                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Marnik, Jr.                        :
                                               :
                      v.                       :
                                               :
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing,                    :   No. 949 C.D. 2015
                         Appellant             :   Submitted: February 5, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE COVEY                                        FILED: August 9, 2016

              The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driving Licensing (DOT) appeals from the Allegheny County Common
Pleas Court’s (trial court) May 28, 2015 order sustaining the appeal of Christopher
Marnik, Jr. (Marnik) from the 18-month suspension of his operating privileges
imposed pursuant to Section 1547 of the Vehicle Code (commonly referred to as the
Implied Consent Law) (Law).1 The issue for this Court’s review is whether the trial
court erred when it concluded that the arresting officer did not have reasonable
grounds to believe that Marnik was driving while under the influence of alcohol
(DUI). After review, we vacate and remand.




       1
         75 Pa.C.S. § 1547. The Law provides for a 12-month suspension of driving privileges for
refusal to submit to chemical testing, however, it increases to 18 months where, inter alia, an
individual has been previously sentenced for driving under the influence of alcohol or a controlled
substance pursuant to Section 3802 of the Vehicle Code, 75 Pa.C.S. § 3802. Marnik was convicted
of driving under the influence under Section 3802 of the Vehicle Code on September 23, 2005. His
driving privilege was suspended for one year. See Reproduced Record at 41a.
            By letter dated May 10, 2013, Marnik was notified that due to his refusal
to submit to a chemical test following an arrest for DUI on April 29, 2013, his vehicle
operating privileges would be suspended for 18 months beginning June 14, 2013. On
June 6, 2013, Marnik appealed to the trial court. The trial court held a hearing on
May 29, 2014.
            At the hearing, Robinson Township Police Department patrolman
Michael Gastgeb (Officer Gastgeb) testified that, on April 29, 2013 at approximately
1:20 a.m., he observed a disabled vehicle on the roadway with no occupant.
According to Officer Gastgeb, no one was around the vehicle at that time. Officer
Gastgeb stated that the vehicle had a bent tire and scratches on the passenger side
consistent with a guard rail impact. Officer Gastgeb explained that the accident had
occurred just prior to his arrival, since the vehicle had not been present when he
passed that location just fifteen minutes earlier. Officer Gastgeb further indicated
that while he was at the scene, Marnik approached, dressed in gym shorts and a t-
shirt. Marnik stumbled, had glassy eyes, slurred speech and smelled of alcohol.
Officer Gastgeb described his interaction with Marnik as follows:

            Q.    And how long after you came upon this disabled
            vehicle did [Marnik] show up?
            A.    It was within a few minutes.

            Q.     And what kind of balance did Mr. Marnik manifest at
            that time?
            A.    [Marnik] was stumbling. He had [a] general[ly] hard
            time keeping his balance walking towards me.
            Q.     And what happened after [Marnik] approached you?
            A.     I asked him if that was his vehicle.
            Q.     What was his answer?
            A.     He said, yes; it’s my grandfather’s vehicle.

                                           2
              Q.      What did you next say to him?
              A.    I asked if he had been driving the vehicle and he said
              yes. And I asked if he was in an accident and he said he did
              not know.
              Q.    He didn’t know. Okay. What happened next after
              you asked him if he had been in an accident and he
              responded that he didn’t know?
              A.     Yes. I asked if he had been drinking tonight and he
              said, yes; I was earlier. At that time, [Marnik] refused to
              communicate with me and the other officers.

Reproduced Record (R.R.) at 17a-18a. Officer Gastgeb testified that Marnik did not
possess car keys at that time. On cross-examination, Officer Gastgeb admitted he did
not recall whether the vehicle was running when he arrived and whether the keys
were in the ignition, but that if such were the case, he would have noted it in his
report, and it was not so noted. According to Officer Gastgeb, he never personally
observed Marnik present in the vehicle; however, he advised Marnik that he was
under arrest for DUI and transported him to Ohio Valley Hospital to have blood
drawn.2 Officer Gastgeb explained that after he read the implied consent warnings to
Marnik, Marnik refused to submit to the blood test.
              On February 24, 2015, the trial court sustained Marnik’s appeal. The
trial court reasoned:

              The objective evidence was that Officer Gastgeb observed a
              vehicle belonging to [Marnik’s] grandfather parked on the
              roadway with a bent tire and scratches on its passenger side.
              Officer Gastgeb could not recall if the keys were in the
              ignition or if the car was running, although he recalled that
              he had testified at the preliminary hearing that he would
              have made a note of it on his Police Report if the keys were
              in the ignition. While Officer Gastgeb was at the scene, he
              observed [Marnik] approaching the car. Officer Gastgeb
              observed that [Marnik] exhibited several signs of
       2
         Officer Gastgeb also stated that Marnik resisted being patted down and had to be restrained
by the officers. See R.R. at 19a.
                                                 3
               intoxication and [Marnik] told him that he had drinks
               earlier. Officer Gastgeb did not ask him when he had been
               drinking or where he had been. When [Marnik] met with
               the Officer, [he] had no car keys with him.
               Nowhere is there any evidence that [Marnik] had any
               intoxicating beverage when he drove his car. There is
               simply no objective evidence from which to conclude that
               [Marnik] was in actual physical control of his vehicle while
               intoxicated.

R.R. at 94a-95a.
               On March 18, 2015, DOT filed a motion for reconsideration. On March
26, 2015, DOT appealed to this Court. On March 19, 2015, the trial court granted
reconsideration.3      Thus, DOT withdrew its appeal.               On May 28, 2015, upon
reconsideration, the trial court again entered an order sustaining the appeal. DOT
appealed to this Court.4
               DOT contends that the trial court erred when it held that Officer Gastgeb
did not have reasonable grounds to believe that Marnik had driven the vehicle while
intoxicated, since Marnik appeared alone and intoxicated at the scene shortly after his
grandfather’s vehicle had been damaged, admitted that he had been drinking earlier in
the evening, admitted driving the vehicle, and did not explicitly deny being involved
in the accident. We agree.

               This Court has explained:
               Section 1547(b) of the Vehicle Code states that if a person
               arrested for violating Section 3802 of the Vehicle Code
               refuses to submit to a chemical test, [DOT] will suspend his
               operating privileges for 12 months, or for 18 months if the
               person has previously refused chemical testing or had a
               prior suspension of his operating privileges under Section

       3
         The order was not filed until April 9, 2015.
       4
         “Our review of a trial court’s action in an operating privilege suspension case is confined
to determining whether the trial court committed an error of law, or an abuse of discretion, and
whether the trial court’s findings of fact are supported by substantial evidence.” Hasson v. Dep’t of
Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1184 n.2 (Pa. Cmwlth. 2005).
                                                 4
            1547 of the Vehicle Code. 75 Pa.C.S. § 1547(b)(1). If the
            suspension is appealed, [DOT] must establish that the
            person:
                  (1) was arrested for driving under the influence
                  [(DUI)] 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. Dep’t of Transp., Bureau of Driver Licensing, . . .
            737 A.2d 1203, 1206 ([Pa.] 1999) (emphasis added).

Stahr v. Dep’t of Transp., Bureau of Driver Licensing, 969 A.2d 37, 39-40 (Pa.
Cmwlth. 2009).
            “In assessing whether [DOT] has met this burden, we consider the
totality of the circumstances and determine, as a matter of law, whether a person in
the position of the arresting officer could have reasonably reached this
conclusion.” Helt v. Dep’t of Transp., Bureau of Driver Licensing, 856 A.2d 263,
266 (Pa. Cmwlth. 2004) (emphasis added). “It is not necessary for an officer to
actually witness a licensee operating a vehicle in order to have reasonable
grounds to place him under arrest for [DUI].” Walkden v. Dep’t of Transp.,
Bureau of Driver Licensing, 103 A.3d 432, 437 (Pa. Cmwlth. 2014) (emphasis
added). However, “at 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.” Banner, 737 A.2d at 1207.

