Stancavage v. Com., Dept. of Transp.

Decision Date17 November 2009
Docket NumberNo. 127 C.D. 2009,127 C.D. 2009
PartiesRobert STANCAVAGE v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Bureau of Driver Licensing, Appellant.
CourtPennsylvania Commonwealth Court

Terrance M. Edwards, Asst. Counsel and Harold H. Cramer, Asst. Chief Counsel, Harrisburg, for appellant.

Andrew B. Zelonis, Barnesville, for appellee.

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

OPINION BY Judge BUTLER.

The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals the January 9, 2009 order of the Court of Common Pleas of Schuylkill County (trial court) reinstating the operating privileges of Robert Stancavage (Stancavage). The only issue in this case is whether the arresting officer had reasonable grounds to believe that Stancavage was under the influence of alcohol or a controlled substance while operating his vehicle on February 21, 2008, in violation of Section 3802 of the Vehicle Code.1 For the reasons that follow, we affirm the trial court.

Stancavage was driving with a passenger on February 21, 2008 when he was pulled over by West Penn Township Chief of Police, Brian Johnson (Chief Johnson), allegedly for speeding and following too closely behind another vehicle. While the record contains no details regarding Stancavage's alleged following too closely, he was accused of driving sixty-two miles per hour where the speed limit was forty-five miles per hour. After being stopped, Stancavage produced his driver's license and registration upon request. Chief Johnson testified that as Stancavage was handing him the information, the Chief noticed that his eyes were glassy, but that there was no smell of alcohol emitting from him.

Chief Johnson asked Stancavage to step out of the vehicle, and take a series of field sobriety tests. While Chief Johnson testified that Stancavage failed all three field sobriety tests administered, Stancavage testified that he did not believe he failed any of the tests. Specifically, Chief Johnson cited as Stancavage's failures: (1) his failure to keep his head still and keep his eyes from "jerking or jumping" during a horizontal gaze nystagmus (HGN) test;2 (2) failing to count and turn as instructed during a heel to toe walk; and (3) failing to stand on one leg until the officer told him to stop. Reproduced Record (R.R.) at 20a-21a. Stancavage explained that the testing surface was beveled and that the officer did not properly instruct him as to how to complete the tests. R.R. at 33a.

Chief Johnson further testified that Stancavage consented to a search of his car. Both Chief Johnson and a K-9 unit searched the car. The K-9 unit detected the possible presence of a controlled substance on the vehicle, but Chief Johnson's subsequent search produced no controlled substances.

Chief Johnson arrested Stancavage for driving under the influence of alcohol or controlled substances (DUI) and took him to the local hospital for a blood alcohol content reading. Chief Johnson read the Implied Consent warnings to Stancavage, and Stancavage signed Form DL-26.3 Stancavage testified that he refused the chemical test because he was angry at being pushed too far and that he was "clearly not intoxicated." R.R. at 34a.

Ultimately, no charges were filed against Stancavage for DUI or possession of controlled substances. Stancavage was not cited for speeding, not cited for following too closely, and not cited for any other traffic violation.

Thereafter, however, Stancavage received notice that his operating privileges were suspended for one year, effective July 23, 2008, for refusal to submit to chemical testing in violation of Section 1547 of the Vehicle Code.4 On July 17, 2008, Stancavage filed a timely appeal, and a hearing was held before the trial court on January 8, 2009.5 The trial court determined that Chief Johnson did not have reasonable grounds to arrest Stancavage for DUI, sustained Stancavage's appeal, and reinstated his operating privileges. Specifically, the trial court found Stancavage to be credible, and concluded:

