Commonwealth v. Hlubin

J-E01005-17

2017 PA Super 157

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MOLLY HLUBIN

Appellant No. 951 WDA 2015

Appeal from the Judgment of Sentence May 21, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003205-2014

BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J.,
LAZARUS, J., OLSON, J., DUBOW, J., MOULTON, J., and
SOLANO, J.

OPINION BY LAZARUS, J.: FILED MAY 23, 2017

Molly Hlubin appeals from the judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, following her conviction of two

counts of driving under the influence (DUI).1 After careful review, we affirm.

The trial court aptly set forth the facts2 of the underlying case as

follows:

____________________________________________

1
75 Pa.C.S. § 3802(a)(1) (general impairment); 75 Pa.C.S § 3802(b) (high
rate of alcohol; having BAC of 0.10% to less than 0.16%).
2
The parties stipulated that the following exhibits were included as part of
the certified record for purposes of reargument:

 Exhibit 1 – West Hills DUI Task Force Policy and Procedural Guidelines
 Exhibit 2 – an unsigned sobriety checkpoint authorization form
(Footnote Continued Next Page)
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[O]n September 29, 2013, police officers from the West Hills DUI
Task Force [(“Task Force”)] conducted a sobriety checkpoint on
Steubenville Pike in Robinson Township, Pennsylvania. The Task
Force is comprised of municipal police officers from fifteen (15)
jurisdictions in the western portion of Allegheny County,
Pennsylvania, including Robinson Township and Moon Township.
After the conclusion of the Suppression Hearing, the
Commonwealth filed a Motion to Reopen the Record and Admit
New Evidence [it] could introduce, as Exhibit 4, Robinson
Township's Resolution 14-2003 that authorized [its] participation
in the [Task Force]. This [c]ourt granted that request on May
21, 2015.

At the Suppression Hearing, the Commonwealth presented
testimony of Sergeant Douglas Ogden, who is a Patrol Sergeant
with the Moon Township Police Department. Sergeant Ogden
has been with the Moon Township Police Department since 1996
and has been in law enforcement since 1989. Sergeant Ogden is
the Program Coordinator and Project Manager for the [Task
Force]. In addition to administrative tasks such as applying for
grants and managing statistics, Sergeant Ogden organizes the
checkpoints and road patrols and conducts training for the
officers involved in checkpoints and DUI enforcement and
detection. Sergeant Ogden testified that his statistical analysis
showed that most of the DUI arrests and crashes in Robinson
Township occurred at Steubenville Pike. The [Task Force] has
policies in place to identify target locations for DUI checkpoints,
which [were] admitted into evidence as Commonwealth's Exhibit
1. The [Task Force] Policy and Procedural Guidelines require
that the grant coordinator, or his designee, be present at all DUI
checkpoints.

Sergeant Ogden testified that he requested a DUI checkpoint
from September 28, 2013 at 11[:00] p.m. through September
29, 2013 at 4:00 a.m. to coordinate with the ending time of a
_______________________
(Footnote Continued)

 Exhibit 3 – a signed sobriety checkpoint authorization form
 Exhibit 4 – a Robinson Township Resolution
 Exhibit 5 – The blood test results from the county of Allegheny Office
of the Medical Examiner.

Agreed Stipulation to Supplement the Appellate Record, 1/6/17, at 3.

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concert at the Star Amphitheater because historically Robinson
Township has difficulty with drunk drivers following concerts at
that venue. On September 23, 2013, Robinson Township Police
authorized this DUI checkpoint. Thereafter, Sergeant Ogden sent
out the required press releases and the request for manpower.
At the time the checkpoint begins, Sergeant Ogden and the
officer in charge assign officers from each municipality specific
tasks with the officers from the home agency who are qualified
to administer DUI Field Sobriety Tests being assigned to the
testing area. Generally, Sergeant Ogden, as grant coordinator, is
in the area of the DUI trailer and testing area assisting officers
there, however, he also can fill in where needed when manpower
is depleted.

