             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas J. Hoover,                             :
                        Appellant             :
                                              :
       v.                                     : No. 1527 C.D. 2018
                                              : SUBMITTED: April 5, 2019
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :


BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                      FILED: June 25, 2019

       Thomas J. Hoover (Licensee) appeals from the November 2, 2018 Order of
the Court of Common Pleas of Lawrence County (Trial Court) denying Licensee’s
statutory appeal from the one-year suspension of his operating privilege imposed by
the Department of Transportation, Bureau of Driver Licensing (DOT), under Section
1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), commonly known as
the Implied Consent Law.1 For the reasons that follow, we affirm the Trial Court’s
Order.


       1
           Section 1547(b)(1)(i) of the Implied Consent Law states:

       If any person placed under arrest for a violation of [S]ection 3802 [of the Vehicle
       Code (relating to driving under the influence (DUI))] 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, [DOT] shall suspend the operating privilege of the
       person . . . for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i).
                                     Background
      On the evening of November 22, 2017, Officer Alfred DeCarbo was on patrol
in Neshannock Township, Pennsylvania. At 9:53 p.m., Officer DeCarbo observed
Licensee’s vehicle traveling south on State Route 18 and crossing over the fog line
several times. Using a Visual Average Speed Computer and Recorder (VASCAR)
device, Officer DeCarbo clocked the vehicle traveling at 59.7 miles per hour in a 45
mile-per-hour zone.
      Officer DeCarbo activated his emergency lights and executed a traffic stop.
Licensee pulled his vehicle over to the berm but drove another one-quarter mile
before coming to a complete stop. Licensee was the driver and sole occupant of the
vehicle.
      Officer DeCarbo requested Licensee’s documentation. Licensee fumbled
with his driver’s license, and the officer had to ask again for his registration and
insurance cards. Officer DeCarbo detected a strong odor of alcohol, even though
Licensee was chewing gum. During the encounter, Officer DeCarbo noticed that
Licensee was avoiding eye contact with him, instead averting his gaze and looking
straight ahead at the windshield.
      Officer DeCarbo asked Licensee if he had been drinking, to which Licensee
replied, “No.”2 Officer DeCarbo asked Licensee to step out of the vehicle to conduct
field sobriety tests. As Licensee exited the vehicle, Officer DeCarbo noticed that
Licensee’s eyes were watery and his face was red. Officer DeCarbo performed the
horizontal-gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test.
Licensee was unable to successfully complete any of the tests.

      2
        At the hearing before the Trial Court, Licensee admitted that he had consumed four
“vodka and sodas” between 6:00 p.m. and 9:45 p.m. on the evening in question. Notes of
Testimony (N.T.), 11/2/18, at 45-46.


                                            2
      Officer DeCarbo asked Licensee to take a preliminary breath test at the scene.
Licensee made several attempts at performing the test. However, Officer DeCarbo
was able to obtain only a partial breath sample, which revealed a blood alcohol
content of 0.124. Officer DeCarbo informed Licensee that he was arresting him for
DUI and transporting him to the hospital for a blood test.
      Officer DeCarbo and Licensee arrived at the hospital at 10:16 p.m. Five
minutes later, Officer DeCarbo read the implied consent warnings on DOT’s DL-
26B Form to Licensee. Licensee signed the form, indicating that he had been warned
of the consequences of a chemical test refusal.
      A laboratory technician entered the room to obtain a blood sample, and
Licensee refused to submit to a blood test. Officer DeCarbo gave Licensee three
opportunities to provide a blood sample, but he refused each time. Licensee signed
the hospital’s refusal form at 10:29 p.m.
      After the refusals, Licensee was released to his wife, who was waiting in the
hospital lobby.   Officer DeCarbo then left the hospital.       Thereafter, Licensee
changed his mind and asked a hospital employee if he could take the blood test.
Another officer contacted Officer DeCarbo to inquire if Licensee could take the test.
At that point, Officer DeCarbo was already on patrol and declined to return to the
hospital to offer Licensee a fourth opportunity to consent to a blood test.
      DOT issued a Notice of Suspension to Licensee for his refusal to submit to
chemical testing under the Implied Consent Law. Licensee appealed to the Trial
Court, which held an evidentiary hearing on November 2, 2018. Both Officer
DeCarbo and Licensee testified at the hearing. Following the hearing, on November




