          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Dillon,                          :
                                       :
                          Appellant    :
                                       :
                   v.                  : No. 1661 C.D. 2017
                                       : Submitted: April 20, 2018
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                      FILED: November 6, 2018



             James Dillon (Licensee) appeals from an order of the Court of Common
Pleas of Greene County (trial court) that denied his statutory appeal from a one-year
suspension of his operating privilege imposed by the Department of Transportation,
Bureau of Driver Licensing (Department), pursuant to Section 1547 of the Vehicle
Code, 75 Pa. C.S. §1547, known commonly as the Implied Consent Law, for
refusing to submit to a chemical test. Licensee asserts that the trial court erred in
determining that reasonable grounds existed for the traffic stop and the court has
candidly admitted to this error in its opinion filed pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure. Upon review, we affirm the trial court’s
order upholding the suspension.
                                          I. Background
                On July 18, 2016, the Department mailed Licensee an Official Notice
of Suspension of Driving Privilege for violating Section 1547(b) of the Vehicle
Code, 75 Pa. C.S. §1547(b),1 for refusing a chemical test on July 2, 2016. Licensee
timely appealed the suspension to the trial court and the trial court held a de novo
hearing. At the hearing, Pennsylvania State Trooper Kevin B. Kulka (Trooper) and
Licensee both testified.
                Trooper testified that, on July 2, 2016, he effected a traffic stop because
Licensee “was weaving in the roadway.”                     Original Record (O.R.), Notes of
Testimony (N.T.), 11/16/17, at 5. He did not recall observing any other vehicle code
violations before making the stop. N.T. at 5. Trooper approached Licensee’s vehicle
and asked for his “license, registration, and proof of insurance.” N.T. at 6. Trooper
testified Licensee had trouble finding his license in a stack of cards and he passed
over his license several times. N.T. at 6. Trooper made him aware that the license
was in the stack. N.T. at 6. Trooper asked Licensee if he had been drinking. N.T.
at 7. Licensee responded he had a few drinks with dinner. N.T. at 7. After refreshing
his memory by reading his arrest report, Trooper clarified that Licensee stated he
had a few beers with dinner. N.T. at 7. Trooper observed that Licensee had

      1
          This section provides:

                  (b) Suspension for refusal.—

                        (1) If any person placed under arrest for a violation of section
                3802 is requested to submit to chemical testing and refuses to do so,
                the testing shall not be conducted but upon notice by the police
                officer, the department shall suspend the operating privilege of the
                person as follows:

                        (i) Except as set forth in subparagraph (ii), for a period of
                12 months.
                                                   2
“bloodshot glassy eyes.” N.T. at 8. Trooper detected “a strong odor of alcoholic
beverages coming from his breath.” N.T. at 8. Trooper also noticed Licensee’s
speech was a “little bit slurred.” N.T. at 8.
             Trooper asked Licensee to submit to a preliminary breathalyzer test.
N.T. at 8. Licensee refused. N.T. at 9. Trooper placed Licensee under arrest for
driving under the influence (DUI). N.T. at 9. Trooper transported Licensee to the
State Police barracks for a breathalyzer test. N.T. at 9-10. Upon arriving at the
barracks, Trooper testified he read the implied consent warnings contained on the
DL-26 form to Licensee. N.T. at 11. After the warnings were read, Licensee refused
the Trooper’s request for a breathalyzer test. N.T. at 12-13.
             On cross-examination, Trooper acknowledged that he had previously
testified at a criminal suppression hearing in Licensee’s DUI criminal matter. N.T.
at 13. Trooper admitted that the same trial court hearing the license suspension
appeal had ruled that the traffic stop was unconstitutional in the prior criminal
suppression hearing. N.T. at 13-14. More particularly, Trooper agreed that the trial
court ruled that Trooper “had no right to stop [Licensee’s] car.” N.T. at 14. Trooper
could not recall whether Licensee refused to sign the DL-26 form. N.T. at 16.
             Licensee testified he was never shown the DL-26 form. N.T. at 23.
According to Licensee, the four warnings on the form were never read to him. N.T.
at 24. He testified that he was not told that anything would happen to him if he
refused to sign the DL-26 form. N.T. at 24. On cross-examination, Licensee
admitted that he refused to take a breathalyzer test because he felt that he was not
intoxicated and Trooper pulled him over for no reason. N.T. at 24. Licensee
admitted to having “had a couple of beers with dinner.” N.T. at 25.




