               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Lephew,                             :
                    Appellant             :
                                          :    No. 846 C.D. 2015
             v.                           :
                                          :    Submitted: November 13, 2015
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
Bureau of Driver Licensing                :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge1
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                         FILED: February 9, 2016


             David Lephew (Licensee) appeals from the April 23, 2015 order of the
Court of Common Pleas of 39th Judicial District, Franklin County Branch (trial court),
which dismissed Licensee’s appeal from an eighteen-month suspension of his driving
privilege imposed by the Department of Transportation, Bureau of Driver Licensing
(DOT) for refusing to submit to chemical testing pursuant to section 1547(b)(1)(ii) of




      1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
the Vehicle Code (Code)2 following his arrest for violating section 3802 of the Code,
75 Pa.C.S. §3802 (driving under the influence of alcohol or controlled substance).


                            Facts and Procedural Background
               By notice dated December 24, 2014, DOT notified Licensee that his
driving privilege would be suspended for eighteen months for failure to submit to
chemical testing in violation of section 1547 of the Code. Licensee appealed to the
trial court, which held a de novo hearing on April 23, 2015.
               Washington Township Police Officer Steven Shannon (Officer Shannon)
testified to the following relevant facts. On December 14, 2014, Officer Shannon
was dispatched to the scene of a single vehicle accident. Officer Shannon was
advised that the accident may have resulted in injuries and requested assistance from
local police. When he arrived at the accident scene, Officer Shannon observed two
local officers standing at the driver’s side of a pickup truck that was at rest against a
large boulder approximately twenty to thirty feet from the edge of the road.
(Reproduced Record (R.R.) at 35-36).
               Officer Shannon observed that the vehicle had significant front-end
damage and that the occupant of the vehicle was sitting in the driver’s seat but did not
appear to have any visible injuries. Officer Shannon stood approximately three to
five feet from the vehicle and engaged the occupant, who advised Officer Shannon
that he was fine and asked what happened. Officer Shannon advised the occupant
that he had been in an accident and inquired whether he knew how it had happened.

       2
          75 Pa.C.S. §1547(b)(1)(ii). Section 1547(b)(1)(ii) provides that if any person placed under
arrest for driving under the influence (DUI) is requested to submit to a chemical test and refuses to
do so, DOT shall suspend the person’s operating privilege for a period of eighteen months if the
person has previously been sentenced for DUI.



                                                 2
The occupant advised Officer Shannon that he was not sure how the accident
occurred.
             Officer Shannon asked whether the occupant had his driver’s license
with him and the occupant advised him that he did. The occupant slowly started to
reach for his back pocket but was unable to do so. The occupant then reached toward
the passenger-side visor and retrieved a vehicle registration and insurance card.
Officer Shannon observed that the names on the documents were David and Sherry
Lephew and asked if the occupant was David Lephew. The occupant confirmed that
he was Licensee; however, he did not provide Officer Shannon with his driver’s
license. (R.R. at 36-38, 63, 65.)
             While Officer Shannon was speaking with Licensee, he observed that
Licensee’s eyes were bloodshot and glassy. Officer Shannon noticed that Licensee’s
speech was slow and slurred and that his movements were also slow.           Officer
Shannon asked Licensee whether he was able to exit the vehicle and Licensee
confirmed that he could. However, when Licensee attempted to exit the vehicle he
grimaced in pain. Officer Shannon told Licensee to remain in the vehicle if he was
injured and Licensee advised Officer Shannon that he was fine but that he suffered
from chronic back pain. Licensee continued to exit the vehicle and Officer Shannon
observed that Licensee still appeared to be in pain, at which point Officer Shannon
advised Licensee to remain in the vehicle and requested assistance from emergency
medical services (EMS). (R.R. at 38.)
             When EMS arrived, they helped Licensee exit the vehicle, placed him on
a stretcher, and loaded him into an ambulance. Officer Shannon began investigating
the accident scene for additional evidence and discovered three prescription bottles;
two in the center console and one on the floorboard. During his investigation, an



