believe that Licensee was operating a vehicle while under the influence
of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code;
(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. Banner v. Department of
Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999).
Here, there is no question that Licensee was the operator of a vehicle;
was asked to submit to a chemical test; refused to consent and was given the required
warnings. The only issue is whether Officer Chichilla had reasonable grounds to
believe Licensee was operating the vehicle while under the influence of a controlled
substance in violation of Section 3802 of the Vehicle Code when he arrested
Licensee for DUI. Notably, Section 3802 precludes a licensee from operating a
motor vehicle with “any amount” of scheduled controlled substance, or a metabolite
thereof, in the licensee’s blood. 75 Pa. C.S. §3802(d).5
5
It states as follows:
(d) Controlled substances.--An individual may not drive, operate or be in actual
physical control of the movement of a vehicle under any of the following
circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in
the act of April 14, 1972 (P.L. 233, No. 64), known
as The Controlled Substance, Drug, Device and
Cosmetic Act;
6
The standard of reasonable grounds to believe an operator of a vehicle
is under the influence of alcohol or a controlled substance does not rise to the level
of probable cause required for a criminal prosecution. Banner, 737 A.2d at 1207.
Reasonable grounds exist when a person in the position of the police officer, viewing
the facts and circumstances as they appeared at the time of the arrest, could
reasonably believe that the licensee was operating the vehicle while under the
influence of alcohol or a controlled substance. Id.
Whether reasonable grounds exist for an arrest is a question of law
reviewable by the court on a case-by-case basis. Id. All of the facts and
circumstances, as they appeared at the time of the arrest, must be considered. There
is not a set list of behaviors that must be exhibited in order for an officer to have
reasonable grounds. Farnack v. Department of Transportation, Bureau of Driver
Licensing, 29 A.3d 44, 48 (Pa. Cmwlth. 2011). Our case law has identified factors
that constitute reasonable grounds: staggering, swaying, falling down, belligerent or
uncooperative behavior, slurred speech, and the odor of alcohol. Stancavage v.
Department of Transportation, Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa.
Cmwlth. 2009). The absence of one or more of these factors does not mean the
officer lacks reasonable grounds to believe a motorist has driven while intoxicated.
(ii) Schedule II or Schedule III controlled
substance, as defined in The Controlled Substance,
Drug, Device and Cosmetic Act, which has not been
medically prescribed for the individual; or
(iii) metabolite of a substance under subparagraph
(i) or (ii).
75 Pa C.S. §3802(d) (emphasis added). Because marijuana is a Schedule I controlled substance,
Section 104(1)(iv) of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §780-
104(1)(iv), the Vehicle Code prohibits an individual from operating a vehicle after
consuming any amount of marijuana.
7
Farnack, 29 A.3d at 48. Further, passing a breath test does not foreclose a finding
of reasonable grounds. Id. (citing Matthews v. Commonwealth, 540 A.2d 349, 351
(Pa. Cmwlth. 1988)).
Here, Officer Chichilla credibly testified that he arrested Licensee on
suspicion of driving under the influence of a controlled substance because of
Licensee’s driving behavior and the odor of alcohol and burnt marijuana emanating
from Licensee’s person. Viewed in totality, a reasonable person could believe
Licensee was operating a vehicle under the influence of marijuana. It was irrelevant
that Licensee passed the breathalyzer test, which would not detect the presence of a
controlled substance. Accordingly, the trial court erred in concluding that Officer
Chichilla lacked reasonable grounds to believe Licensee was operating his vehicle
under the influence of a controlled substance.
PennDOT argues, next, that the trial court erred in holding that Officer
Chichilla lacked statutory authority to request that Licensee take a blood test after
he successfully completed a breath test. Section 1547(a) of the Vehicle Code
provides that where an arresting officer has reasonable grounds to make a DUI arrest,
he may request multiple chemical tests. It is within the officer’s discretion to choose
which type of test to administer first. PennDOT Brief at 27 (citing Department of
Transportation, Bureau of Traffic Safety v. Jackson, 536 A.2d 880, 882 (Pa. Cmwlth.
1988)). PennDOT argues that because Officer Chichilla had reasonable grounds to
believe that Licensee was operating his vehicle while under the influence of alcohol
or a controlled substance, he could lawfully request a blood test even after Licensee
passed the breath test. We agree.