                                           3
             The Department admitted the DL-26 form into evidence without
objection. N.T. at 12; O.R., Commonwealth Ex. No. 1. The DL-26 form indicates
that Licensee refused to acknowledge that the form was read to him.               O.R.,
Commonwealth Ex. No. 1.
             During closing arguments, counsel for Licensee referenced a dashboard
camera (dash-cam) video of the traffic stop that the trial court viewed in the prior
criminal suppression hearing. However, counsel for Licensee did not play the video
or offer it into evidence during the license suspension hearing.
             Based on the testimony and evidence presented, the trial court
determined that Licensee knowingly refused to submit to a breathalyzer test and
denied Licensee’s appeal. Trial Court Order, 10/16/17, at 1. Licensee appealed and,
at the trial court’s direction, filed a statement of errors complained of on appeal
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.
             In the statement, Licensee asserted that the trial court erred in upholding
the license suspension because the traffic stop was held to have been
unconstitutional. Consequently, the Department should not be permitted to benefit
from the unconstitutional action of the Trooper. Furthermore, Licensee claimed that
Trooper’s testimony about his car weaving was belied by the dash-cam video.
             In response, the trial court issued a Pa. R.A.P. 1925(a) opinion candidly
admitting that it committed an error of law. The trial court explained Licensee was
arrested and charged with DUI, which led to both criminal and civil consequences.
With regard to the criminal charges, the trial court held a suppression hearing, in
which the court determined that the Trooper lacked probable cause or reasonable
suspicion to make the stop and suppressed all evidence.            At the civil license
suspension hearing, the trial court considered whether Licensee refused to submit to


                                           4
chemical testing such that his driver’s license should be suspended. The trial court
determined that Licensee refused to submit to a breathalyzer and, as a result, was
subject to the license suspension. Upon further review, the trial court believes it
erred because it did not consider all the elements necessary to support a license
suspension based on a refusal to submit to chemical testing.
              The trial court opined that, in order to sustain the appeal of a license
suspension under the Implied Consent Law, the Department must prove four
elements. Trial Court Opinion, 1/4/2018, at 5 (citing Regula v. Department of
Transportation, Bureau of Driver Licensing, 146 A.3d 836, 842 (Pa. Cmwlth. 2016),
appeal denied, 169 A.3d 9 (Pa. 2017)). The first element the Department must prove
is that the licensee “was arrested for driving while under the influence by a police
officer who had reasonable grounds to believe that the licensee was operating a
vehicle while under the influence of alcohol or a controlled substance . . . .” Id.
(quoting Regula, 146 A.3d at 842 (emphasis in original)). The trial court concluded
that the first element was not met in this case.2 Id. at 5. At the license suspension
hearing, Trooper testified that he observed Licensee’s vehicle “weaving in the
roadway.” Id. at 8; see N.T. at 5. However, the trial court recalled that, at the
criminal suppression hearing, a video dash-cam, which recorded Trooper following
Licensee for seven miles, failed to establish any “reasonable grounds” for the traffic
stop and refuted Trooper’s testimony that Licensee was weaving. Trial Court
Opinion, at 7. Thus, the trial court asked this Court to rule based on the newly found
facts regarding the illegality of the stop or remand for a further determination. Id. at
8.


       2
         The trial court determined that the other three elements were proven by preponderance of
the evidence. Trial Court Opinion, at 6.
                                               5
                                             II. Issues
               In this appeal,3 Licensee argues that this Court should reverse the trial
court’s order upholding the license suspension based on the trial court’s admitted
error. Licensee maintains that the Department did not meet its burden of proving
reasonable grounds for the stop.             The dash-cam video, which the trial court
suppressed at the suppression hearing, belied Trooper’s testimony that Licensee was
weaving and refuted any reasonable suspicion or probable cause that the traffic stop
was warranted.
               The Department responds that the trial court erred as a matter of law in
relying upon its knowledge of the unadmitted dash-cam video in determining that
Trooper did not have reasonable grounds to effect a traffic stop. The trial court was
not permitted to take judicial notice of the dash-cam video or substitute its
knowledge of the contents of the unadmitted video for competent evidence. The
only evidence in the record with regard to the reason Trooper effected a traffic stop
is Trooper’s testimony.
               Furthermore, the Department contends that the trial court erred in
determining Trooper needed reasonable grounds to stop Licensee’s vehicle.
According to the Department, an officer may develop reasonable grounds to believe
that a licensee was DUI after a stop is made. The legality of a traffic stop is not at
issue in an appeal of a license suspension imposed for refusing chemical testing.




       3
         Our review in a license suspension case is “to determine if the factual findings of the trial
court are supported by competent evidence, and whether the trial court committed an error of law
or an abuse of discretion.” Regula, 146 A.3d at 839 n.3 (quoting Nornhold v. Department of
Transportation, Bureau of Driver Licensing, 881 A.2d 59, 62 n.4 (Pa. Cmwlth. 2005)).
                                                  6
                                  III. Discussion
             In Regula, this Court set forth the following four-prong test in order to
sustain the appeal of a license suspension under the Implied Consent Law:

             The Department must prove at a statutory appeal hearing
             that the licensee (1) was arrested for driving while under
             the influence by a police officer who had reasonable
             grounds to believe that the licensee was operating a
             vehicle while under the influence of alcohol or a controlled
             substance, (2) was asked to submit to a chemical test, (3)
             refused to do so, and (4) was warned that a refusal would
             result in a license suspension.