                                         3
EMS worker approached Officer Shannon and expressed concern that Licensee was
under the influence because his behavior was lethargic and his responses to questions
were concerning. Officer Shannon provided EMS with the three prescription bottles
and observed that one of the bottles was a prescription for sixty pills of Oxycodone,
was filled by Licensee in early November 2014, and was currently empty.3 EMS
advised Officer Shannon that the Oxycodone bottle should not have been empty.
(R.R. at 39-41, 58).
              Officer Shannon also interviewed two individuals who witnessed the
accident. The witnesses indicated that they had been driving behind Licensee for
approximately two to three miles and had observed Licensee operating the vehicle
erratically and in a concerning manner and stated that they had contacted Franklin
County Emergency Communications to communicate their concerns about Licensee’s
driving.   The ambulance subsequently transported Licensee to the hospital and
Officer Shannon followed thereafter. (R.R. at 41-42.)
              Officer Shannon spoke with Licensee at the hospital and inquired
whether he knew what had occurred. Licensee told Officer Shannon that he was
travelling to Pittsburgh on Interstate 81, but that was all he could remember; he could
not recall how the accident happened. During their conversation, Officer Shannon
noticed that Licensee’s speech was still slurred, his eyes were still bloodshot and
glassy, and his pupils were constricted; however, Officer Shannon acknowledged that
the hospital’s bright lights could cause Licensee’s pupils to constrict for a period of
time. Officer Shannon asked Licensee whether he was prescribed any medication
and Licensee confirmed that he was and noted that he had taken his prescription that

       3
         Officer Shannon testified that the other two bottles contained medication for high blood
pressure and would have no impairing affect. (R.R. at 55.)



                                               4
day as prescribed. Officer Shannon asked Licensee whether he had consumed any
alcoholic beverages and Licensee stated that he had not. However, for the first time,
Officer Shannon detected a slight odor of alcohol on Licensee’s breath. (R.R. at 42-
43, 63.)
              At that point, Officer Shannon believed that Licensee was under the
influence of a combination of drugs and alcohol and advised Licensee that he was in
custody via the DL-26 form and read the implied consent warnings to him verbatim.4

       4
          The DL-26 form contains the implied consent warnings required by section 1547 of the
Code. The form advises police officers to read the following warnings in their entirety to a
motorist:

              1. You are under arrest for driving under the influence of alcohol or a
              controlled substance in violation of Section 3802 of the Vehicle Code;

              2. I am requesting that you submit to a chemical test of blood (blood,
              breath, or urine. The arresting officer chooses the chemical test).

              3. If you refuse to submit to the chemical test your operating
              privilege will be suspended for at least 12 months. If you previously
              refused a chemical test or were previously convicted of driving under
              the influence, you’ll be suspended for up to 18 months. In addition, if
              you refuse to submit to the chemical test and you’re convicted of
              violating Section 3802(a)(1) (relating to impaired driving) of the
              Vehicle Code, then, because of your refusal, you will be subject to
              more severe penalties set forth in Section 3804(c) (relating to
              penalties) of the Vehicle Code. These are the same penalties that
              would be imposed if you were convicted of driving with the highest
              rate of alcohol, which include a minimum of 72 consecutive hours in
              jail and a minimum fine of $1,000.00, up to a maximum of five years
              in jail and a maximum fine of $10,000.00.

              4. You have no right to speak with an attorney or anyone else before
              deciding whether to submit to the testing. If you request to speak
              with an attorney or anyone else after being provided these warnings or
              you remain silent when asked to submit to chemical testing, you will
              have refused the test.
(Footnote continued on next page…)

                                                5
Licensee signed the form indicating that Officer Shannon had read the implied
consent warnings to him; however, he refused to submit to the chemical blood test.
(R.R. at 43-46.)
               Licensee testified that, on the night in question, he was travelling north
on Interstate 81, but noted that “everything that should be common to me,
recognizable to me, was not.” (R.R. at 67.) He stated that he was not feeling well,
that he exited the interstate, and that the last thing he remembered was driving toward
home or toward an emergency room, which were in the same direction. Licensee
confirmed that he had been prescribed Oxycodone, but he denied taking any
Oxycodone on the day of the accident.                 Licensee testified that his Oxycodone
prescription was filled on November 1, 2014, that his prescription contained sixty
pills, and that he was instructed to take two pills per day. He further testified that he
complied with the prescription instructions, that the prescription contained no refills,
and that the last day he consumed Oxycodone was on November 30, 2014.5 (R.R. at
67-69.)
               Licensee stated that EMS never asked him whether he was under the
influence of a controlled substance and the first time he was aware that he was


(continued…)


(R.R. at 44-45.)