                                            3
6, 2018, the Trial Court denied Licensee’s statutory appeal.3 Licensee now appeals
to this Court.4
                                              Issues
        (1) Did the Trial Court abuse its discretion in limiting Licensee’s cross-
examination of Officer DeCarbo regarding whether he had reasonable grounds to
stop Licensee’s vehicle?
        (2) Did the Trial Court err in concluding that Officer DeCarbo did not abuse
his discretion in not returning to the hospital from patrol to offer Licensee a fourth
opportunity to submit to a blood test?
                                            Analysis
        1. Limitation of Licensee’s Cross-Examination of Officer DeCarbo
        First, Licensee asserts that the Trial Court abused its discretion in limiting his
cross-examination of Officer DeCarbo regarding the reasonableness of the traffic
stop.       Specifically, Licensee contends that he should have been permitted to
extensively cross-examine Officer DeCarbo regarding the accuracy of the VASCAR
device in order to show that the officer lacked reasonable grounds to effectuate the
traffic stop. We disagree.
        To support the suspension of a licensee’s operating privilege under the
Implied Consent Law, DOT must prove that the licensee: (1) was arrested for DUI

        3
          Following Licensee’s appeal to this Court, he filed with the Trial Court an Application
for Stay, seeking to stay the one-year suspension of his operating privilege until resolution of the
appeal. After hearing argument, the Trial Court granted the Application for Stay on December 3,
2018.

        4
          In an appeal arising from a suspension of a licensee’s operating privilege, this Court’s
scope of review is limited to determining whether the Trial Court’s decision is supported by
substantial evidence, whether there has been an error of law, or whether the Trial Court manifestly
abused its discretion. Pappas v. Dep’t of Transp., Bureau of Driver Licensing, 669 A.2d 504, 507
n.4 (Pa. Cmwlth. 1996).


                                                 4
by an officer who had reasonable grounds to believe that the licensee was operating
a vehicle while under the influence of alcohol in violation of Section 3802 of the
Vehicle Code; (2) was asked to submit to a chemical test; (3) refused to do so; and
(4) was warned that his refusal might result in a license suspension and would result
in enhanced penalties if he were later convicted of DUI. Garlick v. Dep’t of Transp.,
Bureau of Driver Licensing, 176 A.3d 1030, 1035 (Pa. Cmwlth. 2018) (en banc).
Whether reasonable grounds existed is a question of law fully reviewable by this
Court. Walkden v. Dep’t of Transp., Bureau of Driver Licensing, 103 A.3d 432, 436
(Pa. Cmwlth. 2014).
      The crux of Licensee’s contention on appeal is that a police officer must have
reasonable grounds prior to stopping a vehicle in order to justify a request to submit
to chemical testing. Licensee claims that “DOT must present evidence supporting
the reasonable grounds for the traffic stop to support a license suspension.”
Licensee’s Br. at 32 (emphasis added); see N.T., 11/2/18, at 24-25. That is an
incorrect statement of the law.
      It is well settled that “[a]n officer may acquire reasonable grounds to believe
that a licensee was driving under the influence of alcohol at any time during the
course of interaction between the officer and the licensee.” Kachurak v. Dep’t of
Transp., Bureau of Driver Licensing, 913 A.2d 982, 985 (Pa. Cmwlth. 2006)
(emphasis in original); see Osselburn v. Dep’t of Transp., Bureau of Driver
Licensing, 970 A.2d 534, 538-39 (Pa. Cmwlth. 2009) (“An officer may acquire
reasonable grounds to believe the person was driving the vehicle while under the
influence of alcohol at any time during the traffic stop . . . .”) (emphasis added);
Magill v. Com., 522 A.2d 172, 173 (Pa. Cmwlth. 1987) (“[The licensee] confuses
reasonable grounds to believe that he was driving under the influence of alcohol with



