              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dale King,                       :
                    Appellant           :
                                        :   No. 252 C.D. 2017
            v.                          :
                                        :   Submitted: June 23, 2017
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                     FILED: August 30, 2017


            Robert Dale King (Licensee) appeals from the February 1, 2017 order of
the Court of Common Pleas of Bedford County (trial court) denying his appeal from a
one-year suspension of his operating privilege imposed by the Department of
Transportation, Bureau of Driver Licensing (Bureau).


                       Background and Procedural History
            On May 27, 2016, Pennsylvania State Police Trooper Brandon Miller
(Trooper Miller) and his partner, Trooper Corey Ickes (Trooper Ickes), were
dispatched to a truck stop in Breezewood, Pennsylvania at approximately 2:09 a.m.
following a report of a male passed out on a sidewalk. Troopers Miller and Ickes
arrived at approximately 2:26 a.m. and found Licensee passed out and leaning against
the door of the truck stop. The Troopers had to shake him several times to wake him
up. Trooper Miller smelled a strong odor of alcohol on Licensee’s breath and person,
and noted that Licensee’s eyes were bloodshot and glassy. Trooper Miller asked
Licensee if he knew where he was. Licensee responded erroneously that he was “at
the Econo Lodge off the Donegal Exit of the Pennsylvania Turnpike”; however,
Trooper Miller informed him that he was actually in Breezewood. (Reproduced
Record “R.R.” at 10a-12a.)
             Trooper Miller asked Licensee how he arrived in Breezewood and
Licensee replied that he drove there. Trooper Miller then asked Licensee where his
vehicle was and Licensee responded that his black Chevy Silverado was in the
parking lot. However, after searching for the vehicle in the parking lot, Trooper Ickes
could not find it. (R.R. at 12a-13a.)
             Trooper Miller asked Licensee how much he had to drink and Licensee
responded that he had a couple of drinks at his house in Somerset, Pennsylvania.
Trooper Miller then asked Licensee if he had anything to drink since he arrived in
Breezewood and Licensee said no. Trooper Miller did not perform field sobriety tests
because Licensee appeared intoxicated and had difficulty standing upright. However,
Trooper Miller conducted a breath test, which revealed a 0.196% blood alcohol
content level. Trooper Miller then placed Licensee into custody. (R.R. at 14a-16a.)
             After placing Licensee in the rear of the patrol unit, the Troopers drove
around the nearby area to look for Licensee’s vehicle. They located a black Chevy
Silverado at a Quality Inn, which was approximately a quarter of a mile from the
truck stop where Licensee had passed out. The vehicle registration showed that it
belonged to Licensee. Trooper Ickes felt the hood of the vehicle and it was warm,




                                          2
indicating that the vehicle had been driven recently. The keys were neither on
Licensee’s person nor were they in or around the vehicle. (R.R. at 15a-27a.)
                The Troopers transported Licensee to the University of Pittsburgh
Medical Center at Bedford for chemical testing and read the implied consent
warnings from the DL-26 form to him. Licensee refused to submit to a blood test and
refused to sign the DL-26 form. Id.
                On July 22, 2016, the Bureau suspended Licensee’s operating privileges
due to a violation of section 1547 of the Vehicle Code, Chemical Test Refusal.1
(Trial court op. at 5.)
                Licensee appealed the suspension, and the trial court held a hearing on
December 1, 2016, at which only Trooper Miller testified. (R.R. at 4a.) Trooper
Miller testified as to the facts described above.
                On January 30, 2017, the trial court held that the Bureau met its burden
of proof under section 1547 of the Vehicle Code. (Trial court op. at 5.) The trial
court found that Trooper Miller had reasonable grounds to believe that Licensee was
“operating a vehicle under the influence of a controlled substance” on the basis that,

                Trooper [Miller] observed several indications that
                [Licensee] had imbibed alcohol, including the fact that he
                passed out upon a sidewalk at 2:00 a.m. [Licensee]
                admitted to drinking alcohol, stated that he began doing so
                at his home in Somerset, and—most importantly—told
                [Trooper Miller] that he had nothing to drink while at his
                current location in Breezewood, which is where his vehicle
                was last parked. Lastly, the troopers located [Licensee’s]
                vehicle nearby and at least one trooper observed that
                [Licensee’s] truck was unlocked and the hood was warm.



       1
           75 Pa.C.S. §1547.



                                             3
(Trial court op. at 4.) The trial court found that the totality of the circumstances were
sufficient to support a reasonable belief that Licensee drove while intoxicated and re-
instated the suspension of Licensee’s operating privileges. Id.
              On March 1, 2017, Licensee appealed to this Court.2


                                           Discussion
              On appeal, Licensee argues that Trooper Miller lacked the reasonable
grounds to believe that Licensee was operating or was in actual physical control of a
vehicle while under the influence of a controlled substance. (Brief for Appellant, at
10-13.) More specifically, Licensee argues that the trial court erred in “examining
the totality of the circumstances” and subsequently relying on “vague ‘admissions’ of
[Licensee] as paraphrased by the trooper who acknowledged the appellant was very
intoxicated and clearly confused as to his whereabouts.” Id. at 10.
              Licensee further contends that an objective time frame was required as
there were no witnesses to his driving behavior, and that such a time frame was not
established. Id. at 10, 13-18. Licensee argues that a lack of a time frame means that
it cannot be inferred that he actually operated a vehicle while under the influence,
noting that evidence was neither offered to account for the time frame between
Licensee’s travels and the Troopers’ arrival, nor to suggest what roads Licensee
travelled, when he arrived at the Quality Inn, or for how long he was passed out at the
truck stop. Id. Licensee contends that his actions “during the hours of the day/night
in question are pure guesswork and speculation,” and, as such, do not support a

       2
         Our scope of review is limited to determining whether the trial court committed an error of
law, or abused its discretion, or whether the findings of facts are supported by competent evidence.
Department of Transportation, Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 875 (Pa.
1989).



                                                 4
reasonable belief finding. Id. Licensee further argues that his “vague statement that
‘he drove to his location’ at some undetermined time” is inadequate for an officer to
reasonably believe that he drove under the influence of a controlled substance. Id.
             Licensee next contends that the factors the trial court relied on were
unreliable and speculative. More specifically, Licensee contends that the location he
admitted to driving towards is speculative given his confusion regarding where he
was since he believed he was at the Econo Lodge in Donegal rather than in
Breezewood, a difference of forty-three miles. Licensee further contends that it was
also speculative to assume that he drove while under the influence of alcohol based
on his statement that he “did not drink alcohol in Breezewood” without any
additional evidence. (Brief for Appellant, at 16-17.) Finally, Licensee contends that
the warm hood of his car is not a reliable factor as the incident occurred at the end of
May, and therefore should not be considered a sign of recent use.
             The Bureau responds that, when considering the totality of the
circumstances, Trooper Miller had reasonable grounds to believe that Licensee was
operating or was in actual physical control of the movement of a vehicle while he was
under the influence. (Brief for Appellee, at 8-9, 12-14.) The Bureau concurs with
Licensee’s argument that it is required to show some other objective evidence to
establish a time frame between a licensee’s arrest and the operation of a vehicle that
would support the arresting officer’s conclusion that the licensee was driving under
the influence. However, the Bureau contends that a time frame was established as the
trial court found that Licensee admitted to imbibing alcohol before leaving his house
in Somerset; that Licensee drove to the location where the Troopers found him at
2:26 a.m.; that Licensee stated that he had not consumed any additional alcoholic
beverages since arriving in Breezewood; and that the hood of his vehicle was still



                                           5
warm. The Bureau further contends that the exact time of Licensee’s drinking and
subsequent driving is not required to support a finding of reasonable grounds. Lastly,
the Bureau contends that Licensee’s argument that his statements about drinking
alcohol were speculative essentially requests this Court to reweigh the credibility of
evidence, and, as such, is outside the authority of this Court. (Brief for Appellee, at
12-19.)
               Section 1547 of the Vehicle Code permits the Bureau to suspend
operating privileges for one year and, in order to do so, the Bureau must prove four
elements: (1) was arrested by a police officer who had reasonable grounds to believe
that he was operating or was in actual physical control of the movement of a vehicle
while he was committing an offense under 75 Pa.C.S. §3802; (2) was asked to submit
to a chemical test; (3) refused to do so; and (4) was specifically warned that 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)(1).                Martinovic v. Department of
Transportation, Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa. Cmwlth. 2005).
Licensee’s sole challenge on appeal is to the first element, arguing that Trooper
Miller did not have reasonable grounds to believe that he was operating or was in
actual physical control of the movement of a vehicle while he was under the influence
of alcohol.3
               An officer has a reasonable belief when the officer, “viewing the facts
and circumstances as they appeared at the time, could have concluded that the

       3
         The Supreme Court has recently addressed the legality of blood tests in traffic stops in
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), finding that motorists may not be criminally
punished for refusing to submit to a blood test based on legally implied consent to submit to them.
However, this issue has not been raised here.



                                                6
motorist was operating the vehicle while under the influence of intoxicating liquor.”
Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d
1203, 1207 (Pa. 1999). Further, “[t]he standard of reasonable grounds to support a
license suspension does not rise to the level of probable cause required for a criminal
prosecution.” Id. This standard is determined by the totality of the circumstances,
which may include “the location of the vehicle, whether the engine was running,
whether there was evidence that the licensee had driven the vehicle before the arrival
of the police, the licensee’s general appearance, and the licensee’s behavior.” Id.
The question of reasonable grounds is reviewed on a case by case basis. Id.
             It is not necessary for an officer to see a licensee operating a vehicle
while under the influence in order for that officer to have reasonable grounds to
believe that a party was operating or in actual physical control of a vehicle. Walkden
v. Department of Transportation, Bureau of Driver Licensing, 103 A.3d 432, 436 (Pa.
Cmwlth. 2014). When an officer does not observe the licensee behind the wheel,
there must be a showing of some other objective evidence establishing a time frame
“between the licensee’s driving and the licensee’s intoxication.”             Sestric v.
Department of Transportation, Bureau of Driver Licensing, 29 A.3d 141, 144 (Pa.
Cmwlth. 2011). See also Demarchis v. Department of Transportation, Bureau of
Driver Licensing, 999 A.2d 639, 644 (Pa. Cmwlth. 2010); Stahr v. Department of
Transportation, Bureau of Driver Licensing, 969 A.2d 37, 41 (Pa. Cmwlth. 2009).
             Here, Licensee relies on these cases in support of his argument.
However, such reliance is misplaced. In Stahr, the arresting officer responded to an
accident scene, where the licensee had abandoned his vehicle following the accident.
969 A.2d at 39. The arresting officer found the licensee at his home, where the
licensee smelled of alcohol, had slurred speech, had an unsteady gait, and admitted to



                                          7
consuming alcohol.     Id.   This Court found that the arresting officer could not
reasonably conclude that the licensee was driving under the influence of alcohol
based only on these signs without establishing the time frame between the accident
and the observed intoxication. Id. at 41.
             In Sestric, this Court found that the officer could not reasonably
conclude that the licensee was driving under the influence because no evidence was
offered to connect the licensee’s drinking and driving, noting that the trial court
specifically found that the arresting officer was “incredible with respect to the amount
of time that passed during the incident.” 29 A.3d at 143-44.
             In Demarchis, the arresting officer located an abandoned vehicle
following a call of a suspected DUI driver, and then found the vehicle’s owner, the
licensee, at the licensee’s residence. 999 A.2d at 641. The officer noted that the
licensee not only “walked with a staggered gait, was unsteady, and had slurred his
words,” but also had a bracelet on his wrist indicating that he had been at a drinking
establishment. Id. The licensee stated that a friend drove his vehicle. Id. This Court
found that there was no objective evidence to support the officer’s suspicion that the
licensee was in control of his vehicle, noting that the licensee denied operating his
vehicle and there was “simply no way to infer or estimate the length of time between
the initial notice from the dispatch and the arrest based solely on Licensee’s apparent
attendance at some undetermined time at a nightclub, his alleged driving at an
undetermined time, and his abandoning his vehicle at yet another undetermined
time.” Id. at 644.
             Here, as the trial court found, the Bureau established the necessary time
frame.    The Troopers were dispatched to the truck stop in Breezewood at
approximately 2:09 a.m. and arrived at approximately 2:26 a.m.          In response to



                                            8
questions, Licensee said that he drove to Breezewood from Somerset, admitted that
he imbibed multiple alcoholic drinks at his home in Somerset that night, and stated
that he did not have any additional drinks since arriving in Breezewood. Following
his arrest, the Troopers located Licensee’s vehicle and the hood of the vehicle was
still warm to the touch. A warm hood of a vehicle supports an officer’s reasonable
belief that the vehicle was recently driven. Keane v. Department of Transportation,
561 A.2d 359, 361 (Pa. Cmwlth. 1989). Unlike in Stahr, Sestric, and Demarchis, the
warm hood of Licensee’s vehicle, combined with Licensee’s admission to driving
from his home in Somerset to Breezewood, indicates that he was operating or was in
actual physical control of the vehicle prior to the Troopers’ arrival at the truck stop
around 2:26 a.m.
              Further, Trooper Miller had reasonable grounds to believe that Licensee
was under the influence.         An officer may rely on personal experiences and
observations to determine when a person is intoxicated. Hasson v. Department of
Transportation, Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth.
2005). Here, Trooper Miller found Licensee asleep or passed out against the door of
the truck stop; Trooper Miller smelled a strong odor of alcohol on Licensee;
Licensee’s eyes were bloodshot and glassy; Licensee was confused about his
location; Licensee admitted to consuming alcohol at his house in Somerset; and
Licensee’s preliminary breath test indicated a reading of 0.196% blood alcohol
content.4

       4
        Commonly referred to as the “general impairment” provision at section 3802(a)(2) of the
Vehicle Code defining the crime of DUI as follows:
              An individual may not drive, operate or be in actual physical control
              of the movement of a vehicle after imbibing a sufficient amount of
              alcohol such that the alcohol concentration in the individual’s blood
              or breath is at least 0.08% but less than 0.10% within two hours after
(Footnote continued on next page…)

                                              9
              Therefore, Trooper Miller had reasonable grounds to believe that
Licensee was operating or was in actual physical control of the movement of a
vehicle while he was under the influence of alcohol.
              Accordingly, the order of the trial court is affirmed.




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge



Judge Cosgrove dissents.




(continued…)

              the individual has driven, operated or been in actual physical control
              of the movement of the vehicle.
75 Pa.C.S. §3802(a)(2).



                                                10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Dale King,                     :
                    Appellant         :
                                      :    No. 252 C.D. 2017
           v.                         :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                  ORDER


           AND NOW, this 30th day of August, 2017, the order of the Court of
Common Pleas of Bedford County, Pennsylvania is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