       5
           At the hearing, Licensee offered into the record a prescription label that purported to
indicate when Licensee’s Oxycodone prescription was filled and, thus, the date the medication
would have been exhausted if Licensee had been taking the medication as prescribed. However, the
trial court concluded that the prescription label that was presented was not the same label that would
have been on the bottle that was recovered from the accident scene. Therefore, it was not clear to
the trial court what the Oxycodone prescription bottle that was recovered from the accident scene
actually indicated. (R.R. at 83.)



                                                  6
suspected of being under the influence was when Officer Shannon asked him at the
hospital whether he had consumed any drugs or alcohol. He testified that he does not
have an explanation why the accident occurred, but that he has been sober since
November 2008 and does not use drugs or drink alcohol. Licensee acknowledged
that he takes a fluid pill to regulate the fluid in his liver and a blood pressure pill to
maintain a steady blood pressure, but stated that those are the only medications he
consumes. (R.R. at 69-71.)
               Licensee further testified that he does not recall speaking to Officer
Shannon at the accident scene. He acknowledged that he did not comply with Officer
Shannon’s request to submit to a blood test, but stated that he does not recall Officer
Shannon reading the consequences of his failure to submit to testing. Licensee
testified that, although he refused Officer Shannon’s request to submit to a blood test,
a blood test was performed at the hospital and the results indicated that no drugs or
alcohol were present.6
               On April 23, 2015, the trial court issued an order dismissing Licensee’s
appeal. In its opinion, the trial court determined that Officer Shannon had reasonable
grounds to believe that Licensee had driven under the influence because Officer
Shannon observed Licensee’s slurred speech, bloodshot and glassy eyes, and
constricted pupils. The trial court also noted that Officer Shannon discovered an


       6
          Notwithstanding Licensee’s testimony, the record contains no evidence of a blood test
being performed. At the hearing, Licensee’s counsel confirmed that he had copies of the results of a
blood test that was performed at the hospital, but conceded that he did not offer the test results into
the record because it was his understanding that those results were irrelevant to the determination of
whether Officer Shannon had reasonable grounds to believe that Licensee was driving under the
influence. Licensee’s counsel offered to supplement the record to provide the test results but failed
to do so. (R.R. at 77-79.)




                                                  7
empty Oxycodone bottle in Licensee’s vehicle and found his testimony that he
detected alcohol on Licensee’s breath credible. Moreover, multiple witnesses advised
Officer Shannon that Licensee was driving erratically and EMS personnel expressed
concern that Licensee was under the influence.                  Accordingly, the trial court
concluded that a reasonable person in Officer Shannon’s position would have had
reasonable grounds to believe that Licensee had been driving under the influence.
                On appeal to this Court,7 Licensee asserts that the trial court erred
because Officer Shannon did not possess reasonable grounds to believe that Licensee
was driving under the influence. Specifically, Licensee argues that some indicators
of impairment could be attributed to the accident, not intoxication, and that Officer
Shannon did not consider all of the relevant facts and circumstances. Instead, he only
considered evidence that supported a finding of intoxication.


                                           Discussion
                To sustain a suspension of a licensee’s operating privilege for refusal to
submit to chemical testing under section 1547 of the Code, 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 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 the refusal would result in a license suspension.




       7
         Our scope of review is limited to determining whether the trial court’s necessary findings
are supported by substantial evidence and whether the trial court committed an error of law or
abused its discretion. Martinovic v. Department of Transportation, Bureau of Driver Licensing, 881
A.2d 30, 34 n.6 (Pa. Cmwlth. 2005).



                                                8
Farnack v. Department of Transportation, Bureau of Driver Licensing, 29 A.3d 44,
48 (Pa. Cmwlth. 2011). Reasonable grounds exist when a person, in the position of
the police officer, viewing the facts and circumstances as they appeared at the time of
arrest, could have concluded that the motorist was operating a vehicle while under the
influence of alcohol or controlled substances.           Banner v. Department of
Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999);
DiPaolo v. Department of Transportation, Bureau of Driver Licensing, 700 A.2d 569,
572 (Pa. Cmwlth. 1997). The test for determining whether reasonable grounds exist
is not very demanding and the officer need not be correct in his belief that the
licensee was under the influence. Farnack, 29 A.3d at 48.
            The question of whether reasonable grounds exist is a question of law
reviewable on a case by case basis. Banner, 737 A.2d at 1207; Farnack, 29 A.3d at
48. There is no set list of behaviors that must be present for reasonable grounds to
exist. Stancavage v. Department of Transportation, Bureau of Driver Licensing, 986
A.2d 895, 899 (Pa. Cmwlth. 2009). Our case law has identified factors that may
constitute reasonable grounds, such as: slurred speech; staggering; swaying; and an
odor of alcohol. Id. However, it does not follow that the absence of such factors
does not constitute reasonable grounds to believe that a licensee has operated a
vehicle while intoxicated. Farnack, 29 A.3d at 48.
            Licensee argues that this case is analogous to our decision in Schindler v.
Department of Transportation, Bureau of Driver Licensing, 976 A.2d 601 (Pa.
Cmwlth. 2009). In Schindler, this Court held that a police officer did not have
reasonable grounds to request a licensee to submit to chemical testing when the
licensee was involved in a single-vehicle accident where the vehicle rolled over. The
police officer discovered the licensee sitting on the side of the road, bleeding, and



