              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason J. Hartmann                                 :
                                                  :
                 v.                               :    No. 690 C.D. 2019
                                                  :    Submitted: December 6, 2019
Commonwealth of Pennsylvania,                     :
Department of Transportation,                     :
Bureau of Driver Licensing,                       :
                         Appellant                :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                                FILED: April 8, 2020
                 The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common
Pleas of Mercer County (trial court) that sustained the appeal of Jason J. Hartmann
(Licensee) of a one-year suspension of his operating privilege for refusing to submit
to chemical testing in accordance with Section 1547(b)(1)(i) of the Vehicle Code,
75 Pa. C.S. §1547(b)(1)(i).1 The trial court held the arresting officer did not have
reasonable grounds to believe Licensee had been operating his vehicle under the

1
    It provides:
          (1) If any person placed under arrest for a violation of section 3802 [prohibiting
          driving under the influence of alcohol or a controlled substances] 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, the department shall suspend the operating
          privilege of the person as follows:
                  (i) Except as set forth in subparagraph (ii) [relating to prior
                  offenses], for a period of 12 months.
75 Pa. C.S. §1547(b)(1)(i). Section 1547 of the Vehicle Code is commonly referred to as the
Implied Consent Law.
influence of alcohol and, thus, sustained Licensee’s appeal. Concluding that the
evidence established reasonable grounds for Licensee’s arrest, we reverse.
              On January 7, 2019, PennDOT notified Licensee that his operating
privilege would be suspended for one year because he refused to submit to a
chemical test at the time of his arrest for driving under the influence of alcohol
(DUI).2 Licensee appealed, and a hearing was conducted by the trial court. Licensee
was present and represented by counsel. The sole witness, Pennsylvania State Police
Trooper Noah Neigh, was presented by PennDOT.
              Trooper Neigh testified that on December 19, 2018, at approximately
11:35 p.m., he and his partner, Trooper Michael Brenot, were on routine patrol when
they found an unoccupied vehicle in a ditch on the side of the road. Trooper Neigh
checked the vehicle’s registration and learned that Licensee was the owner. Because
the closest building to the vehicle was a bar, the two troopers went inside to look for
the driver of the abandoned vehicle. The bartender stated that Licensee had been
drinking alcohol at the bar, unaccompanied, and had left about 15 to 20 minutes
before the troopers arrived.
              When the troopers returned to Licensee’s vehicle, they found that
Licensee’s father had arrived at the scene with a truck to tow the vehicle out of the
ditch. Licensee’s father stated that Licensee’s mother had been driving the vehicle
when a deer ran in front of her. Swerving to avoid it, she drove the vehicle into the

2
  Section 3802(a)(1) of the Vehicle Code states:
         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
         individual is rendered incapable of safely driving, operating or being in actual
         physical control of the movement of the vehicle.
75 Pa. C.S. §3802(a)(1). A test of an individual’s blood or breath showing an alcohol content of
at least 0.08%, taken within two hours of operation of a vehicle, establishes impairment. 75 Pa.
C.S. §3802(a)(2).
                                               2
ditch. When Trooper Neigh expressed skepticism about this story, Licensee’s father
conceded that Licensee had been the one driving and that he had “been drinking.”
Notes of Testimony, 5/3/2019, at 10 (N.T. __); Reproduced Record at 37a (R.R. __).
              The troopers drove to Licensee’s residence, arriving shortly after
midnight. Licensee was not there, and his parents suggested that Licensee may have
gone outside to walk. The troopers searched and found Licensee in the woods behind
the house. Licensee was disheveled and barefoot; unsteady on his feet; and smelled
of alcohol.
              After assisting Licensee back to his house and getting him shoes,
Trooper Neigh had Licensee undergo field sobriety tests, which Licensee failed. A
breath test showed a blood alcohol level of 0.201%. Licensee was arrested for
suspicion of DUI. Trooper Neigh read Licensee the Implied Consent Law warnings,
and Licensee agreed to submit to a blood draw. The troopers transported him to a
medical center, arriving at approximately 1:00 a.m. At the medical center, Licensee
withdrew his consent to the blood draw.
              The troopers then transported Licensee to the police barracks. Trooper
Neigh asked Licensee if “he was the one driving.” N.T. 17; R.R. 44a. Licensee
stated that his mother had been driving and “she hit black ice and she crashed.” N.T.
17; R.R. 44a. Trooper Neigh testified that Licensee’s mother had told him that she
had not driven the vehicle that evening. When Licensee’s parents arrived at the
police barracks, Trooper Neigh again put this question to Licensee’s mother and,
again, she denied driving the vehicle that evening.
              The trial court concluded that the evidence did not establish reasonable
grounds for Licensee’s arrest. The trial court explained this conclusion as follows:
              Trooper [Neigh], you didn’t do anything wrong.


                                          3
              [Licensee], this is your lucky day. Someone should have asked
              you, were you driving the vehicle. They have to have a
              reasonable suspicion. I am making it a finding of fact that there
              was not reasonable suspicion, even though you were running
              around in the woods in your bare feet in 25 degree weather.

              But I think that this, in particular, is a very important matter, a
              license suspension for a year. And, again, I am just making it a
              finding of fact that there was not reasonable … grounds, because
              the trooper was with you for a considerable period of time under
              circumstances such as in the woods, doing sobriety tests, at the
              hospital, et cetera, where the question should have been asked,
              and you had the right to say no, but you never even had the
              opportunity to say no.

N.T. 26-27; R.R. 53a-54a.           The trial court sustained Licensee’s appeal, and
PennDOT appealed.
              On appeal,3 PennDOT argues the trial court erred. It contends that the
evidence established that Trooper Neigh had reasonable grounds to arrest Licensee
for a DUI offense.
              To sustain a suspension of operating privileges under Section 1547(b)
of the Vehicle Code, PennDOT has the burden of proving the following elements:

              (1) a police officer arrested a licensee based upon reasonable
              grounds to believe that the licensee was driving under the
              influence of alcohol; (2) the officer asked the licensee to submit
              to chemical testing; (3) the licensee refused to submit to such
              testing; and (4) the officer provided a warning to the licensee that
              his failure to submit to testing would result in the suspension of
              his license.



3
 Our review determines whether the trial court’s findings are supported by substantial evidence,
whether errors of law have been committed and whether the trial court’s determinations
demonstrate an abuse of discretion. Finnegan v. Department of Transportation, Bureau of Driver
Licensing, 844 A.2d 645, 647 n.3 (Pa. Cmwlth. 2004).
                                               4
Demarchis v. Department of Transportation, Bureau of Driver Licensing, 999 A.2d
639, 641 (Pa. Cmwlth. 2010) (emphasis in original). Here the only issue is whether
Trooper Neigh had reasonable grounds to believe Licensee was operating the vehicle
under the influence of alcohol. This is a question of law, and this Court reviews the
issue “in a plenary fashion and on a case-by-case basis.” Id. at 642.
             “Reasonable grounds” to arrest falls short of probable cause. We have
explained the reasonable grounds standard as follows:

             The standard of reasonable grounds to support a license
             suspension is a lesser standard than the probable cause standard
             needed to support a DUI conviction…. The standard is not a
             demanding one…. Reasonable 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 an intoxicating substance…. This is determined by
             examining the totality of the evidence, including 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…. Reasonable grounds do not require that
             other possible explanations or inferences that the officer could
             have made be unreasonable….

Marone v. Department of Transportation, Bureau of Driver Licensing, 990 A.2d
1187, 1190 (Pa. Cmwlth. 2010) (emphasis added; internal citations omitted). Even
where an arresting officer’s belief that the licensee was driving under the influence
of alcohol is later determined “to be erroneous, this will not render the reasonable
grounds void.”     Yencha v. Department of Transportation, Bureau of Driver
Licensing, 187 A.3d 1038, 1044-45 (Pa. Cmwlth. 2018). Nor must the arresting
officer “witness the licensee” driving. Id. at 1045. The arresting officer’s belief that
the licensee was driving while impaired is justified “if ‘one reasonable interpretation

                                           5
of the circumstances’ as they appeared at the time supports the officer’s belief.” Id.
(quoting Marnik v. Department of Transportation, Bureau of Driver Licensing, 145
A.3d 208, 213 (Pa. Cmwlth. 2016)).
             PennDOT argues that the trial court did not consider “the totality of the
evidence” as required and, instead, substituted its inferences for those drawn by the
officer from the circumstances. The trial court held that Trooper Neigh’s failure to
ask Licensee if he had been driving was a fatal oversight. PennDOT argues that the
question was not necessary where, as here, the totality of the circumstances showed
that Licensee was driving the vehicle.
             Licensee responds that Trooper Neigh’s testimony did not establish that
reasonable grounds existed to believe Licensee was driving under the influence of
alcohol. Licensee contends that Trooper Neigh’s conversations with third parties
were hearsay and entitled to no weight. Licensee also contends that being found
intoxicated in the woods behind his parents’ house, an hour after the troopers
discovered the vehicle in a ditch, did not establish he was the driver.
             An out-of-court statement can be admissible to establish “the state of
mind of the police officer hearing the statement or explaining the reason for the
conduct of the police officer in response to hearing this statement.” Patterson v.
Commonwealth, 587 A.2d 897, 901 (Pa. Cmwlth. 1991). The statements are not
hearsay because they are not offered to prove the truth of the statement. Rather, they
are offered only to prove that the statement was made. Duffy v. Department of
Transportation, Bureau of Diver Licensing, 694 A.2d 6, 9 (Pa. Cmwlth. 1997).
Where the statement is offered to show the police officer’s “reasonable belief that [the
licensee] had been driving,” the statement is not hearsay and is admissible. Id.




