Olt v. Department of Transportation, Bureau of Driver Licensing

218 A.3d 1

Jeffrey T. OLT, Appellant

v.Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

Jeffrey T. Olt, Appellant

v.Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

No. 1653 C.D. 2018

No. 1654 C.D. 2018

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 21, 2019

Decided August 15, 2019

Publication Ordered October 8, 2019

J.T. Herber, III, Pottsville, for Appellant.

Shawn J. Jayman, Assistant Counsel, Harrisburg, for Appellee.

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

OPINION BY JUDGE COVEY

Jeffrey T. Olt (Licensee) appeals from the Schuylkill County Common Pleas Court's (trial court) November 13, 2018 order denying and dismissing his operating privilege suspension and disqualification appeals from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department). Licensee presents two issues for this Court's review: (1) whether the trial court erred by permitting a testifying witness to describe out-of-court statements made by a non-testifying witness; and (2) whether the trial court erred by dismissing Licensee's appeals because the arresting officer erroneously utilized a breath testing form to obtain blood test consent, and contradicted his direct testimony and the Department's certified documents. After review, we affirm.

On January 4, 2018, Pennsylvania State Police Troopers Stephen Kleeman (Trooper Kleeman) and Jeffrey Hummel (Trooper Hummel) (collectively, Troopers) were separately dispatched for a reported disturbance involving a pick-up truck operator. They proceeded to Olt's Trucking, the business to which the truck was registered.

While at Olt's Trucking, Licensee approached the Troopers at moderate speed in a utility truck, stopped the vehicle, and began an aggressive interaction with the Troopers. Specifically, Licensee threatened to kill Trooper Hummel and his family, referred to him as "Howard Stern," and accused him of stealing Licensee's red beet eggs. Reproduced Record (R.R.) at 190a. During the interaction, Licensee backed up the vehicle and then pulled forward at a high rate of speed in Trooper Hummel's direction, leading Trooper Hummel to believe Licensee was going to strike him. Trooper Hummel drew his weapon. Licensee stopped the vehicle, hid behind the door, reiterated to Trooper Hummel that he was going to kill him and his family, and lectured him about drawing his weapon.

Trooper Hummel observed that Licensee appeared agitated and confused, his eyes were glossy, and his speech was slurred. Although the Troopers believed that Licensee might be impaired, they did not detect an odor of alcohol on or around him. Licensee got back into his vehicle and left the property. Believing that Licensee should not be driving in his condition, the Troopers pursued Licensee with their lights and sirens activated, but Licensee did not stop. During the pursuit, Licensee traveled on both sides of the roadways and drove through a stop sign. The chase¹ ended when Licensee ran his vehicle off the road. Because Licensee refused to get out of his vehicle, the Troopers forcibly removed him.

Once Licensee was in custody, Trooper Kleeman asked Pennsylvania State Police drug recognition expert Corporal Rymarkiewicz (Corporal Rymarkiewicz) to proceed to the Pennsylvania State Police barracks to conduct a drug recognition evaluation (DRE) on Licensee because he believed that "something was going on" with Licensee. R.R. at 34a. As Trooper Hummel transported Licensee to the barracks, Licensee continued to refer to Trooper Hummel as "Howard Stern," and asked Trooper Hummel why he did not remember him from computer classes they took together, despite that Trooper Hummel had not taken any computer classes. Based on Trooper Hummel's experience, he believed that Licensee "was certainly under the influence" and that "he was certainly impaired of some sort of ... narcotic or prescription drug; and ... was incapable of safely driving ...." R.R. at 75a-76a.

When Trooper Kleeman returned to the barracks, he learned that Licensee was being uncooperative. Trooper Kleeman spoke with Licensee and explained that although he did not smell alcohol on Licensee, he felt that a DRE was warranted based on Licensee's combative and nonsensical in-custody behavior during the incident. Corporal Rymarkiewicz conducted Licensee's DRE in Trooper Kleeman's presence. Based on Trooper Kleeman's observations, and those of Corporal Rymarkiewicz, Trooper Kleeman concluded that further testing was warranted. Accordingly, Trooper Kleeman advised Licensee that he was under arrest for suspected driving under the influence, and he read Licensee the implied consent warnings (DL-26 Form).² The DL-26A Form (DL-26A Form) contained the following warnings:

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code[, 75 Pa.C.S. § 3802 ].

