          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maurice Barnes                                    :
                                                  :
                v.                                :   No. 1300 C.D. 2015
                                                  :   Submitted: May 20, 2016
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing,                       :
                         Appellant                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                  FILED: September 8, 2016


                The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common
Pleas of Dauphin County (trial court) that sustained the statutory appeal of Maurice
Barnes (Barnes) from a one-year suspension of his operating privilege imposed by
PennDOT pursuant to 75 Pa. C.S. §1547(b)(1)(i).1 Upon review, we reverse.




      1
          75 Pa. C.S. §1547(b)(1)(i) provides, in pertinent part:

                If any person placed under arrest for a violation of section
                3802 [pertaining to driving under the influence of alcohol or
                controlled substance] 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, [PennDOT]
                shall suspend the operating privilege of the person as
                follows ….
                                       I. Background
              While on duty, Officer Patrick Ribec (Officer Ribec) of the Lower
Swatara Township Police Department, observed a silver Buick sedan fail to signal
while entering onto PA 283 North (283N). Notes of Testimony, 6/25/15 (N.T.), at
6; Reproduced Record (R.R.) at 16a. Officer Ribec conducted a traffic stop and
asked the driver, Barnes, for his license, registration and insurance card. Id. The
time was 0029 hours. N.T. at 7; R.R. at 17a. At that point, Officer Ribec did not
suspect Barnes was driving under the influence (DUI).2 N.T. at 14-15; R.R. at 18a-
19a.


              Officer Ribec ran a check for warrants for both Barnes and his
passenger, Jessica White (White). N.T. at 6; R.R. at 16a. Both occupants had
outstanding warrants. Id. Officer Ribec waited for the assistance of other officers
to aid in the arrest. Id. Officer Ribec arrested Barnes on the outstanding warrants.
N.T. at 9; R.R. at 17a.


              Once the other officers arrived, Officer Ribec asked Barnes to step out
of his vehicle.     The officer smelled a general odor of burnt marijuana about
Barnes’ person. N.T. at 6-7; R.R. at 16a-17a.


              Officer Ribec also assisted another officer in arresting the passenger,
White, on outstanding warrants. During this process, Officer Ribec asked the


       2
         Officer Ribec testified on cross-examination that Barnes did not swerve, speed or travel
at an inconsistent rate of speed. N.T. at 12-14; R.R. at 18a. Officer Ribec further testified
Barnes’ speech was normal (not slurred), he did not appear confused, and Officer Ribec initially
did not suspect Barnes was under the influence of anything. Id.



                                               2
passenger if she recently smoked marijuana, “and she informed me that her and
[Barnes] were at the Hollywood [a pay-by-the hour motel] and smoked marijuana
around, approximately 2330 hours.” N.T. at 7; R.R. at 17a.


             Prompted by this information, Officer Ribec returned to Barnes and
asked whether he had smoked marijuana. N.T. at 8; R.R. at 17a. Barnes indicated
he was a frequent marijuana user, and smoked earlier in the day, but he did not
smoke marijuana at the Hollywood Motel.             Id.   Thereafter, Officer Ribec
transported Barnes to the Dauphin County Judicial Center. Id. During transport,
Officer Barnes continued to smell the odor of burnt marijuana. Id.


             Consequently, at the Judicial Center, Officer Barnes conducted a field
sobriety test known as the horizontal gaze nystagmus (HGN). Id. The officer
asked that the test be performed despite knowing that there would be no positive
signs due to marijuana. Id. Officer Ribec asked for performance of the test to see
if Barnes could follow directions; it also afforded the officer a better opportunity to
look at Barnes’ eyes. Id.


             Nevertheless, in Officer Ribec’s view, Barnes showed signs of
possible impairment: bloodshot and glassy eyes and leaning against a wall. N.T. at
8-9; R.R. at 17a. After the officer told Barnes not to lean against the wall, he did
not do it again. N.T. at 9; R.R. at 17a. Accordingly, the officer asked Barnes to
submit to chemical testing.     Barnes refused.     N.T. at 9-11; R.R. at 17a-18a.
Thereafter, Officer Ribec read the entire Form DL-26, Chemical Testing Warnings,
verbatim. Id. Barnes continued to refuse chemical testing. Id.



                                          3
            PennDOT subsequently suspended Barnes’ operating privileges for
one year for refusing a police officer’s request to submit to chemical testing
pursuant to 75 Pa. C.S. §1547(b)(1)(i).


            Barnes appealed the suspension of his operating privileges. At the
end of a de novo hearing, the trial court sustained Barnes’ appeal and rescinded the
suspension of his operating privileges. The trial court specifically stated: “We
have a situation where the defendant is taken into custody pursuant to a warrant for
another offense disrelated to this.” N.T. at 25; R.R. at 21a. The trial court also
concluded that “the officer did not have enough indicia in this case, based upon
what he limitedly saw, to trigger placing him under arrest for driving under the
influence of marijuana, which then triggers the DL-26 situation.” Id.


