Sitoski v. Com., Dept. of Transp., Bureau of Driver Licensing

• Decision Date: 15 December 2010
• Parties: Robert M. SITOSKI, Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.
• Court: Pennsylvania Commonwealth Court

11 A.3d 12

Robert M. SITOSKI, Appellant

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 30, 2010.

Decided Oct. 20, 2010.

Publication Ordered Dec. 15, 2010.

Robert M. Sitoski, Philadelphia, for appellant.

Terrance M. Edwards, Asst. Counsel, Harrisburg, for appellee.

BEFORE: COHN JUBELIRER, Judge, and BROBSON, Judge, and FRIEDMAN, Senior Judge.

OPINION BY Judge COHN JUBELIRER.

Robert M. Sitoski (Licensee) appeals from the order of the Court of Common Pleas of Delaware County (trial court), which denied Licensee's appeal from the eighteen-month suspension of his driver's license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) pursuant to the Implied Consent Law, Section 1547(b)(1)(ii) of the Vehicle Code.¹ On appeal, Licensee argues that the trial court erred and/or abused its discretion in denying his appeal because: (1) the Department did not satisfy its burden of proving that Licensee received the proper warnings regarding the loss of his driver's license; (2) Licensee's refusal to submit to chemical testing was not knowing or conscious; and (3) the Department improperly introduced evidence of a prior suspension, the appeal of which was pending at the time of the hearing. We affirm.

By letter mailed on August 21, 2008, the Department notified Licensee that his license would be suspended for eighteen months due to his refusal to submit to chemical testing on June 29, 2008 (Notice). (Letter from Department to Licensee (August 21, 2008) at 1, R.R. at 61a.) Licensee filed an appeal to the trial court, which held a de novo hearing on October 29, 2008.

At the de novo hearing, the Department offered Licensee's certified driving records (Certified Record). The Certified Record included: the Notice; the June 29, 2008 Implied Consent warnings (DL-26 Form) indicating that Licensee had refused chemical testing, signed by Officer Robert Marvil (Officer Marvil) but not signed by Licensee; the February 6, 2008, notice from the Department indicating that Licensee's license was suspended for one year based on Licensee's refusal to submit to chemical testing on November 25, 2007; a DL-26Form, dated November 25, 2007, indicating that Licensee refused to submit to chemical testing, signed by Licensee and the requesting officer; and a partial copy of Licensee's driving record. (Certified Record, Department Ex. 1, R.R. at 61a-74a.)

The Department also presented the testimony of Officer Marvil, a police officer for the Collingdale Borough Police Department, who testified as follows. While on patrol in an unmarked vehicle, Officer Marvil observed a silver Volvo, operated by Licensee, stopped for a red traffic light within an intersection and obstructing some of the traffic lanes in the intersection. (Hr'g Tr. at 4-5, R.R. at 79a-80a.) After the light turned green, Licensee pulled off to the right side of the road, allowing Officer Marvil to pass. (Hr'g Tr. at 5, R.R. at 80a.) After passing Licensee, Officer Marvil observed Licensee pull back out into traffic, at which point Officer Marvil pulled off the road and allowed Licensee to pass him. (Hr'g Tr. at 5, R.R. at 80a.) At another red traffic signal, Officer Marvil observed Licensee again stop in the oncoming lanes, again obstructing those lanes. (Hr'g Tr. at 6, R.R. at 81a.) After the light turned green, Licensee again pulled off to the side of the road to allow Officer Marvil to pass. (Hr'g Tr. at 6, R.R. at 81a.) Officer Marvil then activated his lights and siren and initiated a traffic stop. (Hr'g Tr. at 6, R.R. at 81a.)

