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08/27/97 WILLIAM A. DIPAOLO v. COMMONWEALTH

August 27, 1997

WILLIAM A. DIPAOLO, III
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



Appealed From No. S.A. 827 of 1996. Common Pleas Court of the County of Allegheny. Judge ROSS.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: August 27, 1997

The Department of Transportation, Bureau of Driver Licensing (DOT), appeals an order of the Court of Common Pleas of Allegheny County, which sustained William A. DiPaolo, III's (Licensee) appeal of a one year suspension of his driver's license imposed under Section 1547 of the Vehicle Code (Code). *fn1

On June 4, 1996, Officer Anthony DeMarco of the Wilkins Township Police Department observed Licensee driving his vehicle out of a tavern parking lot. Licensee drove down Route 22, locally known as the William Penn Highway, toward the intersection of that Route and Kingston Drive. When Licensee reached the intersection, instead of using a designated left turning lane to turn onto Kingston Drive, Licensee made a U-turn in an entrance to a department store and then entered the crossroad. Officer DeMarco became suspicious and began to follow Licensee. He followed Licensee into a housing development, where Officer DeMarco observed Licensee turn into a cul-de-sac road. Officer DeMarco then stopped Licensee's vehicle. At no time prior to the traffic stop did Officer DeMarco observe Licensee weaving in and out of traffic, speeding, or moving in an erratic manner.

Officer Demarco approached Licensee's vehicle and detected an odor of alcohol on Licensee's person. He had Licensee perform field sobriety tests including the one-leg stand balancing test, the straight walk, the walk and turn, and the finger-to-nose test. Thereafter, Officer DeMarco placed Licensee under arrest for driving under the influence of alcohol and Licensee was transported to the Wilkins Township police station. Officer DeMarco read Licensee chemical testing warnings and asked Licensee to submit to a blood test. Licensee, however, refused to submit to the test. Thereafter, DOT notified Licensee that his driver's license would be suspended for one year, as a result of his refusal of chemical testing.

Licensee appealed DOT's suspension to the common pleas court, which conducted a hearing on September 12, 1996. At the hearing, Officer Demarco testified, inter alia, to the events surrounding the field sobriety test. Officer DeMarco testified that Licensee was swaying while performing the walking tests and that he failed the finger-to-nose test; however, on cross-examination, Officer DeMarco conceded that he testified at the criminal preliminary hearing that Licensee was able to walk a straight line without falling off the line and that Licensee completed the one-leg test by holding each leg up for a count of ten. Also, after being asked about his prior testimony concerning Licensee's performance of the finger-to-nose test, the officer testified that he did not remember where Licensee's finger touched.

The common pleas court found as fact that Licensee satisfactorily completed the field sobriety tests. The court held that, in light of Licensee's performance of the tests, Officer DeMarco did not have reasonable grounds to arrest Licensee. The common pleas court sustained Licensee's appeal, and this appeal followed.

On appeal, DOT contends that (1) the legality of Licensee's arrest is irrelevant to its authority to suspend Licensee's driving privileges under Section 1547 of the Code, and (2) Officer Demarco had reasonable grounds to believe that Licensee had been operating his motor vehicle while under the influence of alcohol.

To sustain a license suspension under Section 1547 of the Vehicle Code, it is DOT's burden to establish the following: (1) the motorist was arrested for drunken driving by a police officer who had reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol or a controlled substance; (2) the motorist was asked to submit to a chemical test; (3) he or she refused to do so; and (4) the motorist was warned that refusing the test would result in a license suspension. *fn2

Vinansky v. Commonwealth Department of Transportation, 665 A.2d 860 (Pa. Commw. 1995).

DOT is correct that the validity of a motorist's criminal arrest for driving under the influence of alcohol does not affect DOT's authority to suspend a driver's license for refusal to submit to chemical testing. Department of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987). However, while the common pleas court stated in its opinion that "grounds for [Licensee's] arrest did not exist," its decision was not premised on the Conclusion that Licensee's arrest was invalid or illegal. The notes of testimony indicate that the court understood that, to uphold the suspension, Officer DeMarco only needed reasonable grounds to believe that Licensee was driving under the influence of alcohol, and that the court sustained Licensee's appeal because it concluded that the officer did not have such reasonable grounds. *fn3 Nevertheless, even if the common pleas court had erroneously based its holding on a Conclusion that Licensee's arrest was illegal, we believe that the record shows that Officer DeMarco did not have reasonable grounds to believe that Licensee was operating his vehicle under the influence of alcohol.

The test to determine whether a police officer has reasonable grounds to conclude that a motorist operated a vehicle under the influence is not very demanding. Department of Transportation, Bureau of Driver Licensing v. Johnson, 102 Pa. Commw. 302, 518 A.2d 8 (Pa. Commw. 1986). In Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 ...


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