            ‘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, 737 A.2d at
            1207. To determine whether the officer had reasonable

                                          5
             grounds to conclude that the licensee was operating a
             vehicle under the influence, we must consider the totality of
             the circumstances, including such factors as the location of
             the vehicle; whether the engine was running; staggering,
             swaying or uncooperative behavior by the licensee; and the
             odor of alcohol.

Walkden, 103 A.3d at 436-37 (emphasis added). Further:

             Whether evidence is sufficient to constitute reasonable
             grounds for arrest is a question of law subject to this
             Court’s plenary review. The test for whether a police
             officer has reasonable grounds for believing a motorist
             is intoxicated is ‘not very demanding.’ Dep[’t] of
             Transp[.], Bureau of Traffic Safety v. Dreisbach, . . . 363
             A.2d 870, 872 ([Pa. Cmwlth.] 1976). It is not necessary for
             the arresting officer to prove that he was correct in his
             belief that a motorist was operating the vehicle while
             intoxicated. Even if later evidence proves the officer’s
             belief to be erroneous, this will not render the reasonable
             grounds void.
              [I]t is not the province of the appellate court to make new
             and different findings of fact. Determinations as to the
             credibility of witnesses and the weight assigned to the
             evidence are solely within the province of the factfinder.
             Conflicts in the evidence are for the trial court to resolve
             and are improper questions for appellate review.

Hasson v. Dep’t of Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1185-86
(Pa. Cmwlth. 2005) (citations omitted; emphasis added). Finally, “[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, 856 A.2d at 266 (emphasis added).

             [A] [c]ommon pleas [court] err[s] in substituting its
             judgment as to what inference should be drawn from
             the circumstances the officer observed; the test is whether
             the officer’s conclusion was reasonable as a matter of law,
             not whether common pleas might have concluded
             otherwise had [it] stood in the officer’s shoes.


                                           6
Id. (emphasis added).
             At the hearing, Officer Gastgeb explained he discovered the vehicle at
approximately 1:20 a.m. and that the vehicle was not present when he passed the
same location fifteen minutes earlier. Officer Gastgeb also testified that Marnik
admitted that he had been driving the vehicle, and when asked if he had been in an
accident, stated that he did not know.         Although the trial court mentioned this
testimony in its opinion, it did not, in its review of the objective evidence, explicitly
address or make a factual finding regarding Officer Gastgeb’s assertion that he had
not seen the vehicle at the location when he had been there fifteen minutes prior, or
Officer Gastgeb’s testimony that Marnik admitted he had driven the vehicle. See
R.R. at 94a-95a. Thus, Marnik maintains that the trial court must not have assigned
that testimony “any weight” or found Officer Gastgeb’s statements not credible.
Marnik Amended Br. at 5.
             It is unclear whether the trial court accepted as credible Officer
Gastgeb’s testimony that Marnik admitted that he drove the vehicle. Specifically, the
trial court stated, “[n]owhere is there any evidence that [Marnik] had any intoxicating
beverage when he drove his car.” R.R. at 95a (emphasis added). Thus, this Court
cannot determine whether the trial court accepted Officer Gastgeb’s testimony that
Marnik admitted he had driven the car at some time. We may not decide this case on
conjecture. And thus, we remand this matter for the trial court to clarify whether it
found credible Officer Gastgeb’s testimony that Marnik admitted driving the vehicle,
and that the vehicle was not present at the scene fifteen minutes prior to Officer
Gastgeb finding it.
             The trial court acknowledged in its discussion of objective evidence that
when Marnik appeared, he “exhibited several signs of intoxication and . . . told
[Officer Gastgeb] that he had drinks earlier.” R.R. at 94a. “Case law in DUI criminal
cases teaches that alcohol is not intoxicating until absorbed into the bloodstream and
                                           7
that absorption takes place thirty to ninety minutes after consumption.” Hasson, 866
A.2d at 1186. If the trial court found Officer Gastgeb’s testimony credible that the
accident must have happened in the fifteen minute period before he arrived, that
Marnik appeared visibly intoxicated only a few minutes after Officer Gastgeb’s
arrival, and Marnik admitted that he had driven the car and been drinking earlier that
evening, “one reasonable interpretation [(although certainly not the only possible
interpretation)] of the circumstances” is that Marnik had been drinking prior to the
incident, was intoxicated and driving the vehicle at the time the damage to the vehicle
occurred. Helt, 856 A.2d at 266.
                Marnik argues that the trial court correctly concluded that there was
insufficient evidence to establish reasonable grounds, and in support thereof, cites to
Department of Transportation, Bureau of Driver Licensing v. Mulholland, 527 A.2d
1123 (Pa. Cmwlth. 1987), and Fierst v. Commonwealth of Pennsylvania, 539 A.2d
1389 (Pa. Cmwlth. 1988). Marnik contends that those cases stand for the proposition
that “speculative evidence does not constitute reasonable grounds.”              Marnik
Amended Br. at 11.
                In Mulholland, the licensee, a driver involved in an accident with
another automobile, left the scene.          Approximately twenty-five minutes later,
accompanied by police, the driver of the other automobile found the licensee drinking
at a tavern and identified him as the other driver. The police observed that the
licensee appeared intoxicated and arrested him for driving under the influence. The
licensee refused a breathalyzer test. This Court affirmed the trial court’s order which
sustained the licensee’s appeal of his driver’s license suspension. In doing so, this
Court stated:

                This [twenty-five] minute delay seems to us to be too long
                for the officer to reasonably conclude that [the licensee] had
                in fact been driving his automobile under the influence of
                alcohol. As the trial court stated: ‘He could have gone in
                                              8
            and had a couple of shots, even if he were in the accident.
            He could have gone in and had a couple of shots to calm
            himself down, I don’t know, but the point is we’re left to
            speculate about it.’

Mulholland, 527 A.2d at 1124.
            In Fierst, witnesses at an accident location reported that the driver had
left, and gave police the license plate number of the licensee’s automobile.
Approximately one hour later a police officer arrived at the licensee’s house and saw
him with a bottle of beer in his hand. The licensee staggered and smelled of alcohol.
He was arrested for driving while intoxicated. This Court reversed the trial court’s
order and held “that under these facts and circumstances[,] a reasonable police officer
could not conclude that there were reasonable grounds for believing that while
driving, [the licensee] was under the influence of alcohol.” Fierst, 539 A.2d at 1390.
            Unlike Mulholland and Fierst, in the instant matter, there is no
speculation necessary regarding whether Marnik was intoxicated prior to the
accident. According to Officer Gastgeb, Marnik demonstrated multiple signs of
intoxication within twenty minutes of the accident. When asked if he was drinking
that night, Marnik admitted to Officer Gastgeb that he had been drinking earlier.
When asked if the vehicle was his, he responded affirmatively, and then stated it was
his grandfather’s. He also admitted that he had driven the vehicle, and did not know
if he had been in an accident. Officer Gastgeb also testified that there was no one
around the vehicle when he arrived at approximately 1:20 a.m.
            As Marnik points out, Officer Gastgeb did not see him driving the
vehicle. However, it was not necessary for DOT to prove Marnik did so. See
Walkden.     DOT was simply required to demonstrate that Officer Gastgeb’s
conclusion that Marnik had driven while intoxicated was reasonable given the totality
of the circumstances. Stated another way, DOT was only required to prove that “one



                                          9
reasonable interpretation of the circumstances” is, as Officer Gastgeb believed, that
Marnik drove the vehicle while intoxicated. Helt, 856 A.2d at 266.5
               For all of the above reasons, the trial court’s order is vacated and the
matter is remanded to the trial court to address the credibility of Officer Gastgeb’s
testimony, and render a new decision based on the relevant law as discussed herein.


