         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric Hoffman                          :
                                      :
            v.                        : No. 176 C.D. 2018
                                      : Submitted: July 6, 2018
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing,           :
                  Appellant           :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                 FILED: August 6, 2018


            The Department of Transportation, Bureau of Driver Licensing
(PennDOT) appeals the order of the Court of Common Pleas of Dauphin County
(trial court) sustaining the appeal of Eric Hoffman (Hoffman) and rescinding
PennDOT’s one-year suspension of Hoffman’s operating privilege for failure to
submit to chemical testing following his arrest for driving under the influence
(DUI). For the reasons that follow, we affirm.


                                        I.
            On October 5, 2017, Officer Alex Wolf (Officer Wolf), a patrolman
with the Susquehanna Township Police Department, observed Hoffman asleep in
the driver’s seat of a minivan parked in a parking lot at approximately 4:30 a.m.
While the vehicle was not running, Hoffman had the keys in his hand, the vehicle
was parked sideways, Hoffman’s eyes were bloodshot, and there was a strong
smell of alcohol and an open beer can in the driver’s side compartment. Believing
that Hoffman had been in actual physical control of the movement of the vehicle
while under the influence of alcohol, Officer Wolf placed Hoffman under arrest
and transported him to Central Booking. Officer Wolf read PennDOT’s DL-26
form to Hoffman and asked him to provide a blood sample, which he refused.


             By official notice dated October 17, 2017, PennDOT notified
Hoffman that his operating privilege was being suspended for a period of one year
pursuant to Section 1547(b)(1)(i) of the Vehicle Code1 for his refusal to submit to
chemical testing. Hoffman appealed the suspension and a de novo hearing was
held before the trial court.


             Officer Wolf testified that he was conducting standard business
checks within his patrol area during the early morning hours of October 5, 2017.
He stated that he has become familiar with what is considered “normal” within his
patrol area through these checks and one of the businesses within his patrol area is
the Boost Mobile on Walnut Street. Officer Wolf testified that there is typically
one car parked in the Boost Mobile parking lot every night.



      1
         75 Pa.C.S. § 1547(b)(1)(i). That provision of the Code provides that an individual
placed under arrest for DUI who refuses to submit to chemical testing will have his or her
operating privilege suspended by PennDOT for a period of 12 months.




                                            2
            Officer Wolf testified that on the night in question, he drove by Boost
Mobile toward the beginning of his shift and noticed nothing unusual, but when he
drove by at 4:27 a.m., he noticed a second vehicle, a minivan, parked in the
parking lot, which drew his attention. The following exchange took place with
PennDOT’s counsel regarding the timing of Officer Wolf’s business checks:

            Q. Officer, let me stop you. Had you been by that area
            previous to that on that night?

            A. Yeah, I would have gone through early that night. It
            wouldn’t have been documented. I don’t know exactly
            what time or anything, but I go through the whole beat
            throughout my 12-hour shift. That was just the time that
            I go through and officially document it on my business
            checks report. [The minivan] wasn’t there earlier in the
            night –

            Q. I’m sorry?

            A. It was not there earlier in the night, but I couldn’t tell
            you – I couldn’t testify as to what time I would have
            gone through and noticed that it wasn’t there.

            Q. What time did your shi[f]t start that night?

            A. 7 p.m.

            Q. Is it your custom to do these business checks at any
            particular time in your shift?

            A. Yeah, I usually do them sometime between 1 a.m.
            and maybe like 5 a.m. It’s typically a slower period in
            the shift and that would be the time if there was going to
            be some kind of mischief happening that I would locate
            it.


(Reproduced Record (R.R.) at 41a.)


                                         3
            Officer Wolf testified that upon pulling into the parking lot, he noticed
that the minivan’s driver side back sliding door was wide open and the vehicle was
parked somewhat sideways, not straight within the painted white lines. Upon
approaching the minivan, he observed an Amstel Light beer bottle in a cup holder
in the back of the vehicle and Hoffman asleep in the driver’s seat with his head
hanging down towards his lap. The keys to the vehicle were in Hoffman’s hands
and an open Budweiser beer can was in the driver’s compartment just to
Hoffman’s right. When Officer Wolf banged on the window of the minivan,
Hoffman started yelling profanities, but once he opened his eyes, he became
cordial. Officer Wolf testified that Hoffman’s eyes were very bloodshot and when
he opened the driver’s door, a large waft of alcoholic beverage came in the
officer’s direction. Officer Wolf testified that Hoffman told him he had been
drinking with friends in Baltimore earlier that day, but specifically denied that he
was driving the vehicle.