Sergeant Ogden was present at the September 28, 2013 DUI
checkpoint on Steubenville Pike in Robinson Township. At 12:25
a.m., he was filling in on the road because the line had become
depleted of manpower. At this time, he came into contact with
[Hlubin], who was the driver of a vehicle. After introducing
himself, Sergeant Ogden asked for her driver's license,
registration, and proof of insurance. [Hlubin] initially handed him
her Target credit card. While [Hlubin] was obtaining her
documentation, Sergeant Ogden noticed an odor [of] alcoholic
beverages coming from the vehicle and that [Hlubin] had slurred
speech. In addition, [Hlubin] admitted that she had a shot and a
beer. Sergeant Ogden then escorted her to the testing area,
explained the testing procedure, and handed her over to Officer
Sicilia of the Robinson Township Police Department. Thereafter,
Sergeant Ogden had no direct contact with [Hlubin].

Officer Dominic Sicilia, a police officer with Robinson Township,
testified that he was working the testing area in the DUI
checkpoint on Steubenville Pike in Robinson Township on
September 28-29, 2013. He further testified that he came into
contact with [Hlubin] while he was working the checkpoint. He
testified that he explained that she was going to be asked to
perform three field sobriety tests: the HGN[3] test, the walk-
____________________________________________

3
This test is known as the Horizontal Gaze and Nystagmus (HGN) test.
Nystagmus is the rhythmic oscillation of the eyeballs in either a horizontal,
vertical, or rotary direction. See Commonwealth v. Miller, 532 A.2d
1186, 1188 (Pa. Super. 1987). Officers use this test to ascertain the
(Footnote Continued Next Page)

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and-turn test, and the one-legged stand test. [Hlubin] was given
instructions on how to perform each test prior to administration
of the test, and understood the directions. With regard to the
HGN test, Officer Sicilia was looking for six (6) clues, and
observed all six (6) clues. Further, [Hlubin] exhibited two (2) out
of eight (8) clues for the walk-and-turn test. [Hlubin] exhibited
one (1) out of four (4) clues for the one-legged stand test. Based
upon his experience with intoxicated persons, his training as a
police officer, the information provided by Sergeant Ogden, and
his interaction with [Hlubin], Officer Sicilia formed an opinion
that [Hlubin] was incapable of safely operating a motor vehicle.
Thereafter, [Hlubin] consented to a blood draw, and was found
to have a blood alcohol content of .152%.

Trial Court Opinion, 1/5/16, at 2-5 (internal citations omitted).

Hlubin was charged with the aforementioned two counts of DUI. On

March 9, 2015, Hlubin filed a pre-trial motion to suppress, alleging that the

sobriety checkpoint was unconstitutional and that everything that flowed

from the illegal stop should be suppressed.4 The court denied the motion

and the matter proceeded to a bench trial before the Honorable Thomas E.

Flaherty. At trial, Hlubin and the Commonwealth stipulated to the admission

of the testimony of Officer Sicilia and Sergeant Ogden from the suppression

hearing, as well as the results of Hlubin’s blood test. Following trial, the

court convicted Hlubin on both DUI counts and sentenced her to thirty days

_______________________
(Footnote Continued)

horizontal gaze nystagmus of a motor vehicle driver suspected of driving
under the influence of alcohol. Id.
4
In her suppression motion, Hlubin also claimed that the implied consent
law was violated when her blood was not drawn at an approved facility,
probable cause did not exist to arrest her for suspected DUI, and Sergeant
Ogden did not have the authority to detain and arrest her outside of his
jurisdiction.

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of Restrictive Intermediate Punishment, six months of non-reporting

probation, and fines.

Hlubin filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of matters complained of on appeal. A panel of

this Court affirmed the trial court’s judgment of sentence. See

Commonwealth v. Hlubin, 951 WDA 2015 (Pa. Super. filed Oct. 6, 2016)

(unpublished memorandum decision). However, that decision was later

withdrawn after our Court granted reargument on December 15, 2016. The

parties filed new briefs. On reargument, Hlubin presents the following issues

for our consideration:

(1) Did the trial court err when it ruled that the checkpoint,
which led to [Hlubin’s] stop, detention, and arrest, was
lawful even though the Commonwealth failed to show
compliance with the Intergovernmental Cooperation Act
[(“ICA”)]?

(2) Did the trial court err when it held that Section 8953(a)(3)
[of the Municipal Police Jurisdiction Act [(“MPJA”)]] permits
officers to leave their primary jurisdiction for the purpose
of participating in a sobriety checkpoint?

(3) Whether or not Officer Sicilia had sufficient probable cause
to arrest [Hlubin] for the offense of DUI and to request a
chemical test?

