        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard McBeth                             :
                                           :
             v.                            :   No. 558 C.D. 2018
                                           :   Submitted: November 16, 2018
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
Bureau of Driver Licensing,                :
                         Appellant         :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: January 31, 2019

             The Department of Transportation, Bureau of Driver Licensing
(PennDOT) appeals from the order of the Westmoreland County Court of Common
Pleas (trial court) sustaining the statutory appeal of Richard McBeth (Licensee) from
the 18-month suspension of his operating privilege under 75 Pa. C.S. §1547(b)(1)(ii)
(Implied Consent Law). PennDOT suspended Licensee’s operating privilege based
on his reported refusal to submit to chemical testing after his arrest for driving under
the influence of alcohol or a controlled substance (DUI) pursuant to 75 Pa. C.S. §3802.
Significantly, in its opinion issued under Pa. R.A.P. 1925(a), the trial court requested
we reverse its post-hearing order. Accordingly, we reverse.


                                   I. Background
             On August 14, 2016, Pennsylvania State Police Trooper Thomas Dohey
(Arresting Officer) was dispatched to the scene of a two-vehicle accident. Licensee
was not involved in the accident; rather, he was a passenger in a personal vehicle a
member of the volunteer fire department (Driver) drove to the scene to assist other
first responders. Another Pennsylvania State Police Trooper investigating the accident,
Kimberly Zubovic (Trooper Zubovic), advised Arresting Officer that she planned to
take Licensee and Driver “into custody for DUI for responding to this accident
scene” after she completed her investigation. Reproduced Record (R.R.) at 27a.
She also informed Arresting Officer she observed Licensee, “who was highly
intoxicated,” in the driver’s seat moving the vehicle to a safer location away from
the accident scene. Id.


             Following Trooper Zubovic’s instructions, Arresting Officer found
Licensee asleep in the passenger seat of the vehicle. Arresting Officer “smell[ed] a
strong odor of alcoholic beverage emanating from [Licensee’s] person.” R.R. at 29a.
He also observed Licensee had slurred speech and bloodshot eyes. He then asked
Licensee to exit the vehicle and patted him down for weapons. Licensee was visibly
agitated throughout the process. When Arresting Officer asked him to submit to
field sobriety testing, Licensee replied, “F*ck you, I wasn’t driving.” R.R. at 30a.
Licensee did not perform any field sobriety tests, as he resisted arrest. Arresting
Officer then took Licensee into custody for suspicion of DUI.


             At the barracks, Arresting Officer read PennDOT’s Form DL-26A to
Licensee. He asked Licensee to submit to a breath test.           Although Licensee
submitted a breath sample, it was insufficient. Licensee did not submit a second
sample or sign the form. As a result, Arresting Officer recorded Licensee’s action
as a refusal to submit to testing.



                                          2
             Based on his refusal to perform the breath test, PennDOT suspended
Licensee’s operating privilege for 18 months. Licensee appealed to the trial court.


             At a hearing before the trial court, PennDOT submitted a certified copy
of Licensee’s driving record and presented the testimony of Arresting Officer and
the Pennsylvania State Police Trooper who administered the chemical breath test to
Licensee (Certified Tester). Trooper Zubovic did not testify. Licensee, who was
represented by counsel at that time, testified on his own behalf.


             Arresting Officer testified about his observations of Licensee that led
him to believe Licensee was intoxicated, including slurred speech and bloodshot
eyes. He noted that on waking, Licensee was belligerent and used vulgarity. When
Arresting Officer testified as to Trooper Zubovic’s observations that Licensee
moved the vehicle while intoxicated, Licensee’s counsel raised a hearsay objection.
After argument, the trial court overruled the objection, and it allowed Arresting
Officer’s testimony regarding what Trooper Zubovic told him about Licensee.


             Certified Tester testified that when he administered the breath test to
Licensee, he requested two breath samples. The first sample was insufficient
because Licensee did not give a consistent sample. Certified Tester offered Licensee
a couple of opportunities to provide a second sample, but Licensee refused.