                                           6
              We turn, then, to PennDOT’s challenge to the trial court’s order. In its
Pennsylvania Rule of Appellate Procedure 1925(a) opinion, Pa. R.A.P. 1925(a), the trial
court explained that the accident scene did not show driver intoxication. The troopers
did not ask the bartender how much Licensee had to drink or if he had been intoxicated.
The statements made by Licensee’s father did not establish that Licensee had been
driving under the influence because the father did not see Licensee operate the car.
Further, the troopers did not ask Licensee’s father whether his son was intoxicated when
he arrived at his house. Theoretically, Licensee could have started drinking after the
vehicle landed in the ditch. Finally, Trooper Neigh did not ask Licensee if he was
driving the vehicle when it went into the ditch. Because Licensee was never asked if
he drove the vehicle on the night in question, the trial court held that Trooper Neigh’s
testimony did not establish that Trooper Neigh had a reasonable belief that Licensee
had been operating the vehicle under the influence of alcohol.
              The trial court overlooked the fact that Trooper Neigh testified that
Licensee’s parents stated that Licensee “wasn’t drinking at the residence.” N.T. 24;
R.R. 51a. Further, in Swyers v. Department of Transportation, Bureau of Driver
Licensing (Pa. Cmwlth., No. 292 C.D. 2018, filed September 10, 2018),4 this Court
explained that once the trial court accepts the arresting officer’s testimony as credible,
it cannot substitute its own judgment as to the inferences the officer should have drawn
therefrom. Instead, the trial court must “evaluate the totality of the circumstances
described by [the arresting officer] to determine whether, as a matter of law, a person
in his position could have reasonably concluded that Licensee had operated [his] vehicle
while under the influence of alcohol.” Id., slip op. at 6.


4
 Unreported opinions of this Court, issued after January 15, 2008, may be cited for persuasive
value, but do not constitute binding precedent. Internal Operating Procedures of the
Commonwealth Court, 210 Pa. Code §69.414(a).
                                              7
               Here, Trooper Neigh and his partner found Licensee’s vehicle in a ditch
near a bar and quickly learned that Licensee had been in a nearby bar drinking alone
about 15 to 20 minutes before the troopers arrived on the scene. Returning to the
vehicle, they encountered Licensee’s father who conceded that Licensee had been the
driver; had been drinking; and was back at the house. When the troopers arrived at the
house shortly after midnight, Licensee’s mother stated she had not been driving the
vehicle that evening. Both parents stated Licensee had not been drinking at the house.
Fifteen minutes later, the troopers found Licensee in the woods, barefoot, stumbling
and smelling of alcohol. Licensee failed field sobriety tests, and his preliminary breath
test yielded a 0.201% reading.5 Licensee was transported to a medical center, arriving
at 1:00 a.m. This recital amply supports Trooper Neigh’s reasonable conclusion that
Licensee was driving the vehicle, found in a ditch, under the influence of alcohol.
               Based on the foregoing discussion, we reverse the trial court’s order and
reinstate Licensee’s one-year suspension of his operating privilege.

                                                _______________________________
                                                Mary Hannah Leavitt, President Judge




5
  Where a licensee is not found at the accident scene, the arresting officer must establish “a
timeframe between the [licensee’s] operation of the car and subsequent arrest….” Demarchis, 999
A.2d at 643 (quoting Stahr v. Department of Transportation, Bureau of Driver Licensing, 969
A.2d 37, 40 (Pa. Cmwlth. 2009)) (emphasis omitted). Trooper Neigh established a clear timeline
of the events, from the accident scene to Licensee’s arrest at the residence. His testimony
established that the troopers entered the bar at 11:45 p.m. and learned Licensee had been there 15
to 20 minutes earlier, drinking alcohol. Father arrived at the accident scene 10 minutes later,
planning to tow the vehicle for Licensee. By 12:16 a.m., the troopers arrived at the residence and
began their search for Licensee. By 1:00 a.m., they arrived at the medical center with Licensee.
                                                8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason J. Hartmann                       :
                                        :
            v.                          :   No. 690 C.D. 2019
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing,             :
                         Appellant      :


                                     ORDER

            AND NOW, this 8th day of April, 2020, the order of the Court of Common
Pleas of Mercer County, dated May 3, 2019 is hereby REVERSED and the Department
of Transportation, Bureau of Driver Licensing’s, one-year suspension of Jason J.
Hartmann’s driving privilege is REINSTATED.


                                        _______________________________
                                        Mary Hannah Leavitt, President Judge