A. Validity of Sobriety Checkpoint and the ICA

Pursuant to the ICA:

(a) General rule. — Two or more local governments in this
Commonwealth may jointly cooperate, or any local government
may jointly cooperate with any similar entities located in any
other state, in the exercise or in the performance of their
respective governmental functions, powers or responsibilities.

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(b) Joint agreements. — For the purpose of carrying the
provisions of this subchapter into effect, the local governments
or other entities so cooperating shall enter into any joint
agreements as may be deemed appropriate for those purposes.

53 Pa.C.S. § 2303 (emphasis added). Under section 2305 of the ICA, a local

government may enter into any intergovernmental cooperation with another

local government upon the passage of an ordinance of its governing body.

Id. at § 2305. In such cases, ordinances shall contain seven specific criteria

outlined in section 2307 of the ICA.5

The Commonwealth concedes, and we agree, that the DUI checkpoint

in the instant case did not comply with the ICA where the 15 municipalities

____________________________________________

5
The seven criteria are:

(1) The conditions of agreement in the case of cooperation with
or delegation to other local governments, the Commonwealth,
other states or the Federal Government.

(2) The duration of the term of the agreement.

(3) The purpose and objectives of the agreement, including the
powers and scope of authority delegated in the agreement.

(4) The manner and extent of financing the agreement.

(5) The organizational structure necessary to implement the
agreement.

(6) The manner in which real or personal property shall be
acquired, managed, licensed or disposed of.

(7) That the entity created under this section shall be
empowered to enter into contracts for policies of group insurance
and employee benefits, including Social Security, for its
employees.

53 Pa.C.S. § 2307.

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comprising the Task Force did not jointly cooperate by each adopting an

ordinance in compliance with sections 2303 and 2305. See 53 Pa.C.S. §

2315 (joint cooperation agreement deemed in force when it has been

adopted by ordinance by cooperating local governments). While Robinson

Township had proposed a resolution to participate with the Task Force, that

resolution was not ratified and adopted by the other Task Force

municipalities nor does it contain the required criteria of an ordinance under

section 2307. See supra note 6. However, this does not end our inquiry

with regard to whether the checkpoint was otherwise valid.

B. Constitutionality/Legality of Sobriety Checkpoint and the MPJA 6

Hlubin claims that because the ICA codifies the process that local

governmental units must follow when cooperating with each other “it

controls the outcome of this case as well as the legality of all sobriety

checkpoints (and all government matters) when the officers from outside the

primary jurisdiction are utilized.” Appellant’s Brief, at 31. Moreover, she

contends that “[o]nce it is shown that the Commonwealth failed to comply

with the ICA, the trial court’s decision that the checkpoint at issue was

legally constituted must be reversed [or] Article IX, § 5 of the Pennsylvania

Constitution and the ICA are rendered meaningless.” Id. We disagree.

____________________________________________

6
42 Pa.C.S. §§ 8951-8954.

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As the Commonwealth notes, while the relevant sections of the local

government code apply to “all local governments,”7 53 Pa.C.S. § 2301, the

MPJA only applies to any “duly employed municipal police officer who is

within this Commonwealth, but beyond the territorial limits of his primary

jurisdiction.” 42 Pa.C.S. § 8953(a). Specifically, the MPJA enumerates a

discrete set of circumstances under which a municipal police officer may

exercise extra-territorial authority. See generally 42 Pa.C.S. § 8953(a)(1)-

(6). Accordingly, we do not agree with Hlubin’s claim that Article IX, § 5 of

the Pennsylvania Constitution and the ICA will be “rendered meaningless and

municipal boundaries will be obliterated” by applying the MPJA in such

limited circumstances as the present case. These two statutes can be

applied concurrently; they are not mutually exclusive as they address

different circumstances that may arise within local municipalities. See 1

Pa.C.S. § 1933 (whenever general provision in statute shall conflict with

____________________________________________

7
Under the ICA, “local government” is defined as:

A county, city of the second class, second class A and third class,
borough, incorporated town, township, school district or any
other similar general purpose unit of government created by the
General Assembly after July 12, 1972.
53 Pa.C.S. § 2302.

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special provision in same or another statute, two shall be construed, if

possible, so that effect may be given to both).8

Hlubin also contends she was not lawfully arrested because the

sobriety checkpoint was not authorized under the MPJA. Specifically, Hlubin

asserts that the MPJA relates only to situations where a request for

assistance is contemporaneous with the commission of a crime and that

probable cause to believe a crime is being or has been committed is the

fundamental purpose of the MPJA.