146 A.3d at 842 (quoting Zwibel v. Department of Transportation, Bureau of Driver
Licensing, 832 A.2d 599, 604 (Pa. Cmwlth. 2003) (emphasis in original)). With
regard to the first prong, we opined:

             An officer has reasonable grounds to believe an individual
             was operating a motor vehicle under the influence of
             alcohol “if a reasonable person in the position of a police
             officer, viewing the facts and circumstances as they
             appeared to the officer at the time, could conclude that the
             driver drove his car while under the influence of alcohol.”
             McCallum v. Commonwealth, [592 A.2d 820, 822 (Pa.
             Cmwlth. 1991)]. The issue of reasonable grounds is
             decided on a case-by-case basis, and an officer’s
             reasonable grounds are not rendered void if it is later
             discovered that the officer’s belief was erroneous. Id. The
             officer’s belief must only be objective in light of the
             surrounding circumstances. Moreover, the existence of
             reasonable alternative conclusions that may be made from
             the circumstances does not necessarily render the officer’s
             belief unreasonable. Id.

Id. at 842-43 (quoting Zwibel, 832 A.2d at 604).
             In Department of Transportation v. Wysocki, 535 A.2d 77, 79 (Pa.
1987), our Supreme Court delineated the differences between civil license
                                          7
suspension appeals and criminal DUI proceedings. In Wysocki, the licensee was
arrested at a DUI checkpoint and refused to consent to a breathalyzer test. Wysocki,
535 A.2d at 78. Based on his refusal, his license was suspended under the Implied
Consent Law. Id. In the criminal DUI proceedings, it was determined that the DUI
arrest was unlawful due to an illegal stop. Id. at 79. In the civil license suspension
appeal, the licensee argued that, because his DUI arrest was unlawful, the Fourth
Amendment exclusionary rule should apply to the civil license suspension matter.
Id. at 79. The Supreme Court rejected the contention holding:

             Properly viewed, the issue in the instant case . . . is the
             power of the Department . . . to suspend a driver’s license,
             which is conferred by the [I]mplied [C]onsent [L]aw. That
             authority is not conditioned on the validity of the arrest
             which gives rise to the request for a breathalyzer test . . . .
             Where the driver refuses to take a breathalyzer test, that
             refusal violates a condition for the continued privilege of
             operating a motor vehicle and is properly considered as a
             basis for suspension of that privilege. The driver’s guilt or
             innocence of a criminal offense is not at issue in the license
             suspension proceedings. The only fact necessary to the
             administrative determination is the driver’s refusal to
             comply with the breathalyzer request after being taken
             into custody.
Id. at 79-80 (emphasis added).
             This Court has consistently applied Wysocki in holding that the
lawfulness of a DUI arrest is irrelevant to a determination of whether the licensee’s
operating privilege was properly suspended under the Implied Consent Law. See
Regula, 146 A.3d at 846 (holding that it was not an abuse of discretion for a trial
court to exclude evidence of the licensee’s granted suppression motion and dismissal
of the underlying criminal DUI charges in the civil license suspension matter);
Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12,


                                           8
21 (Pa. Cmwlth. 2010) (“Our Courts have consistently held that a licensee may not
seek civil remedies, i.e., the reversal of a license suspension, where the licensee’s
rights as a criminal defendant have been compromised.”); Kachurak v. Department
of Transportation, Bureau of Driver Licensing, 913 A.2d 982, 986 (Pa. Cmwlth.
2006) (“The law is clear that the legality of the underlying DUI arrest is of no
moment” in a civil appeal of the license suspension and that “[i]t is irrelevant
whether the arresting officer had probable cause for executing the traffic stop”; “[a]n
illegal arrest is not an impediment to a license suspension for refusing a chemical
blood test.”); Witmer v. Department of Transportation, Bureau of Driver Licensing,
880 A.2d 716, 719 (Pa. Cmwlth. 2005), appeal denied, 920 A.2d 835 (Pa. 2007),
(holding that the sanctions imposed by the Implied Consent Law, i.e., a license
suspension, “are civil in nature and wholly unrelated to the consequences of a
criminal DUI prosecution”).
             The pointed issue here is whether Trooper had reasonable grounds to
believe that Licensee was operating his vehicle while under the influence. Regula,
146 A.3d at 842. Initially, the trial court sustained the license suspension having
adopted Trooper’s version of the facts that knowingly Licensee refused to submit to
a breathalyzer test. See Trial Court Order, at 1. But, in the Pa. R.A.P. 1925(a)
opinion that followed, the trial court opined that it erred because Trooper did not
have “reasonable grounds . . . for the initial stop.” Trial Court Opinion, at 7. In
reaching this conclusion, the trial court relied on its knowledge of the dash-cam
video, which it viewed in the criminal proceedings. Id. The dash-cam video was
not shown during the license suspension hearing or admitted into evidence.
According to the trial court, the video recorded Trooper following Licensee for
seven miles and refuted Trooper’s testimony that Licensee “was weaving in the