                                             ___________________________
                                             ANNE E. COVEY, Judge




       5
          The Dissent, the trial court and Marnik focus on the fact that there is no evidence that the
vehicle was running or that the keys were in the ignition when Officer Gastgeb came upon the
vehicle. Cases that have focused specifically on such factors have done so where an individual is
found sleeping or unconscious in the vehicle and the primary question is whether the individual
exercised control over the movement of the vehicle while intoxicated. See, e.g., Banner; Vinansky
v. Dep’t of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995); Dep’t of
Transp., Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth. 1993); Polinsky v. Dep’t
of Transp., 569 A.2d 425 (Pa. Cmwlth. 1990).
         Here, the damaged vehicle was left on the roadway in the middle of the night. If the trial
court finds Officer Gastgeb’s testimony credible that the vehicle was not at the scene minutes
earlier, there would be no question that the vehicle had been operated. Thus, the question in this
case would be the identity of the operator and whether the operator was intoxicated at the time the
vehicle was operated. If Officer Gastgeb’s testimony is deemed credible, Officer Gastgeb could
have reasonably concluded that Marnik had operated the vehicle and was intoxicated while doing
so.
                                                 10
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christopher Marnik, Jr.                      :
                                             :
                   v.                        :
                                             :
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing,                  :   No. 949 C.D. 2015
                         Appellant           :


                                       ORDER

             AND NOW, this 9th day of August, 2016, the Allegheny County
Common Pleas Court’s (trial court) May 28, 2015 order is vacated and the matter is
remanded for the trial court to make findings of fact and render a new decision
consistent with this opinion.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Marnik, Jr.                  :
                                         : No. 949 C.D. 2015
                                         : Submitted: February 5, 2016
                   v.                    :
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :
                                         :
                           Appellant     :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                                  FILED: August 9, 2016


            I respectfully dissent. Because I believe that the trial court properly
concluded that DOT failed to establish that Officer Gastgeb had reasonable grounds
to believe that Marnik operated or controlled the vehicle while under the influence of
alcohol, I would affirm.


            The majority concludes that a remand is necessary because it is unclear
if the trial court credited Officer Gastgeb’s testimony that: (1) the vehicle was not
present at the scene 15 minutes before Officer Gastgeb first observed the vehicle and
(2) Marnik told Officer Gastgeb that he had driven the vehicle at some unspecified
time in the past. (Maj. Op. at 7-8.) However, even if the trial court had credited this
testimony, there is no objective evidence that Marnik operated or controlled the
vehicle while under the influence of alcohol.
             As part of its burden to sustain the suspension of a licensee’s operating
privilege for refusing to submit to a chemical test, “DOT must establish that the
licensee . . . 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.”
Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d
1203, 1206 (Pa. 1999) (emphasis added). In determining whether the “reasonable
grounds” test is met, “we must consider the totality of the circumstances.” Walkden
v. Department of Transportation, Bureau of Driver Licensing, 103 A.3d 432, 436-37
(Pa. Cmwlth. 2014). “[A]t the very least, there must be some objective evidence that
the [licensee] exercised control over the movement of the vehicle at the time he was
intoxicated.” Banner, 737 A.2d at 1207 (emphasis added).


             Here, the record does not indicate that anyone observed Marnik “drive
his [grandfather’s] vehicle or even sit behind the wheel.” (Trial Ct. Op. at 2.)
Additionally, Marnik did not have the vehicle’s keys with him when Officer Gastgeb
encountered Marnik. (Id. at 3.) Officer Gastgeb did not recall if the vehicle’s keys
were in the ignition or if the vehicle’s engine was running. (Id. at 2.) However,
Officer Gastgeb recalled that he had testified at the preliminary hearing that if the
keys had been in the ignition, he would have made a note of it in his police report.
(Id.; N.T., 5/29/14, at 17.) The trial court found that “Officer Gastgeb never asked
[Marnik] when he had last driven the vehicle,” (Trial Ct. Op. at 2 (emphasis added)),
when he had been drinking, or where he had been. (Id. at 4.) The trial court found
that the record lacks any objective evidence that Marnik had recently operated or
controlled the vehicle that night. (Id. at 5.) Therefore, I submit that it is immaterial



                                       RSF - 2 -
whether the trial court credited Officer Gastgeb’s testimony that someone had
recently driven the vehicle to the scene and that Marnik had admitted to driving the
vehicle at some unspecified time in the past.


             For these reasons, I would affirm the trial court.




                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge




                                       RSF - 3 -