Section 8953(a) of the MPJA delineates six specific situations wherein

an officer can go outside of his or her primary jurisdiction to make arrests,

serve warrants and perform other official functions. See 42 Pa.C.S. §

8953(a)(1)-(6). Pursuant to section 8953(a) of the MPJA:

(a) General rule. — Any duly employed municipal police officer
who is within this Commonwealth, but beyond the
territorial limits of his primary jurisdiction, shall have the
power and authority to enforce the laws of this
Commonwealth or otherwise perform the functions of that
office as if enforcing those laws or performing those
functions within the territorial limits of his primary
jurisdiction in the following cases:

* * *

(3) Where the officer has been requested to aid or assist
any local, State or Federal law enforcement officer or park
____________________________________________

8
Moreover, the extent that Hlubin raises concerns with regard to
expenditures, allocation of personnel, decisions regarding participation in
programs and liability issues if the MPJA were applied in circumstances like
the present, those matters are not before the court today.

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police officer or otherwise has probable cause to believe
that the other officer is in need of aid or assistance.

(4) Where the officer has obtained the prior consent of the
chief law enforcement officer, or a person authorized by
him to give consent, of the organized law enforcement
agency which provides primary police services to a political
subdivision which is beyond that officer’s primary
jurisdiction to enter the other jurisdiction for the purpose
of conducting official duties which arise from official
matters within his primary jurisdiction.9

42 Pa.C.S. § 8953(a)(3), (4). The MPJA is not among those statutes which

must be strictly construed and, instead, is subject to liberal construction to

effectuate its objects and to promote justice. Commonwealth v. Peters,

915 A.3d 1213 (Pa. Super. 2007).

One of the principal purposes of the MPJA is to promote public safety

while placing a general limitation on extra-territorial police patrols.

Commonwealth v. Merchant, 595 A.2d 1135, 1138 (Pa. 1991). In fact,

one of the main objectives of the MPJA is to “promote a cohesive working

relationship among municipal police departments.” Commonwealth v.
____________________________________________

9
Although we ultimately conclude that Sergeant Ogden had the authority to
stop Hlubin under section 8953(a)(3) of the MPJA, we also recognize that he
may have been authorized to conduct the stop under section 8953(a)(4)
where he had been given the consent of Robinson Township Police Chief
Vietmeier to conduct official duties in Allegheny County as a member of the
Task Force executing a joint DUI checkpoint. We also acknowledge the
relevancy of section 8953(e) of the MPJA which preserves existing and future
municipal police service agreements. See 42 Pa.C.S. § 8953(e) (“Nothing in
this section shall be construed to restrict the authority of any municipality to
maintain current or to enter into new cooperative police service agreements
with another municipality or municipalities for purposes including, but not
limited to, describing conditions of mutual aid, assigning liability and
determining appropriate costs of these cooperative efforts.”).

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Ebersole, 492 A.2d 436, 439 (Pa. Super. 1985). See Commonwealth v.

Sestina, 546 A.2d 109 (Pa. Super. 1988) (the MPJA “not only encourages

cooperative relationships among municipalities, but also between local

municipalities and the state police;” statute addresses administrative, intra-

departmental practice for state police).

Instantly, the trial court found that the roadblock, operated as part of

the Task Force, was a valid exercise of authority under section 8953(a)(3) of

the MPJA. Program coordinator and project manager for the Task Force,

Sergeant Douglas Ogden, testified that the Task Force was comprised of 15

police departments that “bonded together to do DUI enforcement.” N.T.

Suppression Hearing, 3/13/15, at 9. Each year Sergeant Ogden applies for a

grant and gathers statistics to support the administration of the grant; the

statistics compiled DUI-related crashes, fatalities, and a list of the most

common local roadways where DUI crashes occur. Id. at 10. Sergeant

Ogden runs checkpoints, road patrols, and training for the officers involved

in the checkpoints, as well as for those officers who are responsible for DUI

enforcement and detection. Id. Sergeant Ogden also testified that he has

two co-coordinators that assist him on the scene at an active checkpoint.

Id. at 11. Finally, Sergeant Ogden testified that Steubenville Pike in

Robinson Township, where the instant checkpoint was located, is identified

as a DUI problem location as was reported to him by Robinson Township

Sergeant Joel Hamilton. Id. at 11-12.

