           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Barton,                              :
                            Appellant         :
                                              :
                     v.                       :    No. 229 C.D. 2015
                                              :    SUBMITTED: August 28, 2015
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: October 14, 2015


              Licensee, James A. Barton, appeals from an order of the Court of
Common Pleas of Schuylkill County denying his statutory appeal and reinstating
the eighteen-month suspension of his operating privilege imposed by the
Department of Transportation, Bureau of Driving Licensing (Department) for
refusing to submit to chemical testing pursuant to Section 1547(b)(1)(ii)(B)(III) of
the Vehicle Code, as amended, 75 Pa. C.S. § 1547(b)(1)(ii)(B)(III).1 We affirm.


    1
       Pursuant to Commonwealth Exhibit C-1, only part of which Licensee included in the
reproduced record, Licensee had a July 2005 conviction in New Jersey for driving under the
influence of alcohol or a controlled substance (DUI) that was equivalent to the Commonwealth’s
DUI provision found in Section 3802 of the Vehicle Code, as amended, 75 Pa. C.S. § 3802.
(Footnote continued on next page…)
             Pursuant to what common pleas found to be the credible testimony of
Pennsylvania State Troopers Stephen Kleeman and Michael Pahira, the facts are as
follows. At approximately 11:00 p.m. on February 24, 2014, the troopers were
dispatched to a single-vehicle crash in the area of Red Dale Road in West
Brunswick Township, Schuylkill County. In the middle of the road, Trooper
Kleeman observed a 2007 brown Chevrolet Tahoe, which had sustained severe
damage as a result of a rollover. Licensee was standing next to the driver’s side
door and admitted to being the driver and to having consumed alcohol earlier in the
day. Detecting an odor of alcohol, Trooper Kleeman observed that Licensee’s
speech was slurred, his attire disheveled and his movements sluggish.            In
describing the accident to the troopers, Licensee stated that he had been traveling
east bound and had lost control of his vehicle when attempting to avoid a herd of
deer. His vehicle struck a utility pole on the berm and rolled over.
             Also observing signs that Licensee had been consuming alcohol,
Trooper Kleeman’s partner, Trooper Pahira, asked Licensee to perform the
Horizontal Gaze Nystagmus (HGN) test and explained to him the reason behind
the request. Trooper Pahira administered the HGN test and it yielded six out of six
indicators of intoxication. Having observed Licensee walk, Trooper Pahira did not
feel comfortable in requesting that he perform the one-legged stand or the walk and
turn test. The trooper, therefore, requested that Licensee submit to the Portable
Breath Test (PBT) in order to get a more accurate assessment as to his level of
impairment. Licensee agreed and the PBT test yielded a reading of .197% blood-

_____________________________
(continued…)
Record, Item No. 9, December 11, 2014 Hearing Transcript, Commonwealth Exhibit C-1.
Accordingly, the eighteen-month enhanced suspension was warranted.



                                          2
alcohol content. Trooper Pahira, therefore, entered the patrol vehicle in order to
get the Department’s Implied Consent form (DL-26 form).
              Subsequently, while sitting in the passenger seat of the police SUV
vehicle, Trooper Pahira read the DL-26 form verbatim to Licensee, who was
standing next to Trooper Kleeman at the passenger side window of the police
vehicle. When Licensee advised both troopers that he was unsure as to whether he
should submit to testing, Trooper Kleeman told him that, if it were him, he would
take the test. After deliberating for a few minutes, Licensee verbally stated that he
was not going to submit to testing. Trooper Pahira put an “x” on the DL-26 form
and had Licensee sign it to indicate his refusal.2 While waiting for the scene to be
cleared, the troopers put Licensee in the police vehicle because it was cold outside.
During that time, Trooper Kleeman advised him that he was going to be arrested
for DUI and other summary offenses and that he would receive something in the
mail. In light of Licensee’s continued refusal to go to the hospital for medical
treatment, the troopers drove him to his relatively near-by residence.
              As a consequence of Licensee’s refusal to submit to chemical testing,
the Department in April 2014 issued the notice of suspension at issue and Licensee
appealed to common pleas.            After conducting a de novo hearing where the
Department presented the testimony of the two state troopers and Licensee testified
on his own behalf, common pleas denied the statutory appeal. Licensee’s appeal to
this Court followed.3


    2
       Although common pleas ultimately rejected Licensee’s testimony as not credible, we note
his acknowledgement that it was his signature on the form.
     3
       In order to sustain a suspension of a licensee’s operating privilege under Section 1547 of
the Vehicle Code, the Department must establish four criteria:
(Footnote continued on next page…)


