Schindler v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

DISSENTING OPINION BY

Senior Judge FLAHERTY.

I respectfully dissent to the Majority’s decision which concludes that the arresting officer lacked reasonable grounds to believe that Derek Daniel Schindler (Schindler) had been operating his vehicle under the influence of alcohol.

The Department of Transportation, Bureau of Driver Licensing (Department) appeals from a decision of the Court of Common Pleas of Allegheny County (trial court) which sustained the appeal of Schindler from a one-year suspension of his operating privileges for refusal to submit to chemical testing, pursuant to Section 1547(b)(l)(i) of the Vehicle Code, 75 Pa. C.S. § 1647(b)(1)®.

Pursuant to 75 Pa.C.S. § 1547(b)(1), it was necessary for the Department to prove that Schindler was arrested for a violation of 75 Pa.C.S. § 3802 by a police officer who had reasonable grounds to believe that Schindler was operating or was in actual physical control of the movement of a vehicle while under the influence of alcohol or drugs. The trial court determined that Officer Sciullo did not have such reasonable grounds. “Whether reasonable grounds exist is a question of law renewable by this court on a case-by-case basis.” Wilson v. Commonwealth, 53 Pa.Cmwlth. 342, 417 A.2d 867 (1980). “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. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 446, 737 A.2d 1203, 1207 (1999). Also, the police officer need not be correct in his belief. Department of Transportation, Bureau of Driver Licensing v. Gonzalez, 110 Pa.Cmwlth. 379, 532 A.2d 533 (1987).

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. Thus, it is not relevant that the motorist later, at the time of trial, can establish a cause other than intoxication for such observed behavior as slurred speech or an unsteady gait. At trial, the only *607relevant factual defense would be a showing that the motorist’s behavior was not, in fact, as the officer testified. (Emphasis added).

Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa.Cmwlth. 201, 363 A.2d 870, 872 (1976).

Officer Sciullo observed sufficient indicia of intoxication that reasonably could have led him to believe that Schindler was driving under the influence of drugs or alcohol. Officer Sciullo testified that he observed Schindler’s car on its roof, after having rolled over in a single-car accident at 3 a.m., that Schindler was seated next to the car, that Schindler stated that he fell asleep behind the wheel, that his speech was slurred and his gait was unsteady, that Schindler passed the preliminary breath test (which may rule out the presence of alcohol, but does not rule out the presence of drugs), but failed the walk and turn, the one-leg stand and the finger to nose test. Further, Officer Sciullo observed that Schindler refused all medical treatment from the paramedics and refused to be transported to the hospital for treatment.

The trial court determined that based on the severity of the accident, a head injury was more likely and once Officer Sciullo determined that the preliminary breath test was negative, that Officer Sciullo did not have reasonable grounds to believe that Schindler was operating a vehicle while under influence of alcohol or a controlled substance. The trial court stated that “[gjiven the negative read on Schindler’s PBT, Officer Sciullo should have reasonably ruled out DUI since he entered the scene of such an obviously grave car accident. It was more likely than not that Schindler had been traumatized. His car was on its roof.” (Trial court opinion at 4)(Emphasis added).

However, “the test for determining whether or not an officer has reasonable grounds” ... is not very demanding, and the officer need not be correct in his belief. Gonzalez, 532 A.2d at 534. In McCallum v. Commonwealth, 140 Pa.Cmwlth. 317, 592 A.2d 820 (1991), we determined that “the police officer’s reasonable grounds will not be rendered void even if the belief is later discovered to be erroneous.... The police officer’s belief must only be objective in light of the surrounding circumstances, and ‘the existence of reasonable alternative conclusions does not necessarily preclude the arresting officer’s actual belief from being reasonable.’ ” Id., 592 A.2d at 822 (citations omitted).

In the present controversy, the police officer believed that Schindler was operating a motor vehicle while under the influence of a controlled substance, due to his refusal of medical help, his slurred speech, his unsteady gait, and due to the fact that it was a one-car accident at 3:00 a.m. Although it was reasonable to believe, as the trial court did, that the head injury could have caused Schindler’s unusual actions, the police officer’s belief is also reasonable. There were two possible grounds for Schindler’s behavior. The law only requires “reasonable grounds” for the police officer’s belief. The statute does not make the officer’s belief unreasonable because there could be another cause for the actions of the vehicle operator. Thus, the trial court erred in determining that it was an unreasonable belief.

Next, the Department contends that the trial court erred as a, matter of law in determining that Schindler had satisfied his burden of proof that he was incapable of making a knowing and conscious refusal of chemical testing of his blood.

Once the Department satisfies its burden of proving that Schindler was arrested for operating a vehicle in violation of 75 *608Pa.C.S. § 3802, was asked to submit to a chemical test, refused to submit to such test and was specifically warned that a refusal to submit to such testing would result in the suspension of his operating privileges for a period of twelve months, the burden shifts to Schindler. Schindler must prove that he was physically incapable of completing the chemical test or that his refusal was not knowing and conscious. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.Cmwlth.2005).

The trial court determined that Schindler satisfied his burden of proving that he could not make a knowing and conscious decision when he refused the chemical testing. The trial court stated:

In the present case, hindsight confirms that Schindler was not driving under the influence of any illicit substance. To punish him with a suspension for refusal would be worse than pouring salt into his wounds, since chemical testing was performed and Schindler’s blood was clean. It is also inappropriate since his head injury at the time might likely have prevented him from making a knowing and conscious refusal necessary to warrant suspension. Cartwright v. Commonwealth, 138 Pa.Cmwlth. 325, 587 A.2d 909 (1991). (Emphasis in original).

Trial Court Opinion, August 18, 2008, at 3-4.

In Commonwealth v. Passarella, 7 Pa.Cmwlth. 584, 300 A.2d 844 (1973), James Passarella (Passarella) was discovered behind the wheel of a car which had just been in an accident. Passarella was taken to a hospital, examined and released. He was then charged with driving under the influence and asked to take a breathalyzer test and subsequently, a blood test. He refused to take both tests. At a hearing to contest his license suspension, Passarella testified that he had no recollection of the events surrounding the accident, including being asked to take the tests. Over objection of counsel, Passarella presented the testimony of Herbert F. Homes, a man who operates an independent service of producing hospital records for court. Homes testified that the diagnosis on Pas-sarella’s record was “multiple abrasions, possible cerebral concussion.” Id. 300 A.2d at 586. The Commonwealth objected to Homes testimony, as he lacked the qualifications necessary to testify about such records. The trial court determined that Passarella suffered a cerebral concussion and, therefore did not make a knowing and conscious refusal. Our court reversed the trial court and determined in pertinent part as follows:

No medical doctor testified that appellee suffered an actual concussion; no medical evidence was introduced as to what effects such a concussion would have had on appellee after he was released from the hospital. Testimony as to appellee’s medical “record” were of doubtful validity and merely indicated that a “possible” concussion occurred.... Certainly every “act, condition or event” which some hospital physician places in a hospital record does not ipso facto become competent when later an issue is being judicially tried to which such fact would be relevant if proved by competent testimony. (Emphasis and citations omitted).

Id., 300 A.2d at 587-588.

In the present controversy, like the facts in Passarella, no medical doctor testified that Schindler suffered an actual head injury. In fact, the report was presented by Schindler’s mother. Thus, any testimony regarding the emergency room report presented by Schindler’s mother would not have been competent.

Because the officer had reasonable grounds to request Schindler submit to chemical testing and there was no proof of *609a head injury being suffered by Schindler or that such head injury caused Schindler to be unable to make a knowing and conscious refusal, I would reverse the trial court’s decision.