            This appeal by PennDOT followed. After PennDOT filed a concise
statement of the errors complained of on appeal, the trial court filed a written
opinion explaining its reasoning.


            The trial court explained that the passenger’s statement to the officers
about smoking marijuana was ambiguous as to Barnes’ involvement. The trial
court also explained that Barnes could acquire the odor of burnt marijuana just by
being near another person smoking it. Relying on Stancavage v. Department of
Transportation, Bureau of Driver Licensing, 986 A.2d 895 (Pa. Cmwlth. 2009), the
trial court explained that bloodshot, glassy eyes could be an indication of
intoxication where at least one other obvious physical condition is present to
provide reasonable grounds, and the evidence did not convincingly establish such



                                          4
other obvious physical condition in this case. The trial court also commented on
the availability of other tests and alternative means to establish another obvious
physical condition, but Officer Ribec did not employ alternative sources. “As
such, there were no reliable physical indicators that [Barnes] was under the
influence of a controlled substance which would satisfy the reasonable grounds
standard.” Tr. Ct., Slip Op., 12/15/15, at 7.


                                          II. Issues
              On appeal,3 PennDOT raises factual and legal questions. Factually,
PennDOT asks whether Officer Ribec credibly testified that he smelled the odor of
burnt marijuana, and that both the passenger, White, and Barnes said Barnes
smoked marijuana earlier. Legally, PennDOT asks whether the trial court erred in
holding Officer Ribec did not have reasonable grounds to believe Barnes was
operating his vehicle while under the influence of a Schedule I controlled
substance in violation of 75 Pa. C.S. §3802.


                                       III. Discussion
              In order to support the one-year suspension of Barnes’s operating
privileges under 75 Pa. C.S. §1547(b)(1)(i), it was necessary for PennDOT to
prove Barnes: (1) was arrested for a violation of 75 Pa. C.S. §3802 by a police
officer who had reasonable grounds to believe Barnes was operating or was in
actual physical control of the movement of a vehicle while he was in violation of


       3
          Our review is limited to determining whether the findings of fact were supported by
substantial evidence, whether an error of law was committed or whether the trial court abused its
discretion. Cole v. Dep’t of Transp., Bureau of Driver Licensing, 909 A.2d 900 (Pa. Cmwlth.
2006).



                                               5
75 Pa. C.S. §3802; (2) was asked to submit to a chemical test; (3) refused to do so;
and, (4) was specifically warned a refusal would result in the suspension of his
operating or driving privilege and would result in his being subject to the penalties
set forth in 75 Pa. C.S. §3804(c) if he were later convicted of violating 75 Pa. C.S.
§3802(a). Banner v. Dep’t of Transp., Bureau of Driver Licensing, 737 A.2d 1203
(Pa. 1999); Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d
30 (Pa. Cmwlth. 2005).


               Here, Barnes was arrested initially on warrants for unrelated charges.
While held in custody on the warrants, Officer Ribec obtained more information
and observed Barnes. Then, he read the entire DL-26 form verbatim to Barnes.
This Court has held that reading the entire DL-26 form, including language that
“you are now under arrest for driving under the influence,” constitutes an arrest for
DUI. Maletic v. Dep’t of Transp., Bureau of Driver Licensing, 819 A.2d 640 (Pa.
Cmwlth. 2003) (en banc).


               There is no question that Barnes was the operator of a vehicle, that he
was asked to submit to a chemical test, that he refused, and that he was given the
required warnings.         Therefore, the only issue is whether Officer Ribec had
reasonable grounds to believe Barnes was operating the vehicle in violation of 75
Pa. C.S. §38024 when he requested the chemical test.

      4
          75 Pa. C.S. §3802(d)(1)(i) provides in pertinent part (with emphasis added):

               (d) Controlled substances.--An individual may not drive, operate
               or be in actual physical control of the movement of a vehicle under
               any of the following circumstances:

(Footnote continued on next page…)

                                                6
             “Reasonable grounds” exist when a person, in the position of Officer
Ribec, viewing the facts and circumstances as they appeared at the time of the
arrest, could conclude Barnes operated a vehicle while under the influence of a
controlled substance.     Banner, 737 A.2d at 1207.            The “reasonable grounds”
standard used to support a license suspension is a lesser standard than the probable
cause standard required for criminal prosecution. Id. In fact, the arresting officer
need not even be correct in his belief that the licensee was intoxicated. Dep’t of
Transp., Bureau of Traffic Safety v. Dreisbach, 363 A.2d 870 (Pa. Cmwlth. 1976).
The question of whether reasonable grounds exist is reviewed on a case by case
basis. Banner.


             PennDOT argues an arresting officer may rely on behavior indicating
the presence of a controlled substance such as marijuana in determining whether
the officer has reasonable grounds to request a test. Farnack v. Dep’t of Transp.,
Bureau of Driver Licensing, 29 A.3d 44 (Pa. Cmwlth. 2011). In Farnack, also a
controlled substance case, the arresting officer observed several indicia of
controlled substance impairment including, red, glassy and bloodshot eyes,
difficulty speaking, inability to focus or maintain eye contact and difficulty with
simple motor functions. We held these were sufficient indicia of intoxication to
warrant a request for a blood test.