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Sergeant Ogden testified that there were established program policies

and procedural guidelines10 associated with the Task Force that were sent to

every member department. Id. at 14, 20 (“Every one of the members of

my task force has a copy of it that I have sent and they have it at their

disposal.”). In this particular case, the sobriety checkpoint was headed by

Sergeant Hamilton; more than 25 officers were authorized to man the

checkpoint. Id. at 15. Sergeant Ogden sent Sergeant Hamilton a sobriety

checkpoint authorization form, requesting that he have the Robinson

Township police chief sign the form to authorize Ogden to be out in the road

conducting the checkpoint. Id. at 17. Robinson Township Police Chief Dale

Vietmeier returned the signed form11 five days before the checkpoint took

____________________________________________

10
The procedural policy and guidelines for the Task Force include the
following information:

 Purpose of Task Force;
 Definition of Sobriety Checkpoint;
 Policy of the Task Force;
 Checkpoint Procedures, including Site Selection, Personnel Selection
and Deployment, Training, Checkpoint Duration, and Officer
Responsibilities;
 Checkpoint Tactics and Guidelines;
 Scheduling & Administrative Concerns; and
 External Support

West Hills Area DUI Task Force Sobriety Checkpoint Program: Policy and
Procedural Guidelines; Commonwealth Exhibit 1.
11
The form states:

(Footnote Continued Next Page)

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place. Id. at 18; Commonwealth’s Exhibit 3. Information regarding the

exact location, time, officer in charge and the logistics of the checkpoint is

also included in the form. Id. An email press release about the checkpoint

was sent in advance to local television, radio, and print news outlets, as well

as a designated mailing list. Id. at 23.

Based upon this testimony, we affirm the trial court’s conclusion that

the instant checkpoint was valid under subsection 8953(a)(3) of the MPJA.

There is no statutory language in the MPJA, specifically section 8953(a)(3),

that would impose a “contemporaneous” requirement upon an officer’s

request for aid or assistance. In fact, subsection 8953(a)(2), often termed

the “hot pursuit” exception of the MPJA, specifically applies to those

instances where an officer’s chase into a neighboring jurisdiction is

“immediate, continuous, and uninterrupted.” Commonwealth v. McPeak,

708 A.2d 1263, 1266 (Pa. Super. 1998). Moreover, “it is noteworthy that

the predecessor [of the MPJA] made provision for police action outside [an

officer’s] primary jurisdiction in only one circumstance, i.e., hot pursuit.”

Merchant, 595 A.2d at 1138-39. “The inclusion of additional instances of

authorization indicates that the General Assembly intended to expand the
_______________________
(Footnote Continued)

I hereby authorize the operation of a sobriety checkpoint as
outlined above and adhering to standard operating procedures
that have been established.

West Hills DUI Task Force Sobriety Checkpoint Authorization Form, 9/23/13.

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powers of local police to protect the public, where such expansion would not

adversely affect the ultimate goal of maintaining police accountability to

local authority.” Id. at 1139. Thus, in light of the purpose and spirit of the

MPJA, in conjunction with its liberal construction, we decline to read such a

“contemporaneous” element into subsection (a)(3). Peters, supra.

Here, Robinson Township Police Chief Vietmeier and Officer-in-Charge

Sergeant Hamilton authorized Sergeant Ogden, as Task Force

representative, to operate the sobriety checkpoint in his jurisdiction and to

“adher[e] to the standard operating procedures that have been established.”

West Hills Task Force Sobriety Checkpoint Authorization Form, 9/23/15.

This arrangement represents Robinson Township’s request for “aid and

assist[ance]” from Moon Township Sergeant Ogden in carrying out a sobriety

checkpoint that served the legitimate purpose of reducing death, injury and

property damage resulting from motor vehicle crashes due to intoxicated or

chemically impaired drivers from the surrounding municipalities.

Moreover, even if the sobriety checkpoint was not valid under the

stricture of the MPJA, suppression is not warranted under the circumstances.

In Commonwealth v. O’Shea, 567 A.2d 1023 (Pa. 1989), the Pennsylvania

Supreme Court approved of a case-by-case approach, applying the following

factors to determine whether suppression is warranted where evidence is

obtained in violation of the MPJA: intrusiveness of the police conduct; the

extent of deviation from the letter and spirit of the Act; and the prejudice to

the accused. Id. at 1030; see Commonwealth v. Chernosky, 874 A.2d

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123 (Pa. Super. 2005) (en banc) (concluding that where officer’s action did

not constitute type of behavior legislature sought to prohibit through

enactment of MPJA, suppression not appropriate remedy; Court rejected

absolutist approach of exclusionary rule in such cases).