                                          9
roadway.” Id. at 8. Although the trial court determined that the video undermined
Trooper’s observations regarding weaving, the trial court did not reject or discredit
Trooper’s testimony in its entirety. In fact, the trial court clearly relied on Trooper’s
version of the facts in finding that the Department met the other elements of Regula.
See id. at 6.
                Setting aside the apparent problems with the trial court’s act of taking
“judicial notice”4 of suppressed evidence not of record in the license suspension
appeal and/or imparting its knowledge of the same, we believe the trial court’s
rationale for reversal is nevertheless flawed. Regula holds that the Department must
prove that the licensee “was arrested for driving while under the influence by a police
officer who had reasonable grounds to believe that the licensee was operating a
vehicle while under the influence of alcohol or a controlled substance.” Regula, 146
A.3d at 842. Regula does not hold that the “reasonable grounds” must be formed
prior to the traffic stop or require a lawful traffic stop as a prerequisite to a valid
license suspension. Id. at 844. As we explained:

                [A]lthough the fact that the initial stop may have been
                improper would not necessarily prevent a suspension of
                license where there was a subsequent refusal to submit to

       4
          Rule 201 of the Pennsylvania Rules of Evidence governs judicial notice of adjudicative
facts, providing:

                The court may judicially notice a fact that is not subject to
                reasonable dispute because it:

                        (1) is generally known within the trial court’s territorial
                jurisdiction; or

                      (2) can be accurately and readily determined from sources
                whose accuracy cannot reasonably be questioned.

Pa. R.E. 201(b).
                                                10
             a breathalyzer test, such a suspension will not be allowed
             if the officer’s request was not supported by reasonable
             grounds for the officer to have believed that the person
             was under the influence of alcohol.

Regula, 146 A.3d at 844 (quoting Wysocki, 535 A.2d 79–80) (emphasis added).
             Notably, the facts of Regula are similar to those presented here. In
Regula, the licensee in the criminal DUI proceeding succeeded in proving that the
traffic stop was illegal and having the charges dismissed. In the civil license
suspension proceeding, the licensee attempted to use evidence related to the criminal
proceedings, i.e., suppressed evidence from the illegal stop and the dismissal of the
criminal charges, to overturn the license suspension. The trial court excluded the
evidence based on Wysocki and its progeny concluding that such evidence is not
relevant to the civil license suspension matter. Regula, 146 A.3d at 844. On appeal,
we determined that the trial court did not abuse its discretion in this regard and
affirmed the trial court’s order upholding the license suspension. Id. at 846.
             Applying the foregoing analysis here, we conclude that the Department
presented substantial evidence that Trooper had reasonable grounds to believe that
Licensee was operating his vehicle while under the influence of alcohol. Although
Trooper may have lacked reasonable grounds to initiate the traffic stop, he formed
reasonable grounds that Licensee was driving while under the influence once the
stop was made. Trooper testified Licensee struggled to find his driver’s license in a
stack of cards; Licensee admitted to drinking a few beers with dinner; Licensee had
“bloodshot glassy eyes;” a strong odor of alcoholic beverages emanated from
Licensee’s breath; and Licensee’s speech was a “bit slurred.” N.T. at 8. Such
evidence constitutes reasonable grounds to believe that Licensee was operating his
vehicle while under the influence of alcohol.       See Regula, 146 A.3d at 844


                                         11
(reasonable grounds found where the arresting officer testified that the licensee had
a “strong odor of alcoholic beverage emanating from him,” admitted to consuming
three beers, and had “glassy bloodshot eyes and slurred speech”).


                                   IV. Conclusion
              Accordingly, we affirm the order of the trial court upholding the license
suspension.




                                        MICHAEL H. WOJCIK, Judge




                                          12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Dillon,                        :
                                     :
                        Appellant    :
                                     :
                  v.                 : No. 1661 C.D. 2017
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
Bureau of Driver Licensing           :


                                    ORDER


            AND NOW, this 6th day of November, 2018, the order of the Court of
Common Pleas of Greene County, dated October 16, 2017, is AFFIRMED.



                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