(continued…)

                    (1) There is in the individual's blood any amount of a:

                           (i) Schedule I controlled substance, as defined in the
                           act of April 14, 1972 (P.L. 233, No. 64), known as
                           The Controlled Substance, Drug, Device and
                           Cosmetic Act.



                                              7
             PennDOT also discusses Commonwealth v. Jones, 121 A.3d 524 (Pa.
Super. 2015), appeal denied, 135 A.3d 584 (Pa. 2016). In that case, the police
officer stopped Jones’ vehicle because of a suspended registration.          Upon
approaching Jones, the officer immediately noticed a strong odor of burnt
marijuana emanating from Jones’ vehicle. Jones was requested to submit to a
blood test and agreed. The test results showed Jones had the active ingredient of
marijuana in his blood. Jones was convicted. On appeal, he argued the smell of
burnt marijuana alone did not provide the officer with probable cause to arrest him
for DUI.     The Superior Court rejected this argument and affirmed Jones’
conviction for driving under the influence of a controlled substance (marijuana) in
violation of 75 Pa. C.S. §3802(d)(1)(iii).


             PennDOT asserts it is not necessary for a police officer to observe a
person suspected of driving under the influence of a controlled substance to
manifest signs of impairment similar to those normally observed in a person who is
under the influence of alcohol. Rather, PennDOT argues, an arresting officer must
have sufficient information to form a reasonable belief that a driver has any
amount of a Schedule I controlled substance in his blood. Thus, the issue is
whether Officer Ribec had reasonable grounds to believe Barnes was operating his
vehicle with any amount of controlled substance in his blood.


             PennDOT asserts Officer Ribec had three sound reasons to believe a
blood test would reveal evidence of marijuana in Barnes’ blood: (1) the odor of
burnt marijuana emanating from Barnes when he was close to Officer Ribec; (2)
the passenger, White’s, statement that she and Barnes smoked marijuana about an



                                             8
hour earlier; and, (3) Barnes’ admission that he smoked marijuana earlier in the
day.    As such, PennDOT contends that, in light of the “totality of the
circumstances,” Banner controls. PennDOT argues the trial court erred as a matter
of law when it determined Officer Ribec did not have reasonable grounds to
believe Barnes operated his vehicle in violation of 75 Pa. C.S. §3802.


             In response, Barnes argues that reasonable grounds did not exist to
support a request for a chemical test of his blood because insufficient indicia of
intoxication existed to indicate that Barnes was under the influence of a controlled
substance.


             Barnes attempts to distinguish the Superior Court’s decision in Jones,
relied upon by PennDOT. Barnes asserts that Officer Ribec never testified the
odor was strong, he could not tell from where the odor was coming, he could not
tell if the odor was on Barnes’ clothing or his breath, and Barnes’ passenger,
White, admitted to Officer Ribec that she smoked marijuana in Barnes’ presence
an hour before the traffic stop.


             Barnes also attempts to distinguish Farnack. Unlike the defendant in
Farnack, Barnes did not display motor skill deficits, Barnes did not exhibit any
issues with balance or coordination, and Barnes was able to focus and follow
commands when Officer Ribec told Barnes to stop leaning against a wall. Thus,
Barnes argues, the trial court correctly determined Officer Ribec lacked sufficient
indicia of intoxication to warrant requesting a blood test on Barnes.




                                          9
             We conclude that Officer Ribec had reasonable grounds to request a
blood test of Barnes. The persistent odor of burnt marijuana, bloodshot, glassy
eyes, the statement of the passenger, White, and Barnes’ admissions to being a
frequent marijuana user and to smoking marijuana earlier in the day, are sufficient
to provide reasonable grounds to believe Barnes had some marijuana residue in his
blood when he was driving. While some of these four factors could be individually
explained in a non-culpable manner, viewed in totality, a reasonable person could
easily believe there was some amount of marijuana in Barnes’ blood.


             Nor does the Stancavage case, cited by the trial court, persuade us
otherwise. In Stancavage this Court stated: “Clearly, then, a showing of glassy
eyes alone is insufficient to support the conclusion that an officer had reasonable
grounds to believe an individual was intoxicated at a given point in time.”
Stancavage, 986 A.2d at 899. In this case, there were factors beyond glassy eyes
which support a determination that reasonable grounds existed to request a
chemical test.


             Accordingly, we reverse the trial court and reinstate the suspension of
Barnes’ operating privileges.




                                      ROBERT SIMPSON, Judge




                                        10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maurice Barnes                         :
                                       :
            v.                         :   No. 1300 C.D. 2015
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                         Appellant     :

                                     ORDER

            AND NOW, this 8th day of September, 2016, the order of the Court of
Common Pleas of Dauphin County is REVERSED.



                                      ROBERT SIMPSON, Judge