                                               3
               Although Licensee stated his issues in the broadest possible terms, the
only cognizable issue before us is whether the Department met its burden of
establishing that he was placed under arrest for purposes of Section 1547 of the
Vehicle Code.4       An arrest for implied consent purposes has been defined as
follows: “[A]ny act that indicates an intention to take a person into custody and
subjects that person to the actual control and will of the arresting officer.”
Nornhold v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 59, 62 (Pa.
Cmwlth. 2005) [citing Glass v. Dep’t of Transp., Bureau of Traffic Safety, 333
A.2d 768, 770 (Pa. 1975)]. The question of whether a licensee has been placed

_____________________________
(continued…)
             1) licensee was arrested for driving while under the influence of
             alcohol or a controlled substance by a police officer who had
             reasonable grounds to believe that he was operating or in actual
             physical control of the movement of the vehicle while under the
             influence;
               2) licensee was requested to submit to chemical testing;
               3) licensee refused to submit to chemical testing; and
               4) licensee was specifically warned that refusal would result in the
               suspension of his operating privilege.
Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).
Once the Department meets its burden, the burden shifts to licensee to prove that his refusal was
not knowing or conscious or that he was physically unable to take the test. Id. The burden never
shifted in the present case.
     4
       According to Licensee’s Statement of Questions Involved, the issues before us are whether
the court committed an error of law in denying Licensee’s appeal and whether it committed an
abuse of discretion in denying his appeal. Licensee’s Brief at 4. This statement does not comply
with the letter or spirit of Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure, Pa.
R.A.P. 2116(a), which requires, in pertinent part, that the appellant “state concisely the issues to
be resolved, expressed in the terms and circumstances of the case but without unnecessary
detail.” To the extent, however, that the arrest element of the Department’s burden, arguably, is
“fairly suggested thereby” and to the extent that Licensee preserved any arguments in that regard
on appeal, we will proceed with our appellate review.



                                                 4
under arrest for implied consent purposes is a factual determination, rather than
one of law. Id. at 62 [citing Welcome v. Dep’t of Transp., Bureau of Driver
Licensing, 647 A.2d 971, 974 (Pa. Cmwlth. 1994)]. The test is “whether, under the
totality of the circumstances, the reasonable impression of the driver should have
been that he was subject to the officer’s custody and control at the time he refused
the chemical test.” Dep’t of Transp., Bureau of Driving Licensing v. Jones, 547
A.2d 877, 879 (Pa. Cmwlth. 1988).                 The legality of the underlying arrest is
immaterial in a civil operating privilege suspension proceeding. Stein v. Dep’t of
Transp., Bureau of Driver Licensing, 857 A.2d 719, 721 (Pa Cmwlth. 2004).
               In the present case, Licensee argues that common pleas erred in
determining that the Department established the arrest criterion via the trooper’s
recitation of the arrest language in the DL-26 form, which this Court has noted, in
and of itself, may not satisfy the arrest criterion.           See Woodring v. Dep’t of
Transp., Bureau of Driving Licensing, (Pa. Cmwlth., Nos. 871 and 872 C.D. 2013,
filed December 4, 2013), appeal denied, 99 A.3d 78 (Pa. 2014), slip op. at 11
(holding that this Court has not found that the simple reading of the arrest
statement in the DL-26 form is sufficient to constitute an arrest for implied consent
purposes and citing Welcome, 647 A.2d 971). Further, he maintains that Trooper
Kleeman’s statement to him after his refusal, that the charges would be coming in
the mail, was further indicia that he was not under arrest.                In that regard,
maintaining that an arrest must occur before the request to submit to testing, he
notes the absence of handcuffs, Miranda warnings,5 fingerprints, a trip to the police
station and a statement that he was under arrest for DUI. We disagree that the
Department did not establish the arrest criterion.

   5
       Miranda v. Arizona, 384 U.S. 436 (1966).



                                                  5
            As an initial matter, we emphasize that common pleas accepted the
troopers’ testimony that Trooper Pahira read the DL-26 form to Licensee verbatim.
Reinhart v. Dep’t of Transp., Bureau of Driving Licensing, 954 A.2d 761, 765-66
(Pa. Cmwlth. 2008) (credibility determinations are within the province of common
pleas and are improper questions for appellate review). The arrest portion of that
form provides: “You are under arrest for driving under the influence of alcohol or
a controlled substance in violation of Section 3802 of the Vehicle Code.” Record,
Item No. 9, December 11, 2014 Hearing Transcript, Commonwealth Exhibit C-1;
Reproduced Record (R.R.) at 86. Accordingly, we reject Licensee’s unsupported
assertion that there was no statement made to him that he was under arrest for DUI.
            Further, contrary to Licensee’s assertion, common pleas relied on
more than Trooper Pahira’s recitation of the DL-26 form in determining that the
Department met the arrest criterion.     Specifically, common pleas determined:
“[U]nder the totality of the circumstances, the reasonable impression of the
Licensee would have been that he was subject to the officer’s custody and control
at the time he refused the chemical test.” Common Pleas’ January 28, 2015
Opinion at 7. In support of its determination, common pleas noted that, “although
the troopers never physically restrained the Licensee they had him in their
possession at all times.” Id. at 6. In that regard, “Trooper Kleeman testified that
Licensee was with Trooper Pahira the whole time that they were at the scene.” Id.
The fact that Trooper Kleeman remained standing by Licensee at the side of the
patrol vehicle is also significant.    As we noted in Gresh v. Department of
Transportation, Bureau of Traffic Safety, 464 A.2d 619, 622 (Pa. Cmwlth. 1983),
“[T]he mere presence of the two policemen subjected the appellant to their
complete custody and control from the time they first approached him at the



