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Schlag v. Commonwealth

January 7, 2009

WILLIAM SCHLAG, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: Judge Simpson

Submitted: October 10, 2008

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In this license suspension appeal, William Schlag (Licensee) asks whether the Court of Common Pleas of Allegheny County (trial court) erred in dismissing his statutory appeal of the Department of Transportation, Bureau of Driver Licensing's (PennDOT) 18-month suspension of his driving privilege for refusing to submit to a chemical test.*fn1 Licensee argues the trial court erred in determining the arresting officer had reasonable grounds to request Licensee to submit to chemical testing. He also asserts the arresting officer's actions violated Article I, Section 8 of the Pennsylvania Constitution. Finally, Licensee contends the trial court abused its discretion by formulating its own opinion extraneous to the testimony of the arresting officer. Upon review, we affirm.

In December 2006, PennDOT notified Licensee of an 18-month suspension of his operating privilege based on his reported refusal to submit to chemical testing. Licensee filed a statutory appeal with the trial court.

At a de novo hearing before the trial court, PennDOT presented the testimony of Ross Township Police Officer David Eckels. Officer Eckels testified he received a radio dispatch from the County 911 center, pertaining to a hit-andrun accident. Dispatch informed Officer Eckels the driver of the vehicle struck in the accident (Complainant) followed the vehicle that collided with him to a certain location. According to Officer Eckels, Complainant followed the vehicle to Licensee's residence and confronted Licensee. While outside Licensee's residence, Complainant observed a green Ford Taurus, the same vehicle that collided with him. In addition, Complainant informed Officer Eckels of his observations of Licensee's slurred speech and the smell of alcohol on Licensee's breath.

Officer Eckels then examined the green Ford Taurus. Concerned with possible injuries to Licensee, Officer Eckels proceeded to enter Licensee's residence. After announcing his presence and receiving no response, Officer Eckels entered Licensee's residence where he found Licensee awake in a living room chair. Officer Eckels proceeded to question Licensee's condition, and he observed slurred speech, bobbing, swaying, blood shot eyes, a flushed facial appearance and a strong odor of alcohol on Licensee's breath. Officer Eckels requested Licensee perform field sobriety tests, involving the one leg stand, finger count and recitation of the alphabet. Licensee failed each field sobriety test.

Officer Eckels placed Licensee under arrest for suspicion of driving under the influence of alcohol (DUI). After Officer Eckels transported Licensee to a hospital for a chemical blood test, Licensee refused to submit to such testing. Officer Eckels provided Licensee with the DL-26 Form, and Officer Eckels read the form verbatim to Licensee.

In response, Licensee presented the testimony of John Kovacik, who was with him on the day of the incident. In addition, Licensee testified on his own behalf. Both Licensee and Kovacik testified Licensee's wife was driving the vehicle on the night of his DUI arrest. Licensee acknowledged he spoke with Complainant at his residence. Licensee further testified he consumed "three or four Tylenol PM's and a beer and a half, maybe two beers" after he arrived back at his residence. Notes of Testimony (N.T.), 1/10/07, at 62. He testified he could not remember "anything after being put in the police car until I was awakened in the cell of Ross Township." Id. at 63.

Ultimately, the trial court issued an order dismissing Licensee's statutory appeal. Licensee appealed to this Court.

On April 17, 2008, the trial court directed Licensee to file a statement of matters complained of on appeal. Licensee did not seek to enlarge the time for filing. Licensee filed his statement on June 6, 2008, 50 days after the trial court's order. In response, the trial court issued an opinion responding to issues raised in Licensee's statement. This matter is now before us for disposition.

On appeal,*fn2 Licensee argues the trial court erred in determining the arresting officer had reasonable grounds to request Licensee to submit to chemical testing or to believe Licensee was in actual physical control of a vehicle while under the influence of alcohol. He also asserts the arresting officer's actions here violated Article I, Section 8 of the Pennsylvania Constitution. Finally, Licensee contends the trial court abused its discretion by formulating its own opinion extraneous to the testimony of the arresting officer.

PennDOT responds Licensee waived all the issues raised in his brief to this Court because, among other things, he did not file a timely statement of matters complained of on appeal as directed by the trial court, and he did not raise the issues he now raises in the 1925(b) Statement he eventually filed.

As to PennDOT's contention that Licensee waived all issues on appeal because he did not file a timely statement of matters complained of on appeal, failure to timely file a 1925(b) statement, when directed to do so by the trial court, results in automatic waiver of all issues on appeal. See Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). This Court previously held, "[p]ursuant to Castillo and Schofield, if an appellant fails to comply with a trial court order by filing a timely Concise Statement ...


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