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Osselburn v. Commonwealth

April 14, 2009

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



The opinion of the court was delivered by: Judge Leavitt

Submitted: January 23, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

William Osselburn (Licensee) appeals an order of the Somerset County Court of Common Pleas (trial court) denying his statutory appeal of an eighteen-month suspension of his driver's license and one-year disqualification of his commercial driving privileges. These penalties were imposed by the Department of Transportation, Bureau of Driver Licensing (PennDOT) following Licensee's refusal to submit to chemical testing after he was arrested for driving under the influence of alcohol (DUI). In this appeal, Licensee asserts that the arresting officer did not have reasonable grounds to believe that he was operating his vehicle while under the influence of alcohol when he was stopped and, further, that the officer's stop violated his right to privacy guaranteed by the Pennsylvania Constitution. Concluding that Licensee's contentions lack merit, we affirm the trial court.

On October 27, 2006, Licensee was observed to be driving carelessly and was stopped by Pennsylvania State Police Troopers Paul Tononi and Neil Snedden. Noting the odor of alcohol, Licensee's bloodshot eyes and slurred speech, Trooper Tononi administered a breath test on Licensee, and it indicated a blood alcohol content (BAC) of .135. Trooper Tononi advised Licensee that he was being arrested for DUI and transported him to Somerset Hospital for a blood test.

At the hospital, Trooper Tononi read verbatim the warnings contained on PennDOT's implied consent form, Form DL-26. Licensee refused to submit to the blood test, and the troopers returned him to his residence. Upon report that Licensee had refused to submit to chemical testing, PennDOT suspended his driver's license for eighteen months pursuant to Section 1547(b)(1)(ii)(A) of the Vehicle Code.*fn1 PennDOT also disqualified Licensee's commercial driving privileges pursuant to Section 1613(d.1) of the Vehicle Code.*fn2 On December 13, 2006, Licensee appealed the suspension and disqualification, arguing, inter alia, that the traffic stop was a violation of his "right to be let alone" guaranteed by Article I, Section 8 of the Pennsylvania Constitution.

At the hearing before the trial court, Trooper Tononi testified about why Licensee was stopped. He explained that while on routine patrol, he and his partner found themselves following Licensee who was traveling on the same road in front of their vehicle. Licensee suddenly made a sharp turn onto another road, without signaling, and then drove in the wrong lane of travel for 35 to 40 feet before returning to the proper lane. The troopers stopped Licensee and cited him for careless driving.

On cross-examination, Trooper Tononi was questioned about his motive for stopping Licensee. Trooper Tononi testified that he had observed Licensee's vehicle earlier that evening in front of a bar and had verified Licensee's ownership of the vehicle by running a search of the license plate number. He explained that he did this because the lights were on inside the vehicle, which he and Trooper Snedden, his partner, considered "kind of suspicious." Reproduced Record at 43a (R.R. ___). He testified that the troopers did not know they were behind the same vehicle when they stopped Licensee until they "re-ran the plate." Id.

Licensee did not testify. He offered as evidence a copy of his preliminary hearing transcript for the purpose of supporting his theory that Troopers Tononi and Snedden had "stalked him." Licensee argued that there were inconsistencies in Trooper Tononi's testimony that belied his claim to have a "reasonable suspicion" for the traffic stop and showed that the troopers had been lying in wait for Licensee's vehicle after they had seen it parked at a bar for several hours. In support, Licensee offered an audio and video recording of the traffic stop and conversations of the troopers, which was admitted into evidence. The trial court summarized the content of the troopers' conversation as follows:

The audio portion of the tape contains vulgar expletives referring to [Licensee] and in one instance to the court itself. There is reference to the fact that the troopers had observed [Licensee's] vehicle at the bar for two hours; however, it is unclear that the officers stalked [Licensee] or had him specifically targeted by having run his license plate number prior to his driving. There is also a reference that the troopers believed [Licensee] had previously testified in court and indicated that he had been drinking with one of their fellow officers and that [Licensee] had gotten off of the charges. In addition, following [Licensee's] arrest the troopers engaged in a discussion regarding the number of DUI arrests needed before the end of the year, as if they were involved in a contest.

Trial Court Opinion at 5-6.

Licensee argued that these above-described conversations demonstrated that the troopers were targeting him; his arrest for failure to signal a turn was a pretext. Licensee acknowledged that the legality of a traffic stop is generally irrelevant in a chemical testing refusal case. However, Licensee pointed out that our Supreme Court has expressed a willingness to consider a constitutional challenge to a traffic stop under the privacy right established in Article I, Section 8 of the Pennsylvania Constitution.*fn3 Specifically, Licensee directed the trial court to the following statement made by our Supreme Court in McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 94 n.3, 838 A.2d 700, 705 n.3 (2003):

These holdings were based on Fourth Amendment analysis. This Court has not considered the propriety of suppression in the Implied Consent Law setting in the context of a challenge involving the assertion of the enhanced privacy protections under Article I, Section 8 of the Pennsylvania Constitution. See generally Commonwealth v. Edmunds, 526 Pa. 374, 402, 586 A.2d 887, 901 (1991).

Licensee argued that because the stop of his vehicle violated Article I, Section 8, the evidence obtained by reason of that stop should have been ...


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