                                         6
accident scene until they released him at his residence.” See also Moore v. Dep’t
of Transp., Bureau of Driver Licensing, (Pa. Cmwlth., No. 438 C.D. 2014, filed
March 9, 2015), appeal denied, ___ A.3d ___ (Pa. 2015), slip op. at 14 (where
police officer was standing with licensee right next to the police car, we agreed that
the officer’s actions “sufficiently indicated to licensee that he was in the custody
and control of the officer”).
             Moreover, the mere fact that Trooper Kleeman advised Licensee after
the refusal that the DUI and other summary offense paperwork related to the arrest
would be mailed to Licensee at a later date does not compromise the totality of the
circumstances inherent in the troopers’ custody and control of Licensee at the time
of his arrest and, indeed, throughout the whole incident. As we observed in
Woodring, the unreported case upon which Licensee somewhat ironically heavily
relies: “[I]n situations where a police officer reads the implied consent warnings
and also indicates plans to place a licensee formally under arrest in the future, this
Court has found that such facts were sufficient under the totality of circumstances
standard to satisfy DOT’s burden to prove an arrest occurred.” Id., slip op. at 10.
As previously noted, the legality of the underlying arrest is immaterial in a civil
operating privilege suspension proceeding. Stein, 857 A.2d at 721. This leads us
to Licensee’s challenge to the fact of the arrest on the ground that it lacked the
traditional indicia of an arrest, e.g. handcuffs and fingerprints.
             It is well established that the application of physical force is not
required for a valid arrest for implied consent purposes. Gresh, 464 A.2d at 622.
In the present case, there was no indication that Licensee failed to cooperate with
the troopers or attempted to flee the scene such that physical restraint would have
been warranted. In that regard, Trooper Kleeman’s credible testimony was that



                                           7
Licensee cooperated and answered all of their questions. Record, Item No. 9,
December 11, 2014 Hearing Transcript, Notes of Testimony (N.T.) at 6; R.R. at
16. Accordingly, where, as here, the licensee did not resist the warrantless arrest,
the arrest was not negated by the lack of necessity for physical restraint.
               In addition, the fact that the troopers did not transport Licensee to the
police station for processing is of no moment. In that regard, the troopers’ decision
to transport and release Licensee at his residence did not negate the troopers’
custody and control. Pursuant to Rule 519(B)(1) of the Pennsylvania Rules of
Criminal Procedure, Pa. R. Crim. P. 519(B)(1), which governs procedure in court
cases initiated by warrantless arrests, we have held that, under the appropriate
circumstances, releasing a licensee in this situation does not negate an arrest in
implied consent cases.6 See Gresh, 464 A.2d at 621 n.1 (police officer drove
licensee home and released him there) and Moore, slip op. at 15 n.10 (police
officer permitted licensee to walk home in the presence of a passenger).
               Finally, common pleas noted that the credible testimony of the
troopers established that “Licensee was read the DL-26 form which stated that he
was under arrest for DUI.” Id. at 7. Coupled with the troopers’ testimony that

    6
       The release provision of the rule governing procedure in warrantless arrests requires the
arresting officer to promptly release a defendant from custody, rather than taking him before the
issuing authority, when the following three conditions are met:
               (a) the most serious offense charged is a misdemeanor of the
               second degree or a misdemeanor of the first degree in cases arising
               under 75 Pa. C.S. § 3802;
               (b) the defendant poses no threat of immediate physical harm to
               any other person or to himself or herself; and
               (c) the arresting officer has reasonable grounds to believe that the
               defendant will appear as required.
Pa. R. Crim. P. 519(B)(1)(a) - (c).



                                                8
Licensee had a dialogue with them concerning whether he should submit to testing,
common pleas concluded that “Licensee understood the warnings and . . . knew he
was under arrest and was being asked to go to the hospital to submit to a blood
test.” Id. As the totality of circumstances indicates, this was Licensee’s second
DUI offense. Accordingly, we affirm.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Barton,                       :
                        Appellant      :
                                       :
                   v.                  :     No. 229 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER


           AND NOW, this 14th day of October, 2015, the order of the Court of
Common Pleas of Schuylkill County is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