             Licensee testified regarding the incident, acknowledging his agitation.
He testified he was not informed why he was placed under arrest for DUI when he
was not driving. He explained he had difficulty breathing and his heart was racing.



                                          3
He has a heart condition for which he has a mechanical valve. He claimed he
attempted to provide a sample, but he did not have sufficient breath to do so. He
was subsequently diagnosed by a pulmonologist with asthma. After he requested
medical assistance, Licensee was transported from the barracks in an ambulance.


                At the close of the hearing, the trial court questioned the whereabouts
of Trooper Zubovic, stating Arresting Officer only testified as to Trooper Zubovic’s
statement that she planned to arrest Licensee and Driver for DUI. It concluded
PennDOT did not establish sufficient facts to meet the reasonable grounds standard,
and it sustained Licensee’s appeal from the bench. PennDOT appealed to this Court.


                The trial court ordered PennDOT to file a concise statement of the errors
complained of on appeal under Pa. R.A.P. 1925(b). In its Rule 1925(b) Statement,
PennDOT asserted the trial court erred in concluding Arresting Officer lacked
reasonable grounds to believe Licensee operated a vehicle while he was intoxicated.


                In its Rule 1925(a) opinion, the trial court requested that this Court
reverse its decision. After summarizing Arresting Officer’s testimony as to Trooper
Zubovic’s observations of Licensee, it concluded “reasonable grounds had been
established upon which [Arresting Officer] could rely” in requesting Licensee to
submit to chemical testing. Tr. Ct., Slip Op., 5/24/18, at 1.


                PennDOT filed a brief asking this Court to agree with the trial court’s
Rule 1925(a) opinion. Licensee, who is unrepresented by counsel on appeal, did not
file a brief.



                                             4
                                        II. Discussion
              On appeal,1 PennDOT argues the trial court erred in sustaining
Licensee’s appeal because Trooper Zubovic’s statements supplied reasonable grounds
for Arresting Officer’s belief that Licensee operated a vehicle while under the influence.


              To sustain a suspension of a licensee’s operating privilege under the
Implied Consent Law, PennDOT must establish the licensee: (1) was arrested for
DUI by an officer with reasonable grounds to believe the licensee was operating a
vehicle while under the influence of alcohol or a controlled substance; (2) was
requested to submit to chemical testing; (3) refused to submit to chemical testing;
and (4) was warned by the officer that his license would be suspended if he refused to
submit to chemical testing. Jackson v. Dep’t of Transp., Bureau of Driver Licensing,
191 A.3d 931 (Pa. Cmwlth. 2018). Only the first prong is before us in this case.


              PennDOT bears the initial burden of proving that Arresting Officer had
reasonable grounds for believing that Licensee was operating a vehicle while under
the influence of alcohol. Trooper Zubovic’s statements are the only evidence
supporting the reasonableness of his belief.             Thus, we examine whether her
statements confer the requisite reasonable grounds.

              Section 1547(a) of the Vehicle Code states in pertinent part:

              (a) General rule.--Any person who drives, operates or is
              in actual physical control of the movement of a vehicle in
              this Commonwealth shall be deemed to have given
       1
        Our review is limited to determining whether the trial court committed an error of law or
abused its discretion, and whether necessary findings of fact were supported by substantial
evidence. Schlag v. Dep’t of Transp., Bureau of Driver Licensing, 963 A.2d 598 (Pa. Cmwlth.
2009).

                                               5
             consent to one or more chemical tests of breath, blood or
             urine for the purpose of determining the alcoholic content
             of blood or the presence of a controlled substance if a
             police officer has reasonable grounds to believe the person
             to have been driving, operating or in actual physical
             control of the movement of a vehicle [….]

75 Pa. C.S. §1547(a) (emphasis added). Whether reasonable grounds exist presents
a question of law the courts determine on a case-by-case basis. Banner v. Dep’t of
Transp., Bureau of Driver Licensing, 737 A.2d 1203 (Pa. 1999).