                                          9
unable to walk. The officer testified that he arrested the licensee because he failed
three field sobriety tests and exhibited signs of intoxication; specifically, the licensee
had difficulty maintaining his balance, an unsteady gait, and slurred speech.
However, the licensee did not smell of alcohol or exhibit bloodshot or glassy eyes.
Additionally, the officer acknowledged that there was no physical evidence of alcohol
or controlled substances in the licensee’s vehicle and conceded on cross-examination
that the licensee had passed a breathalyzer test. The only indication of intoxication
was the licensee’s unsteady gait and difficulty maintaining his balance. We stated
that the officer is “not free to pick and choose among the facts and rely exclusively on
those that suggest DUI.” Id. at 605. We concluded that the officer ignored that the
reasonable explanation for the licensee’s unsteady gait and balance problem was the
accident itself and the evidence, taken as a whole, did not constitute reasonable
grounds to believe that the licensee was driving under the influence.
                Licensee asserts that the instant case is comparable to Schindler because
some signs of impairment could be attributed to the accident itself instead of
intoxication. Licensee argues that Officer Shannon did not consider all relevant facts
and circumstances and only considered evidence that supported a finding of
intoxication.
                The instant case is distinguishable from our decision in Schindler. Here,
as noted by the trial court in its opinion, Officer Shannon testified to several factors
that led to his belief that Licensee was driving under the influence of alcohol and/or a
controlled substance. Specifically, Officer Shannon testified that Licensee’s speech
was slurred, his eyes were glassy and bloodshot, and his pupils were constricted.
(R.R. at 38, 43.) Officer Shannon further testified that he discovered an empty
Oxycodone bottle in Licensee’s vehicle and “detected a slight smell of alcohol” on



                                            10
Licensee’s breath while questioning him at the hospital.8                   (R.R. at 40-41, 43.)
Moreover, Officer Shannon noted that EMS expressed concern that Licensee was
under the influence and multiple witnesses advised Officer Shannon that they had
observed Licensee driving erratically for a number of miles before the accident
occurred.9     (R.R. at 40-42.)        Based on this evidence, the trial court properly
determined that a reasonable person in Officer Shannon’s position would have
reasonable grounds to believe that Licensee had been driving under the influence.
               Accordingly, the trial court’s order is affirmed.




                                                  ______________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       8
          Licensee emphasizes the fact that Officer Shannon first detected a slight odor of alcohol on
Licensee’s breath at the hospital despite his extended interaction with Licensee at the accident
scene. An officer may acquire reasonable grounds to believe that a licensee was driving under the
influence at any time during the course of the interaction with the licensee. Department of
Transportation, Bureau of Traffic Safety v. Stewart, 527 A.2d 1119, 1120 (Pa. Cmwlth. 1987).
Moreover, it is well settled that the trial court maintains exclusive province over matters involving
the weight afforded to the evidence when performing de novo review. In re Penn-Delco School
District, 903 A.2d 600, 608 (Pa. Cmwlth. 2006).

       9
         A police officer’s reasonable grounds to believe that a motorist was driving under the
influence can be based on information received from third parties. Gasper v. Department of
Transportation, Bureau of Driver Licensing, 674 A.2d 1200, 1202 (Pa. Cmwlth. 1996).



                                                 11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Lephew,                          :
                  Appellant            :
                                       :    No. 846 C.D. 2015
            v.                         :
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing             :


                                    ORDER


            AND NOW, this 9th day of February, 2016, the April 23, 2015 order
of the Court of Common Pleas of 39th Judicial District, Franklin County Branch is
affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