Here, the police were not intrusive in detaining motorists at the

checkpoint. Sergeant Ogden testified that the stops generally lasted only 30

to 45 seconds in length and involved officers first identifying themselves,

asking for a driver’s identifying documents (license, registration and

insurance), and posing limited follow-up questions. N.T. Suppression

Hearing, 3/13/15, at 26-27. The checkpoints furthered the purpose of the

MPJA by “reduc[ing] the accidental death, injury and property-damage

resulting from motor vehicle crashes involving intoxicated and chemically

impaired operators . . . decreas[ing] the number of intoxicated and

chemically impaired offenders on the highways of the member communities

by conducting sobriety checkpoints.” West Hills Area DUI Task Force

Sobriety Checkpoint Program: Policy and Procedural Guidelines, at 2.

Finally, there was minimal to no prejudice suffered by drivers stopped at the

checkpoints. See Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa.

2008) (sobriety checkpoints do not offend Fourth Amendment because they

are “a reasonable means of advancing a vital public interest, involving only a

modest intrusion on the privacy and liberty of motorists”); see also

Commonwealth v. Henry, 943 A.2d 967 (Pa. Super. 2008) (where officer

unintentionally failed to follow appropriate MPJA procedure after detaining

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defendant and defendant was not prejudiced, evidence should not have been

suppressed).

C. Probable Cause to Arrest for DUI

In her final issue, Hlubin asserts that Officer Sicilia did not have

probable cause to arrest her for DUI. We disagree.

Probable cause for a DUI arrest is present when a police officer has

sufficient facts at his disposal to warrant a prudent person to believe that

the driver of a vehicle is under the influence of alcohol. Commonwealth v.

Angel, 946 A.2d 115 (Pa. Super. 2008). The probable cause determination

is made based upon the totality of the circumstances and “a police officer

may utilize both his experience and personal observations to render an

opinion as to whether a person is intoxicated.” Commonwealth v.

Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citation omitted).

Here, Sergeant Ogden testified that when he stopped Hlubin at the

checkpoint and asked her for her driver’s license and proof of registration

and insurance, Hlubin’s reaction “was slow and fumbled and she . . . started

handing me a Target credit card as opposed to a driver’s license.” N.T.

Suppression Hearing, 3/13/15, at 31. Moreover, Sergeant Ogden testified

that he noticed a strong odor of alcohol coming from Hlubin’s vehicle and

that her speech was slurred. Id. at 32. Ultimately, Hlubin told Sergeant

Ogden that “she may have had a shot and a beer.” Id.

Officer Sicilia, who had training in field sobriety and had conducted

approximately one hundred prior DUI investigations, performed three field

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sobriety tests on Hlubin at the checkpoint. Id. at 60, 62. While conducting

the tests, Officer Sicilia noticed that Hlubin had bloodshot, glassy eyes and

an odor of alcohol emanating from her. Id. at 63. Officer Sicilia concluded

that Hlubin was impaired after she exhibited all six clues during the HGN

test. Id. As a result of these findings, Officer Sicilia opined that Hlubin was

incapable of driving a motor vehicle and placed her under arrest. Id. at 66.

Under a totality of the circumstances, we conclude that Officer Sicilia

had probable cause to arrest Hlubin for suspected driving under the

influence. 75 Pa.C.S. §§ 3802(a)(1), (b); Commonwealth v. Hilliar, 943

A.2d 984 (Pa. Super. 2008) (holding probable cause existed to arrest driver

for DUI where driver smelled of alcohol and his speech was slurred).12

Judgment of sentence affirmed.

____________________________________________

12
Hlubin argues in her appellate brief that without reasonable grounds to
believe that she was driving under the influence, the police were not
permitted to administer a blood test under 75 Pa.C.S. § 1547(a)(1). See
Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006). We first note
that Hlubin does not raise this issue in her Pa.R.A.P. 1925(b) concise
statement. Thus, we could find the issue waived on appeal. See Pa.R.A.P.
1925(b)(4)(vii). However, even if it were not waived, because there was
probable cause to arrest Hlubin for DUI, this issue is meritless.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2017

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