            Officer Wolf testified that he then placed Hoffman under arrest for
DUI, explaining:

            The vehicle was parked somewhat sideways, not straight
            into the white painted lines, and through alcoholic
            beverage I could smell on Mr. Hoffman’s person, open
            containers in the vehicle, the bloodshot eyes, the
            crookedness of the vehicle, and the oddity of the vehicle
            being there at that time and everything, I had assumed
            that – I came to the conclusion due to the totality of the
            circumstances that Mr. Hoffman drove the vehicle
            shortly before I was there to that location.




                                         4
(R.R. at 41a.) Officer Wolf then transported Hoffman to Central Booking, read
Hoffman the DL-26 form and asked him to submit to a blood sample. Officer
Wolf testified that Hoffman did not deny that he had been drinking that night but
denied driving and said he did not feel the blood sample was necessary.


              On cross-examination, Officer Wolf acknowledged that the Boost
Mobile where he found Hoffman inside the minivan shares a parking lot with Card
Stadium Sports Collectible Store (Card Stadium). Officer Wolf was not aware that
Hoffman was a co-owner of Card Stadium, but testified that Hoffman told him
during the incident that he worked at Card Stadium and he lived approximately ten
minutes away. Officer Wolf testified that he did not put his hand on the minivan’s
hood to check to see if the vehicle was still warm, and he could not testify as to
when the minivan arrived in the parking lot that night.


              James A. Pascotti (Pascotti) testified on behalf of Hoffman that they
have been friends for years and on October 4, 2017, they attended a concert in
Baltimore. Pascotti testified that they left the concert at approximately 11:00 or
11:30 p.m., and that he drove Hoffman’s minivan back from the concert and
parked it in the Boost Mobile parking lot at approximately 12:30 or 1:00 a.m.
Pascotti testified that he remained in the parking lot for a little bit as Hoffman and
the other man they were with wanted to hang out, but Pascotti left shortly
thereafter.


              The trial court found that, given the totality of the circumstances,
Officer Wolf did not have reasonable grounds to believe that Hoffman was



                                          5
operating or in actual physical control of the movement of the vehicle while under
the influence of alcohol. Therefore, the trial court sustained Hoffman’s appeal and
rescinded PennDOT’s suspension of his operating privilege.                       This appeal
followed.2


                                              II.
              To sustain a suspension of a licensee’s operating privilege under
Section 1547 of the Vehicle Code for refusal to submit to chemical testing,

              [Penn]DOT must establish that the licensee: (1) was
              arrested for driving under the influence 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. Department of Transportation, Bureau of Driver Licensing, 737 A.2d
1203, 1206 (Pa. 1999) (citations omitted). Only the first element of this standard is
at issue in this appeal. PennDOT argues that the trial court erred as a matter of law
in determining that Officer Wolf did not have reasonable grounds and in
substituting its judgment for that of Officer Wolf. We disagree.




       2
          Our review in a license suspension case is limited to determining whether the findings
of fact are supported by competent evidence and whether the trial court committed an error of
law or an abuse of discretion. Gammer v. Department of Transportation, Bureau of Driver
Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010).



                                               6
             The standard of reasonable grounds to believe that a licensee was
operating or was in actual physical control of the movement of a vehicle while
under the influence is not very demanding, does not rise to the level of probable
cause required for a criminal prosecution, and it is not necessary for the officer to
be correct in his belief. See Banner, 737 A.2d at 1207; Gammer v. Department of
Transportation, Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth.
2010). “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 [licensee] was operating the vehicle while under the
influence of [alcohol].” Banner, 737 A.2d at 1207 (citing DiPaolo v. Department
of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Cmwlth. 1997)).
In other words, “[a]n officer’s belief that the licensee was driving will justify a
request to submit to chemical testing if one reasonable interpretation of the
circumstances supports the officer’s belief.” Helt v. Department of Transportation,
Bureau of Driver Licensing, 856 A.2d 263, 266 (Pa. Cmwlth. 2004) (citation
omitted).


             In determining if this standard has been met,

             the court must consider the totality of the circumstances,
             including the location of the vehicle, whether the engine
             was running, and whether there was other evidence
             indicating that the motorist had driven the vehicle.
             Banner, [] 737 A.2d at 1207. “[A]t the very least, there
             must be some objective evidence that the motorist
             exercised control over the movement of the vehicle at the
             time he was intoxicated.” Id. [] at 1207. It is immaterial
             whether alternative reasonable explanations for how the
             motorist came to be as he was found exist. [Department



                                         7
            of Transportation, Bureau of Driver Licensing v.] Bird,
            578 A.2d [1345,] 1348 [(Pa. Cmwlth. 1990)].