Officer Marvil requested Licensee's license, registration, and insurance card, and advised Licensee that he was being pulled over for obstructing the two intersections. (Hr'g Tr. at 6-7, R.R. at 81a-82a.) Licensee supplied his license, but was unable to provide his registration and insurance card. (Hr'g Tr. at 7, R.R. at 82a.) While interacting with Licensee, Officer Marvil detected a strong odor of alcohol coming from Licensee, observed that Licensee's eyes were glassy, red, and bloodshot, and noticed that Licensee's speech was slurred. (Hr'g Tr. at 7, R.R. at 82a.) Officer Marvil requested Licensee to turn off and exit his vehicle and move to the rear of the vehicle; as Licensee did so, Officer Marvil observed that Licensee displayed extremely poor balance, requiring Licensee to hold onto the side of his vehicle. (Hr'g Tr. at 7-8, R.R. at 82a-83a.) Advising Licensee that he was under investigation for the suspicion of driving under the influence (DUI), Officer Marvil then began to conduct field sobriety tests. (Hr'g Tr. at 8, 19, 64, R.R. at 83a, 94a, 139a.) However, before Officer Marvil actually began the field sobriety tests, his dispatcher advised him that Licensee had an outstanding warrant for his arrest from Philadelphia County. (Hr'g Tr. at 8, R.R. at 83a.) Knowing that there was an outstanding warrant for Licensee's arrest, Officer Marvil terminated field sobriety testing, and he placed Licensee under arrest based on the outstanding warrant and for DUI, advising Licensee of the Implied Consent Law. (Hr'g Tr. at 9, R.R. at 84a.) When asked what warnings he recalled telling Licensee, Officer Marvil indicated that he was not comfortable testifying to what exactly he informed Licensee, but he recalled asking Licensee to submit to chemical testing and Licensee refusing. (Hr'g Tr. at 9-10, R.R. at 84a-85a.) Thereafter, Licensee was transferred to Collingdale Borough Police Headquarters and was placed in a holding cell, where Officer Marvil read Licensee all four paragraphs of the DL-26 Form ²word for word, and requested Licensee to submit to a blood test.³ (Hr'g Tr. at 10-14, 61-62, R.R. at 85a-89a, 136a-37a.) Licensee remained silent, and Officer Marvil deemed that Licensee was refusing to submit to chemical testing. (Hr'g Tr. at 16, R.R. at 91a.)

Licensee testified on his own behalf, explaining that he drove as he did on June 29, 2008, because he was afraid for his safety due to being closely followed by a large, unmarked SUV. (Hr'g Tr. at 88-89.) ⁴ According to Licensee, Officer Marvil administered a Preliminary Breath Test (PBT) to him at the scene, the results of which were negative, and he never refused to submit to a chemical test at the scene. (Hr'g Tr. at 89-90, 92.) Licensee indicated that Officer Marvil did not give him any implied consent warnings at the scene or at the police station. (Hr'g Tr. at 91-92.) Licensee explained that the warrant for his arrest was the result of a mix-up with his attorney on another matter and was lifted immediately. (Hr'g Tr. at 90-91.) Licensee indicated that he did not sign the DL-26 Form because he never refused and that he told Officer Marvil this at the police station. (Hr'g Tr. at 92.) Finally, Licensee testified that he had major surgery on one of his toes, which affected his sense of balance and walking. (Hr'g Tr. at 106-07.) In addition to his testimony and the hearing transcript from Licensee's DUI preliminary hearing, which Licensee sought to use to impeach Officer Marvil's credibility on certain issues, Licensee introduced: a photograph of Officer Marvil's unmarked SUV; a subpoena dated June 23, 2008, ordering Licensee to appear at the Philadelphia Municipal Court on that same day; and a photograph of Licensee's toes. (Licensee's Exs. 1-4, R.R. at 155a-97a.)

After considering the evidence and testimony presented, the trial court credited Officer Marvil's testimony and rejected Licensee's contrary testimony. (Trial Ct. Op. at 6.) The trial court provided a lengthy explanation as to why it rejected Licensee's testimony. (Trial Ct. Op. at 6-7.) The trial court concluded that: the Department satisfied its burden of proving that Licensee's license should be suspended for eighteen months, including that Officer Marvil provided Licensee with adequateimplied consent warnings and that Licensee refused to submit to chemical testing; Licensee failed to establish that his refusal was not knowing or conscious or that he was physically incapable of submitting to chemical testing; Licensee's arguments pertaining to the sufficiency of the implied consent warnings and when the warnings had to be given were without merit; and that it properly allowed the Department to submit evidence regarding Licensee's prior license suspension for refusal to submit to chemical testing to support the Department's issuance of an eighteen-month license suspension. (Trial Ct. Op. at 7-11.) Licensee now appeals to this Court.⁵

Licensee argues that the Department failed to satisfy its burden of proving that it properly suspended Licensee's license where the implied consent warnings were not read at the scene, were not sufficiently specific, and were read more than two hours after Licensee had operated his vehicle.⁶ Additionally, Licensee argues that the trial court abused its discretion in allowing the Department to introduce evidence of Licensee's prior license suspension, which was being appealed at the time of the hearing. Although we will address each of Licensee's arguments in turn, we will first address Licensee's assertion, raised throughout his brief, that the trial court abused its discretion in crediting Officer Marvil's testimony.

Licensee spends considerable effort attacking Officer Marvil's credibility citing, inter alia, Officer Marvil's lack of experience, testimony from the preliminary hearing, and inability to specifically recall exactly what warnings he gave to Licensee at the scene of the DUI stop. Licensee essentially asks this Court to reweigh the evidence, find his evidence credible, and conclude that the Department failed to establish its burden of proof. However, this Court is not vested with the authority to do so. As the Department correctly points out in its brief, this Court recently stated:

What Licensee really wants this court to do is to reweigh

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