                                          5
reasonable grounds to stop his vehicle. A police officer need only have the former
in order to require [the licensee] to submit to [a chemical] test.”) (emphasis added).
      Our Supreme Court has held that “[r]easonable 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 v. Dep’t of
Transp., Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999). “While there
is no set list of behaviors or conditions that a person must exhibit for an officer to
have reasonable grounds for making an arrest, case law has provided examples of
what has been accepted as reasonable grounds, such as: staggering, swaying, falling
down, belligerent or uncooperative behavior, slurred speech, and the odor of
alcohol.” Sisinni v. Dep’t of Transp., Bureau of Driver Licensing, 31 A.3d 1254,
1258 (Pa. Cmwlth. 2011); see Magill, 522 A.2d at 174 (finding that the arresting
officer had reasonable grounds where, after stopping the vehicle, the officer
observed that the licensee had difficulty walking, slurred his speech, could not
perform sobriety tests, and smelled of alcohol).
      Here, Officer DeCarbo testified that, during his interaction with Licensee, he
observed the following indicia of intoxication: (1) Licensee’s vehicle crossed the
fog line several times; (2) Licensee fumbled with his documentation; (3) a strong
odor of alcohol emanated from Licensee’s vehicle; (4) Licensee’s eyes were watery;
(5) his face was red; (6) he failed three field sobriety tests; and (7) the preliminary
breath test showed a blood alcohol content of 0.124. N.T., 11/2/18, at 4-5, 7-10.
The Trial Court expressly credited Officer DeCarbo’s testimony. Trial Ct. Op.,
12/21/18, at 2; see Millili v. Dep’t of Transp., Bureau of Driver Licensing, 745 A.2d
111, 113 (Pa. Cmwlth. 2000) (en banc) (in a license suspension proceeding,



                                          6
determinations as to the credibility and weight of the evidence are solely for the trial
court as factfinder). Viewing these objective signs of intoxication as a whole, we
conclude that Officer DeCarbo had reasonable grounds to believe that Licensee had
operated a vehicle while under the influence of alcohol.
      Licensee argues that he should have been permitted to cross-examine Officer
DeCarbo extensively about the accuracy of the VASCAR device, which indicated
that he was driving over the speed limit. However, whether Licensee actually
committed a traffic violation before the stop is irrelevant to the reasonable grounds
inquiry. “Both the Supreme Court and this Court consistently have held that . . . the
legality of the underlying traffic stop [is] not relevant to an appeal of a civil license
suspension matter based on a licensee’s refusal to submit to a chemical test in
accordance with the Implied Consent Law.” Regula v. Dep’t of Transp., Bureau of
Driver Licensing, 146 A.3d 836, 843 (Pa. Cmwlth. 2016) (emphasis added). A
police officer need not even observe a licensee operating a vehicle — let alone
observe the licensee commit a traffic violation — to have reasonable grounds to
arrest him for DUI. See Walkden, 103 A.3d at 437. “[F]or ‘reasonable grounds’ to
exist, the police officer obviously need not be correct in his belief that the motorist
had been driving while intoxicated. [The relevant inquiry is] the [officer’s] authority
to request a person to submit to a chemical test and not the admission into evidence
of the result of such a test.” Dep’t of Transp., Bureau of Traffic Safety v. Dreisbach,
363 A.2d 870, 872 (Pa. Cmwlth. 1976).
      As explained above, regardless of whether Licensee was speeding, Officer
DeCarbo’s personal observations of Licensee’s behavior and appearance during the
traffic stop amply supported his reasonable belief that Licensee had operated his
vehicle while under the influence of alcohol.