2. I am requesting you to submit to a chemical test of breath .

3. If you refuse to submit to the breath test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, your operating privilege will be suspended for up to 18 months. If your operating privilege is suspended for refusing chemical testing, you will have to pay a restoration fee of up to $2,000[.00] in order to have your operating privilege restored. In addition, if you refuse to submit to the breath test, and you are convicted of violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, then, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000[.00].

R.R. at 120a (emphasis added). Although the DL-26A Form pertained to breath test consent, Trooper Kleeman substituted the word "blood" for the word "breath" as he read the implied consent warnings to Licensee. R.R. at 50a, 52a-53a. Licensee refused to submit to the test.

By notice mailed on April 25, 2018, the Department suspended Licensee's operating privilege for one year (Suspension Notice) pursuant to Section 1547 of the Vehicle Code (Vehicle Code) (commonly referred to as the Implied Consent Law), 75 Pa.C.S. § 1547. Also on April 25, 2018, the Department informed Licensee of the lifetime disqualification of his commercial driver's license (Disqualification Notice), as required by Section 1611(c) of the Uniform Commercial Driver's License Act (UCDL),³ 75 Pa.C.S. § 1611(c), because his January 4, 2018 chemical testing refusal was his second violation of Section 1611(a) of the UCDL, 75 Pa.C.S. § 1611(a).

On May 4, 2018, Licensee filed a pro se statutory appeal in the trial court. On May 25, 2018, Licensee's counsel (Counsel) appealed from both the license suspension and commercial license disqualification in the trial court. On September 20, 2018, the trial court held a de novo hearing, consolidating Licensee's pro se and counseled appeals. At the hearing, Trooper Kleeman and Trooper Hummel described the relevant events of January 4, 2018, and the grounds upon which they believed Licensee was operating his vehicle while under the influence of a controlled substance. Corporal Rymarkiewicz did not attend the hearing. Licensee did not testify or present evidence.

On November 13, 2018, the trial court dismissed Licensee's appeals. The trial court found the Troopers' testimony credible, concluded the Troopers had reasonable grounds to believe Licensee was operating his vehicle while under the influence of a controlled substance, and determined that Licensee had refused consent for chemical testing. Licensee appealed to this Court.⁴

Initially,

[i]n order to sustain the appeal of a license suspension under the Implied Consent Law:

The Department must prove at a statutory appeal hearing that the licensee (1) was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance, (2) was asked to submit to a chemical test, (3) refused to do so, and (4) was warned that a refusal would result in a license suspension.

Zwibel v. Dep't of Transp., Bureau of Driver Licensing , 832 A.2d 599, 604 (Pa. Cmwlth. 2003) (emphasis in original). With regard to the first prong of this burden,

[a]n officer has reasonable grounds to believe an individual was operating a motor vehicle under the influence of alcohol ‘if a reasonable person in the position of a police officer, viewing the facts and circumstances as they appeared to the officer at the time, could conclude that the driver drove his car while under the influence of alcohol.’ McCallum v. Commonwealth , ... 140 Pa.Cmwlth. 317, 592 A.2d 820, 822 (1991). The issue of reasonable grounds is decided on a case-by-case basis, and an officer's reasonable grounds are not rendered void if it is later discovered that the officer's belief was erroneous. Id. The officer's belief must only be objective in light of the surrounding circumstances. Moreover, the existence of reasonable alternative conclusions that may be made from the circumstances does not necessarily render the officer's belief unreasonable. Id.

Id.

Regula v. Dep't of Transp., Bureau of Driver Licensing , 146 A.3d 836, 842-43 (Pa. Cmwlth. 2016).⁵

Licensee first argues that the trial court erred when it permitted Trooper Kleeman to testify regarding Corporal Rymarkiewicz's post-DRE conclusion. Licensee specifically contends the trial court erred when it...