Planchak v. Commonwealth
| Decision Date | 19 March 2013 |
| Docket Number | No. 1171 C.D. 2012,1171 C.D. 2012 |
| Parties | John Robert Planchak, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
John Robert Planchak (Licensee) appeals from an order of the Court of Common Pleas of Montgomery County (trial court)1 that denied his statutory appeal from a one-year suspension of operating privilege pursuant to Section 1547(b)(1) of the Vehicle Code, commonly known as the Implied Consent Law.2 The Department of Transportation, Bureau of Driver Licensing (Department) suspended Licensee's operating privilege as a result of his refusal to submit to chemical testing. Licensee contends the trial court erred by concluding the officer had reasonable grounds to believe he violated Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. He also challenges the adequacy of the officer's warning as to the consequences of refusal. Upon review, we affirm.
The Department notified Licensee of the one-year suspension of his operating privilege as a consequence of refusing to submit to chemical testing after his arrest for driving under the influence (DUI). Licensee timely appealed to the trial court.
The trial court held a hearing at which the Department presented the testimony of two witnesses, Corporal Andrew Fidler and Officer Aaron Michael Barkmeyer (collectively, Officers), who responded to the scene. Officer Barkmeyer received a report of a suspicious vehicle parked on the grassy lawn in front of a business located on a heavily travelled thoroughfare. Licensee was slumped over the wheel when Officer Barkmeyer and Sergeant Paul Cooper arrived; "the vehicle was running at the time." Reproduced Record (R.R.) at 15a. Initially, the driver did not respond when they attempted to wake him. Officer Barkmeyer detected a strong odor of alcohol and noted, once Licensee awoke, that his eyes were glassy and bloodshot.
Once coaxed from the vehicle, Licensee could not perform the field sobriety tests. He refused to submit to a portable breath test. 75 Pa. C.S. §1547(k) (). When asked where he was going, Licensee responded "Pittsburgh." When asked how he was getting there, Licensee stated, "I'm streeting." R.R. at 18a. The Officers placed Licensee under arrest for DUI. Officer Barkmeyer then read the Implied Consent Law warnings verbatim to Licensee from a Form DL-26, Chemical Testing and Refusal Report (Warning).
After they reached the police station, Officer Barkmeyer again asked Licensee to submit to testing and to read the Warning. Licensee responded that he was "not submitting to anything without speaking to a lawyer." R.R. at 19a. Officer Barkmeyer responded that Licensee did not have a right to speak to an attorney before agreeing to submit to chemical testing. Licensee repeated he would not do anything until he consulted with an attorney.
Officer Barkmeyer acknowledged he did not witness Licensee operating the vehicle on the highway. Rather, he "observed the tire tracks coming from the road up to the curb to where his vehicle was resting on the property." R.R. at 22a. Officer Barkmeyer did not know how long Licensee's vehicle was on the grass. On cross-examination, Officer Barkmeyer emphasized that Licensee understood he would lose his license if he refused chemical testing.
Corporal Fidler arrived on the scene after the first responding officers coaxed Licensee from his vehicle. He testified he observed Officer Barkmeyer reading to Licensee from the DL-26 Form, but he could not hear what he was saying.
Licensee testified he pulled over into the lawn because he was falling asleep while driving. Licensee admitted Officer Barkmeyer told him he could lose his license if he did not submit to chemical testing. However, Licensee testified Officer Barkmeyer did not let him read the form from which the officer was reading. Licensee testified he started to write "Refuse" on the form, but the officer took theform before he could do so. R.R. at 55a. Licensee testified that if he knew he would lose his license as a consequence of refusal, he would have given a chemical sample.
The trial court denied the appeal and upheld the suspension. The trial court concluded the Department established the arresting officer had reasonable grounds to believe Licensee operated his vehicle while under the influence. The trial court did not credit Licensee's testimony regarding his alleged confusion about the consequences of refusal.
Licensee now appeals to this Court.3 Licensee contends the trial court erred in finding the Officers had reasonable grounds to believe that he was in violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. He argues a 2004 amendment altered the reasonable grounds standard, requiring the suspect to be on a highway while under the influence. Licensee also asserts Officer Barkmeyer confused him by twice advising him, before reading the Warning, that he "could" lose his license.
To sustain a license suspension under the Implied Consent Law, the Department must establish a licensee: (1) was arrested for DUI 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;(2) was asked to submit to a chemical test (e.g., blood test); (3) refused to do so; and, (4) was specifically warned a refusal might result in a license suspension. See Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336 (Pa. Cmwlth. 2010). The trial court concluded the Department met its burden of proving each element to support a license suspension.
That Licensee was asked to submit to a chemical test and refused to do so is undisputed. There is also no dispute that Officer Barkmeyer read the full Warning to Licensee. Licensee challenges whether the Officers had reasonable grounds to believe he violated Section 3802 and whether the warning of the consequences of refusal was clear under the circumstances. We address each issue in turn.
The trial court concluded the Officers had reasonable grounds to believe Licensee operated his vehicle in violation of Section 3802 of the Vehicle Code. Licensee argues there is no evidence regarding when his vehicle was on a highway, which is a required element for reasonable grounds.
Reasonable grounds exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999) (); Sisinni v. Dep't ofTransp., Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 44 A.3d 1163 (2012).
The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Sisinni; Vinansky v. Dep't of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995). In Sisinni, we recently reiterated, "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, 31 A.3d at 1259 (citations omitted). "Whether reasonable grounds exist is a question of law reviewable by this Court on a case-by-case basis." Id. at 1257.
Licensee argues the Officers lacked reasonable grounds under Section 3802 because they did not find him in actual physical control of the vehicle on a highway. Applicable precedent does not support Licensee's interpretation. Our Supreme Court explained:
In determining whether an officer had reasonable grounds to believe that a motorist was in "actual physical control" of a vehicle, the court must consider the totality of the circumstances, including the location of the vehicle, 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. Commonwealth v. Wolen, 546 Pa. 448, 450, 685 A.2d 1384, 1385 (1996).
Banner, 558 Pa. at 446-47, 737 A.2d at 1207 (emphasis added). Applying this standard, this Court consistently holds that a licensee found in a parked vehicle, not located on a highway, while the engine is running, constitutes the requisitereasonable grounds for an arrest for DUI. See, e.g., Vinansky; Dep't of Transp., Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993).
In Vinansky, actual physical control was present where the licensee was discovered slumped over the steering wheel of a truck parked in a parking lot behind a fire department social hall. The vehicle's engine was running, and its brake lights were on.
In Paige, actual physical control was present where the licensee was asleep, slumped over the steering wheel with the key in the ignition. The vehicle was parked on a city street with its parking lights on. We explained, "We do not require the arresting officer to actually observe the arrestee operating the motor vehicle." Paige, 628 A.2d at 919.
In Polinsky v. Department of Transportation, 569 A.2d 425 (Pa. Cmwlth. 1990), we concluded the officer had reasonable grounds to believe the licensee was in actual physical control of the vehicle when she was found asleep behind the wheel of her vehicle, parked adjacent to a fast food restaurant pick-up window. The headlights of the car were on, and the standard transmission was in gear, although the engine was not running.
We relied on these cases in Riley v....
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