Section 1547(a) of the Vehicle Code provides:
Any person who drives, operates or is in actual physical control
of the movement of a vehicle in this Commonwealth shall be
8
deemed to have given consent to one or more chemical tests of
breath or blood for the purpose of determining the alcoholic
content of blood or the presence of a controlled substance 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 1543(b)(1.1)
(relating to driving while operating privilege is suspended or
revoked), 3802 (relating to driving under influence of alcohol or
controlled substance) or 3808(a)(2) (relating to illegally
operating a motor vehicle not equipped with ignition interlock).
75 Pa. C.S. §1547(a) (emphasis added). The trial court interpreted the term “one or
more chemical tests of breath or blood” to mean that the police may administer
multiple tests, i.e., “chemical tests of both breath and blood.” Trial Court 1925(a)
Op. at 3. The trial court’s interpretation is not supported by case law.
In Jackson, 536 A.2d 880, this Court held that Section 1547(a) of the
Vehicle Code allows a second type of chemical test if the police officer’s request is
reasonable and not “simply to substantiate the accuracy of the first test for alcohol.”6
Id. at 881-82 (citing Department of Transportation v. McFarren, 525 A.2d 1185 (Pa.
1987)). The licensee in Jackson was arrested for DUI. The arresting officer testified
that he detected both the odor of alcohol and burnt marijuana on the licensee’s
person. After the licensee completed a breathalyzer test, which registered a positive
6
At the time Jackson was decided, Section 1547(a) provided:
General rule.--Any person who drives, operates or is in actual physical control of
the movement of a motor vehicle in this Commonwealth shall be deemed to have
given consent to one or more chemical tests of breath, blood or urine for the
purpose of determining the alcoholic content of blood or the presence of a
controlled substance 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
motor vehicle:
(1) while under the influence of alcohol or a controlled substance or
both….
Formerly 75 Pa. C.S. §1547(a) (emphasis added).
9
reaction for alcohol, the officer requested him to submit to a blood test. The licensee
refused, and PennDOT suspended his operating privilege. The trial court sustained
the licensee’s appeal and ruled that the officer’s request for a second chemical test
was invalid. The trial court reasoned that if the officer had suspected the licensee
was under the influence of both alcohol and drugs, he should have requested a blood
or urine test in the first instance, rather than subject the licensee to more than one
test. Jackson, 536 A.2d at 881. In reversing the trial court, this Court opined that a
police officer need not
choose to administer a blood or urine test in the first instance
where he suspects the presence of a combination of alcohol and
a controlled substance. To do so would more than likely result
in increased use by the police of the more intrusive types of
chemical testing in the first instance. As we stated in
[Department of Transportation, Bureau of Driver Licensing v.
Penich, 535 A.2d 296 (Pa. Cmwlth. 1988)], the police officer
may use his discretion in choosing which type of test to
administer first. Once having done so, he must establish
reasonable grounds for requesting a second type of test. We
have concluded that such reasonable grounds were present in the
instant case.
Id. at 882 (emphasis added).
By contrast, in Department of Transportation, Bureau of Driver
Licensing v. Patton, 633 A.2d 234 (Pa. Cmwlth. 1993), this Court held that a police
officer may not ask a licensee to submit to a urine test after he has submitted to a
blood test, absent competent evidence that the urine test was necessary. That the
urine test was “better” for purposes of detecting the presence of controlled
substances in the licensee’s system did not establish the reasonableness of the
request. Id. at 237.
10
Here, Officer Chichilla had “reasonable grounds for requesting a
second type of test.” Jackson, 536 A.2d at 882. Licensee was under the influence
of both alcohol and a controlled substance, and Officer Chichilla believed the second
test was reasonable because the breath test alone would not have revealed the
presence of marijuana in Licensee’s system. The blood test was requested to
determine whether Licensee was under the influence of a controlled substance. This
was authorized under Section 1547(a) of the Vehicle Code. Jackson, 536 A.2d at
882. The trial court erred in holding to the contrary.
In summary, the trial court erred in holding that Officer Chichilla
lacked reasonable grounds to believe Licensee was operating his vehicle while under
the influence of a controlled substance. Officer Chichilla acted within his discretion
under Section 1547(a) of the Vehicle Code to request that Licensee submit to a blood
test after he completed a breathalyzer test. For these reasons, we reverse the order
of the trial court and reinstate PennDOT’s one-year suspension of Licensee’s
operating privilege.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kalan W. Jones :
:
v. : No. 837 C.D. 2020
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
AND NOW, this 19th day of October, 2021, the order of the Court of
Common Pleas of Allegheny County dated July 23, 2020, in the above-captioned
matter, is hereby REVERSED and the one-year suspension of Kalan W. Jones’s
vehicle operating privilege is REINSTATED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita