Marnik v. Commonwealth

145 A.3d 208

Christopher MARNIK, Jr.

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.

No. 949 C.D. 2015

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 5, 2016.

Decided Aug. 9, 2016.

Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellant.

Michael S. Sherman, Pittsburgh, for appellee.

BEFORE: MARY HANNAH LEAVITT, President Judge, and ANNE E. COVEY, Judge, and ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION BY Judge ANNE E. COVEY.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driving Licensing (DOT) appeals from the Allegheny County Common Pleas Court's (trial court) May 28, 2015 order sustaining the appeal of Christopher Marnik, Jr. (Marnik) from the 18–month suspension of his operating privileges imposed pursuant to Section 1547 of the Vehicle Code (commonly referred to as the Implied Consent Law) (Law).¹ The issue for this Court's review is whether the trial court erred when it concluded that the arresting officer did not have reasonable grounds to believe that Marnik was driving while under the influence of alcohol (DUI). After review, we vacate and remand.

By letter dated May 10, 2013, Marnik was notified that due to his refusal to submit to a chemical test following an arrest for DUI on April 29, 2013, his vehicle operating privileges would be suspended for 18 months beginning June 14, 2013. On June 6, 2013, Marnik appealed to the trial court. The trial court held a hearing on May 29, 2014.

At the hearing, Robinson Township Police Department patrolman Michael Gastgeb (Officer Gastgeb) testified that, on April 29, 2013 at approximately 1:20 a.m., he observed a disabled vehicle on the roadway with no occupant. According to Officer Gastgeb, no one was around the vehicle at that time. Officer Gastgeb stated that the vehicle had a bent tire and scratches on the passenger side consistent with a guard rail impact. Officer Gastgeb explained that the accident had occurred just prior to his arrival, since the vehicle had not been present when he passed that location just fifteen minutes earlier. Officer Gastgeb further indicated that while he was at the scene, Marnik approached, dressed in gym shorts and a t-shirt. Marnik stumbled, had glassy eyes, slurred speech and smelled of alcohol. Officer Gastgeb described his interaction with Marnik as follows:

Q. And how long after you came upon this disabled vehicle did [Marnik] show up?

A. It was within a few minutes.

Q. And what kind of balance did Mr. Marnik manifest at that time?

A. [Marnik] was stumbling. He had [a] general[ly] hard time keeping his balance walking towards me.

Q. And what happened after [Marnik] approached you?

A. I asked him if that was his vehicle.

Q. What was his answer?

A. He said, yes; it's my grandfather's vehicle.

Q. What did you next say to him?

A. I asked if he had been driving the vehicle and he said yes. And I asked if he was in an accident and he said he did not know.

Q. He didn't know. Okay. What happened next after you asked him if he had been in an accident and he responded that he didn't know?

A. Yes. I asked if he had been drinking tonight and he said, yes; I was earlier. At that time, [Marnik] refused to communicate with me and the other officers.

Reproduced Record (R.R.) at 17a–18a. Officer Gastgeb testified that Marnik did not possess car keys at that time. On cross-examination, Officer Gastgeb admitted he did not recall whether the vehicle was running when he arrived and whether the keys were in the ignition, but that if such were the case, he would have noted it in his report, and it was not so noted. According to Officer Gastgeb, he never personally observed Marnik present in the vehicle; however, he advised Marnik that he was under arrest for DUI and transported him to Ohio Valley Hospital to have blood drawn.² Officer Gastgeb explained that after he read the implied consent warnings to Marnik, Marnik refused to submit to the blood test.

On February 24, 2015, the trial court sustained Marnik's appeal. The trial court reasoned:

The objective evidence was that Officer Gastgeb observed a vehicle belonging to [Marnik's] grandfather parked on the roadway with a bent tire and scratches on its passenger side. Officer Gastgeb could not recall if the keys were in the ignition or if the car was running, although he recalled that he had testified at the preliminary hearing that he would have made a note of it on his Police Report if the keys were in the ignition. While Officer Gastgeb was at the scene, he observed [Marnik] approaching the car. Officer Gastgeb observed that [Marnik] exhibited several signs of intoxication and [Marnik] told him that he had drinks earlier. Officer Gastgeb did not ask him when he had been drinking or where he had been. When [Marnik] met with the Officer, [he] had no car keys with him.