                            A. Out-of-Court Statements
             PennDOT argues the “sole reason” the trial court sustained Licensee’s
appeal was because Arresting Officer did not see Licensee operate the vehicle, and
instead relied on statements by Trooper Zubovic that Licensee drove a vehicle while
“highly intoxicated.” Appellant’s Br. at 14. It assigns error in that the trial court
initially did not consider Trooper Zubovic’s statements as conferring reasonable
grounds for Arresting Officer’s belief that Licensee was operating a vehicle while
under the influence of alcohol.


             Trooper Zubovic’s out-of-court statements are inadmissible hearsay if
offered to prove the truth of the matter asserted. Bonegre v. Workers’ Comp. Appeal
Bd. (Bertolini's), 863 A.2d 68 (Pa. Cmwlth. 2004). “Statements made to an arresting
officer, however, are admissible to show the officer’s state of mind and establish
whether he had reasonable grounds to believe the licensee operated a motor vehicle
while intoxicated.” Menosky v. Commonwealth, 550 A.2d 1372, 1374 (Pa. Cmwlth.
1988).




                                         6
             As to her statements, Arresting Officer testified: “Trooper Zubovic
advised me that after she was done with her accident investigation, that another
individual and [Licensee] would be taken into custody for DUI for responding to this
accident scene.” Tr. Ct. Hr’g, Notes of Testimony (N.T.), 8/20/18, at 7; R.R. at 27a.
He also testified: “When Trooper Zubovic arrived on scene, she informed me that
[Licensee] was in the driver’s seat moving the vehicle to a safer location for, like I
said because it was an accident response.” Id. (emphasis added). Also, Trooper
Zubovic told Arresting Officer that when she made contact with Licensee, he was
“highly intoxicated,” so she made him move to the passenger side of the vehicle. Id.


             PennDOT offered this testimony to show “the reasonable grounds that
[Arresting] [O]fficer had to form in order to suspect that [Licensee] was driving.”
R.R. at 26a. Trooper Zubovic’s statements are admissible for this purpose. Menosky.
Thus, her statements are properly part of the record.


                              B. Reasonable Grounds
             Next, we consider whether Trooper Zubovic’s out-of-court statements
supply reasonable grounds for Arresting Officer’s belief that Licensee was in actual
control of a vehicle while under the influence of alcohol.


             Reasonable grounds exist when an 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 alcohol. DiPaolo v. Dep’t of
Transp., Bureau of Driver Licensing, 700 A.2d 569 (Pa. Cmwlth. 1997). Simply




                                          7
because other inferences are possible does not render an arresting officer’s belief
unreasonable. Polinsky v. Dep’t of Transp., 569 A.2d 425 (Pa. Cmwlth. 1990).


             In determining whether an officer had reasonable grounds to believe
that a licensee was in “actual physical control of a vehicle, [we] must consider the
totality of the circumstances.” Banner, 737 A.2d at 1207. When the arresting officer
did not observe the licensee driving the vehicle, these circumstances include the
location of the vehicle, whether the engine was running, and whether other evidence
indicated that a licensee drove the vehicle while under the influence prior to the
arresting officer’s arrival. Id.


             Precedent establishes an officer need not see a licensee operating a
vehicle while under the influence in order for that officer to have reasonable grounds
to believe the licensee was operating a vehicle. Walkden v. Dep’t of Transp., Bureau
of Driver Licensing, 103 A.3d 432 (Pa. Cmwlth. 2014). PennDOT may establish
reasonable grounds through statements of a third party who witnessed the licensee
driving while under the influence of alcohol. Schlag v. Dep’t of Transp., Bureau of
Driver Licensing, 963 A.2d 598 (Pa. Cmwlth. 2009) (witness followed licensee
leaving hit-and-run from vehicle to residence and confronted licensee; reported to
officer he smelled alcohol on licensee’s breath, and his speech was very slurred).