                                           7
      Licensee also argues that the Trial Court’s limitation of his cross-examination
of Officer DeCarbo violated his Sixth Amendment right to confront witnesses
against him. We reject this claim. “This Court has repeatedly ruled that the Sixth
Amendment right to confront and cross-examine witnesses does not apply to license
suspension proceedings, . . . as they are not penal in nature, but rather civil
proceedings.” Stenhach v. Dep’t of Transp., Bureau of Driver Licensing, 651 A.2d
218, 220 (Pa. Cmwlth. 1994); see Yi v. Dep’t of Transp., Bureau of Driver Licensing,
642 A.2d 625, 628 (Pa. Cmwlth. 1994).
      Therefore, we conclude that the Trial Court did not abuse its discretion in
limiting Licensee’s cross-examination of Officer DeCarbo regarding the accuracy of
the VASCAR device.
              2. Officer DeCarbo’s Failure to Return to Hospital
      Next, Licensee argues that the Trial Court erred in concluding that Officer
DeCarbo was not required to return to the hospital from patrol to allow Licensee to
submit to a blood test, after he had refused the officer’s three prior requests. We
disagree.
      It is well settled that “once a licensee refuses chemical testing, the refusal
cannot be vitiated by a later assent.” Vora v. Dep’t of Transp., Bureau of Driver
Licensing, 79 A.3d 743, 747 (Pa. Cmwlth. 2013). “Police officers are not required
to spend time either cajoling [a licensee] or waiting for him to change his mind.”
Dep’t of Transp., Bureau of Traffic Safety v. Ferrara, 493 A.2d 154, 156-57 (Pa.
Cmwlth. 1985). “[E]ven 15 or 20 minutes between an unequivocal refusal and a
subsequent change of heart is too long a delay.” Id. at 156.
      Licensee does not dispute that he refused Officer DeCarbo’s three requests for
a blood sample at the hospital, but claims that the officer should have offered him a



                                         8
fourth opportunity after he changed his mind. In a similar case where a licensee
changed her mind regarding consent to chemical testing, our Court explained:

             Here [the licensee] admits to refusing [to submit to a chemical
      test] after she was informed of the consequences; she did not vacillate.
      She changed her mind five minutes later. [The licensee] seeks to have
      us modify the rule that a subsequent consent does not vitiate a prior
      refusal to include a consideration of the length of time in which the
      change of mind occurred. This we have declined to do in the past,
      explaining that “police officers are not required to . . . spend time
      waiting to see if the [licensee] will ultimately change his [or her] mind.”
      Miller Appeal, . . . 470 A.2d 213, 214 ([Pa. Cmwlth.] 1984).

Cunningham v. Dep’t of Transp., 525 A.2d 9, 10 (Pa. Cmwlth. 1987) (emphasis in
original).
      We conclude that because Licensee unequivocally refused Officer DeCarbo’s
three prior requests for a blood test, after being informed of the consequences of
refusing, Officer DeCarbo had no obligation to return to the hospital from patrol to
offer him a fourth opportunity. The Trial Court determined:

             This court provided significant opportunity for development of a
      record with regard to the issue of [Licensee’s] late request to take the
      test. While Officer DeCarbo asked three times for consent to draw
      blood while present at the hospital, these additional opportunities did
      not obligate Officer DeCarbo to provide even further opportunities
      beyond those three, especially after the Officer had left the scene.
      [Licensee] testified he did not ask Officer DeCarbo while in the parking
      lot, even though he had the opportunity. Instead, his wife contacted a
      friend who knew another [o]fficer of the Neshannock Police
      Department. Officer DeCarbo was under no duty to allow [Licensee]
      to take a blood test after his initial refusal. Even if there was a duty to
      not be arbitrary and capricious, as [Licensee] argued at the hearing,
      [Officer DeCarbo’s] refusal to return to the hospital while he was on
      patrol was not arbitrary and capricious.

Trial Ct. Op., 12/21/18, at 7. We find no error in this determination.


                                          9
                            Conclusion
Accordingly, we affirm the Trial Court’s Order.




                               __________________________________
                               ELLEN CEISLER, Judge




                                 10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas J. Hoover,                 :
                    Appellant     :
                                  :
     v.                           : No. 1527 C.D. 2018
                                  :
Commonwealth of Pennsylvania,     :
Department of Transportation,     :
Bureau of Driver Licensing        :


                                ORDER


     AND NOW, this 25th day of June, 2019, the Order of the Court of Common
Pleas of Lawrence County, dated November 2, 2018, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