Nowhere is there any evidence that [Marnik] had any intoxicating beverage when he drove his car. There is simply no objective evidence from which to conclude that [Marnik] was in actual physical control of his vehicle while intoxicated.

R.R. at 94a–95a.

On March 18, 2015, DOT filed a motion for reconsideration. On March 26, 2015, DOT appealed to this Court. On March 19, 2015, the trial court granted reconsideration.³ Thus, DOT withdrew its appeal. On May 28, 2015, upon reconsideration, the trial court again entered an order sustaining the appeal. DOT appealed to this Court.⁴

DOT contends that the trial court erred when it held that Officer Gastgeb did not have reasonable grounds to believe that Marnik had driven the vehicle while intoxicated, since Marnik appeared alone and intoxicated at the scene shortly after his grandfather's vehicle had been damaged, admitted that he had been drinking earlier in the evening, admitted driving the vehicle, and did not explicitly deny being involved in the accident. We agree.

This Court has explained:

Section 1547(b) of the Vehicle Code states that if a person arrested for violating Section 3802 of the Vehicle Code refuses to submit to a chemical test, [DOT] will suspend his operating privileges for 12 months, or for 18 months if the person has previously refused chemical testing or had a prior suspension of his operating privileges under Section 1547 of the Vehicle Code. 75 Pa.C.S. § 1547(b)(1). If the suspension is appealed, [DOT] must establish that the person:

(1) was arrested for driving under the influence [ (DUI) ] by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.

Banner v. Dep't of Transp., Bureau of Driver Licensing, , 737 A.2d 1203, 1206 ( [Pa.]1999) (emphasis added).

Stahr v. Dep't of Transp., Bureau of Driver Licensing, 969 A.2d 37, 39–40 (Pa.Cmwlth.2009).

“In assessing whether [DOT] has met this burden, we consider the totality of the circumstances and determine, as a matter of law, whether a person in the position of the arresting officer could have reasonably reached this conclusion. ” Helt v. Dep't of Transp., Bureau of Driver Licensing, 856 A.2d 263, 266 (Pa.Cmwlth.2004) (emphasis added). “It is not necessary for an officer to actually witness a licensee operating a vehicle in order to have reasonable grounds to place him under arrest for[DUI]. ” Walkden v. Dep't of Transp., Bureau of Driver Licensing, 103 A.3d 432, 437 (Pa.Cmwlth.2014) (emphasis added). However, “at the very least, there must be some objective evidence that the motorist exercised control over the movement of the vehicle at the time he was intoxicated.” Banner, 737 A.2d at 1207.

‘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 intoxicating liquor.’ Banner, 737 A.2d at 1207. To determine whether the officer had reasonable grounds to conclude that the licensee was operating a vehicle under the influence, we must consider the totality of the circumstances, including such factors as the location of the vehicle; whether the engine was running; staggering, swaying or uncooperative behavior by the licensee; and the odor of alcohol.

Walkden, 103 A.3d at 436–37 (emphasis added). Further:

Whether evidence is sufficient to constitute reasonable grounds for arrest is a question of law subject to this Court's plenary review. The test for whether a police officer has reasonable grounds for believing a motorist is intoxicated is ‘not very demanding. ’ Dep ['t ] of Transp [.], Bureau of Traffic Safety v. Dreisbach, , 363 A.2d 870, 872 ( [Pa.Cmwlth.]1976). It is not necessary for the arresting officer to prove that he was correct in his belief that a motorist was operating the vehicle while intoxicated. Even if later evidence proves the officer's belief to be erroneous, this will not render the reasonable grounds void.

[I]t is not the province of the appellate court to make new and different findings of fact. Determinations as to the credibility of witnesses and the weight assigned to the evidence are solely within the province of the factfinder. Conflicts in the evidence are for the trial court to resolve and are improper questions for appellate review.

Hasson v. Dep't of Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1185–86 (Pa.Cmwlth.2005) (citations omitted; emphasis added). Finally, “[a]n officer's belief that the licensee was driving will justify a request to submit to chemical testing if one reasonable interpretation of the circumstances supports the officer's belief.” Helt , 856 A.2d at 266 (emphasis added).

[A ] [c]ommon pleas [court ] err [s ] in substituting its judgment as to what inference should be drawn from the circumstances the officer observed; the test is whether the officer's

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