             Relevant here, Arresting Officer testified that Trooper Zubovic told him
she saw Licensee move the vehicle when she arrived at the accident scene. At the
close of the hearing, the trial court characterized Arresting Officer’s testimony about
Trooper Zubovic’s statements as follows:



                                          8
             Well, here’s the problem … all that [Arresting Officer]
             testifies to having received information[-]wise from
             Trooper Zubovic is, I’m gonna arrest those two for DUI,
             you know, take care of it or whatever. I think that’s
             essentially what he’s testified to. That’s the only
             information he was provided probably in a very chaotic
             circumstance and scene here, but that’s my concern.

R.R. at 65a-66a (emphasis added).


             Initially, the trial court concluded that even with the lesser burden to
show reasonable grounds under the Implied Consent Law, PennDOT could not meet
its burden without Trooper Zubovic’s testimony. In so doing, and as the trial court
expressly acknowledged in its Rule 1925(a) opinion, the trial court erred. Stancavage
v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895 (Pa. Cmwlth. 2009).


             PennDOT did not need to present testimony of Trooper Zubovic to
establish Arresting Officer had reasonable grounds to believe Licensee operated a
vehicle under the influence of alcohol based on her statements. Schlag; McCullough
v. Dep’t of Transp., Bureau of Driver Licensing, 645 A.2d 378 (Pa. Cmwlth. 1994).
“It is well settled that the standard for reasonable grounds is not very demanding and
the police officer need not be correct in his belief that the motorist had been driving
while intoxicated.” Sisinni v. Dep’t of Transp., Bureau of Driver Licensing, 31 A.3d
1254, 1259 (Pa. Cmwlth. 2011) (emphasis added) (citations omitted).


             Significantly, the trial court’s Rule 1925(a) opinion recognized that
Trooper Zubovic’s statements consisted of more than her instructions to Arresting
Officer to handle the DUI she witnessed. In pertinent part, the trial court stated:



                                          9
             [Trooper] Zubovic informed [Arresting Officer] that she
             had observed [Licensee] and another individual arrive at
             the scene so that the [Driver] could assist first responders
             at the scene. [Licensee] had originally been the passenger
             in the vehicle, but was observed by [Trooper] Zubovic in
             the driver’s seat moving the vehicle to another location.
             She also related to [Arresting Officer] that she observed
             [Licensee] to be highly intoxicated. At that point,
             reasonable grounds had been established upon which
             [Arresting Officer] could rely in requesting that [Licensee]
             submit to a blood or breath test regarding his blood alcohol
             level.

Tr. Ct., Slip Op. at 1 (emphasis added). Trooper Zubovic’s statements that she
observed Licensee moving the vehicle while he was highly intoxicated conferred
reasonable grounds for Arresting Officer’s belief that Licensee was operating a
vehicle under the influence of alcohol.


             There is no dispute as to Licensee’s intoxication, and indeed, the trial
court stated as much on the record. R.R. at 66a (“let’s face it, you were drunk, you
never denied that”). Further, Arresting Officer observed Licensee’s belligerence,
bloodshot eyes and slurred speech, and smelled a strong odor of alcohol emanating
from Licensee during their encounter. R.R. at 29a. Because Trooper Zubovic’s
statements are sufficient bases for Arresting Officer’s belief that Licensee operated
the vehicle in which he was found while intoxicated, PennDOT established
reasonable grounds.


                                  III. Conclusion
             After PennDOT appealed its order, the trial court reviewed the
transcript and discovered Arresting Officer’s testimony supplied the requisite



                                          10
reasonable grounds. Based on the trial court’s acknowledged error, we reverse the
trial court’s order and reinstate the suspension of Licensee’s operating privilege.




                                       ROBERT SIMPSON, Judge




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard McBeth                         :
                                       :
            v.                         :   No. 558 C.D. 2018
                                       :
Commonwealth of Pennsylvania,          :
Department of Transportation,          :
Bureau of Driver Licensing,            :
                         Appellant     :


                                     ORDER

            AND NOW, this 31st day of January, 2019, the order of the
Westmoreland County Court of Common Pleas is REVERSED. The 18-month
suspension of Richard McBeth’s operating privilege is REINSTATED.




                                      ROBERT SIMPSON, Judge