Gammer, 995 A.2d at 384. (Emphasis added.) See also Marnik v. Department of
Transportation, Bureau of Driver Licensing, 145 A.3d 208, 212 (Pa. Cmwlth.
2016) (noting requirement of objective evidence that the licensee exercised control
over the movement of the vehicle); Sestric v. Department of Transportation,
Bureau of Driver Licensing, 29 A.3d 141, 144 (Pa. Cmwlth. 2011) (holding that
there must be some other objective evidence establishing a time frame between the
licensee’s driving and his intoxication when an officer does not observe the
licensee behind the wheel).


            We agree with the trial court that, given the totality of the
circumstances, there is no objective evidence that Hoffman exercised control over
the movement of the vehicle while he was intoxicated. PennDOT stresses that
there is objective evidence because Officer Wolf found Hoffman passed out in the
driver’s seat of the minivan with the keys in his hand, two open beer containers
were in the vehicle, and it was parked crooked. While that gave Officer Wolf
reasonable grounds to surmise that Hoffman had been drinking, that did not give
him a basis to determine that he was operating the vehicle while drinking. To the
contrary, when Officer Wolf arrived, the vehicle was not running, its lights were
not on, the keys were not in the ignition and the back sliding door was open.
Officer Wolf admitted that he did not check the hood of the vehicle to see if it was
warm and could not testify as to when the vehicle arrived in the parking lot or how
it got there, only that it arrived sometime between approximately 1:00 a.m. and his
second business check at 4:27 a.m., a significantly large window of time. See, e.g.,


                                         8
Fierst v. Department of Transportation, Bureau of Driver Licensing, 539 A.2d
1389 (Pa. Cmwlth. 1988) (finding a reasonable officer could not conclude that
there were reasonable grounds for believing licensee was under the influence while
driving, given one-hour time lapse between accident and when licensee was found
drinking at his home).


            This case is similar to that of Banner, where an officer was dispatched
to check a suspicious vehicle parked along a roadway at approximately 4:20 a.m.
Upon arriving at the scene, the officer found the licensee sleeping in a reclined
position in the passenger seat of the vehicle. While the keys were in the ignition,
the engine was not running, the lights were off, and no alcohol was found in the
vehicle. When the officer tapped on the window, the licensee awakened and
reached for the keys in the ignition.        After viewing the totality of the
circumstances, our Supreme Court determined that the information available to the
officer fell short of the minimum evidence required to support a finding of
reasonable grounds. 737 A.2d at 1207. The Banner court noted that the only
evidence tending to show that the licensee had control over the vehicle’s
movement was its location parked alongside a road near a convenience store, and
this was too tenuous a connection to provide reasonable grounds for believing the
licensee was in actual physical control of the movement of the vehicle while
intoxicated. Id. at 1208. The court noted, “[a] line must be drawn to distinguish
circumstances where a motorist is driving his vehicle while under the influence of
alcohol, which the statute is intended to prevent, and circumstances where a
motorist is physically present in a motor vehicle after becoming intoxicated.” Id.
at 1208. But see Gammer, 995 A.2d at 384 (reasonable grounds existed where



                                        9
officer found licensee in the driver’s seat with the car running while parked in a
parking lot); Department of Transportation, Bureau of Driver Licensing v. Paige,
628 A.2d 917 (Pa. Cmwlth. 1993) (reasonable grounds existed where officer found
licensee slumped over steering wheel of his vehicle with the key in the ignition and
parking lights on). In this case, all PennDOT showed was that Officer Wolf had a
reasonable basis to believe that Hoffman was physically present in the motor
vehicle while intoxicated; it did not present objective evidence that Officer Wolfe
had a reasonable belief that he was driving the vehicle while intoxicated.


             Because there was no objective evidence here to demonstrate that
Hoffman exercised control over the movement of the vehicle at the time he was
intoxicated, the trial court did not substitute its judgment for that of Officer Wolf
and did not err in sustaining Hoffman’s appeal.


             Accordingly, the order of the trial court is affirmed.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eric Hoffman                        :
                                    :
             v.                     : No. 176 C.D. 2018
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing,         :
                  Appellant         :




                                 ORDER


             AND NOW, this 6th day of August, 2018, the order of the Court of
Common Pleas of Dauphin County in the above-captioned matter is hereby
affirmed.



                                    ___________________________________
                                    DAN PELLEGRINI, Senior Judge