The sole issue is whether the officer had "reasonable grounds" to demand [a chemical] test. The Trial Court does not believe that he did. Speeding or following too closely is not an indicatior of intoxication. Many motorists do so who are not under the influence of intoxicants. ... [T]here is no evidence that Defendant attempted to evade the traffic stop or flee from the area. Glossy eyes are an indicator of intoxication but also of many other conditions. There was no odor of alcohol present. There were no controlled substances. Defendant permitted the officer to search his vehicle and himself. The girlfriend was searched. No controlled substances were found on her person. The officer's testimony about Defendant's failure to "pass" the field sobriety tests was weak and unconvincing in that he could not remember exactly the extent of Defendant's failure. There was no evidence that Defendant staggered, swayed, fell down, or had to hold onto anything in ambulating and/or performing the maneuvers. There was no slurred speech, no unruly behavior. Although the dog "hit" on the vehicle, the subsequent search thereof revealed the absence of any controlled substances. There was no testimony that Defendant had any difficulty producing the cards requested of him. Curiously, he was never charged with the offenses for which he was stopped.... [T]he Trial Court does not believe that Defendant's "glossy eyes", the drug dog's "hit" (which proved to be misplaced), and the equivocal testimony about Defendant's alleged "failure" of field sobriety tests constitutes "reasonable grounds" for him to be detained for a blood test.

R.R. at 61a. PennDOT appealed to this Court.6

Section 1547(b) of the Vehicle Code states that if a person arrested for violating Section 3802 of the Vehicle Code (relating to driving under the influence of alcohol or a controlled substance) refuses to submit to a chemical test, PennDOT will suspend his operating privileges for 12 months, or for 18 months if the person has previously refused chemical testing or had a prior suspension of his operating privileges under Section 1547 of the Vehicle Code. 75 Pa.C.S. § 1547(b)(1). If the suspension is appealed, PennDOT must establish that the person:

(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 influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.

Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999) (emphasis added). In the present case, there is no dispute that Stancavage was asked to submit to a chemical test, refused to do so, and was properly warned of the consequences of his refusal. Thus, as stated by the trial court below, the only issue remaining is whether the police officer had reasonable grounds to believe that the licensee was under the influence while operating a vehicle.

Whether evidence is sufficient to constitute `reasonable grounds' can only be decided on a case-by-case basis. The test, however, is not very demanding. We not[e] initially that, for `reasonable grounds' to exist, the police officer obviously need not be correct in his belief that the motorist had been driving while intoxicated. We are dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such a test. The only valid inquiry on this issue at the de novo hearing is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle and under the influence of intoxicating liquor [or controlled substance].... At trial, the only relevant factual defense would be a showing that the motorist's behavior was not, in fact, as the officer testified. It would then be for the trial court to resolve issues of credibility.

Dep't of Transp., Bureau of Traffic Safety v. Dreisbach, 26 Pa.Cmwlth. 201, 363 A.2d 870, 872 (1976) (footnotes omitted).

In the present case, PennDOT argues that the reasonable grounds for arrest included Stancavage's traffic violations, i.e., speeding and following too closely, glassy eyes, failure to complete three field sobriety tests, and a "hit" on his car by a drug-sniffing dog, and that the court must consider the totality of circumstances when analyzing these grounds. See Riley v. Dep't of Transp., Bureau of Driver Licensing, 946 A.2d 1115 (Pa.Cmwlth.2008).

While there is no set list of behaviors that a person must exhibit for an officer to have reasonable grounds for making an arrest, case law has provided numerous examples of what this Court has accepted as reasonable grounds in the past, e.g., staggering, swaying, falling down, belligerent or uncooperative behavior, slurred speech, and the odor of alcohol. See Riley; Hasson v. Dep't of Transp., Bureau of Driver Licensing, 866 A.2d 1181 (Pa.Cmwlth.2005); Dep't of Transp., Bureau of Driver Licensing v. Terreri, 114 Pa.Cmwlth. 208, 538 A.2d 639 (1988); White v. Commonwealth, 59 Pa.Cmwlth. 156, 428 A.2d 1044 (1981); Corry v. Commonwealth, 59 Pa.Cmwlth. 324, 429 A.2d 1229 (1981); Bruno v. Dep't of Transp., 54 Pa.Cmwlth. 353, 422 A.2d 217 (1980); and Dreisbach. As observed by the trial court, Stancavage exhibited none of these behaviors. In addition, while the police officer initiated his field sobriety tests on the basis of Stancavage's glossy or glassy eyes, the cases where glassy eyes were found as an indicator of intoxication invariably involve at least one other obvious physical condition that would provide reasonable grounds for arrest. See...

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