AND NOW, this 4th day of December, 2009, it is
ORDERED that the above-captioned opinion and dissenting opinion filed November 17, 2009 shall be designated OPINION rather than MEMORANDUM OPINION, and shall be reported.
Submitted: September 25, 2009
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The Pennsylvania Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals the January 9, 2009 order of the Court of Common Pleas of Schuylkill County (trial court) reinstating the operating privileges of Robert Stancavage (Stancavage). The only issue in this case is whether the arresting officer had reasonable grounds to believe that Stancavage was under the influence of alcohol or a controlled substance while operating his vehicle on February 21, 2008, in violation of Section 3802 of the Vehicle Code.*fn1 For the reasons that follow, we affirm the trial court.
Stancavage was driving with a passenger on February 21, 2008 when he was pulled over by West Penn Township Chief of Police, Brian Johnson (Chief Johnson), allegedly for speeding and following too closely behind another vehicle.
While the record contains no details regarding Stancavage's alleged following too closely, he was accused of driving sixty-two miles per hour where the speed limit was forty-five miles per hour. After being stopped, Stancavage produced his driver's license and registration upon request. Chief Johnson testified that as Stancavage was handing him the information, the Chief noticed that his eyes were glassy, but that there was no smell of alcohol emitting from him.
Chief Johnson asked Stancavage to step out of the vehicle, and take a series of field sobriety tests. While Chief Johnson testified that Stancavage failed all three field sobriety tests administered, Stancavage testified that he did not believe he failed any of the tests. Specifically, Chief Johnson cited as Sancavage's failures: (1) his failure to keep his head still and keep his eyes from "jerking or jumping" during a horizontal gaze nystagmus (HGN) test;*fn2 (2) failing to count and turn as instructed during a heel to toe walk; and (3) failing to stand on one leg until the officer told him to stop. Reproduced Record (R.R.) at 20a-21a. Stancavage explained that the testing surface was beveled and that the officer did not properly instruct him as to how to complete the tests. R.R. at 33a.
Chief Johnson further testified that Stancavage consented to a search of his car. Both Chief Johnson and a K-9 unit searched the car. The K-9 unit detected the possible presence of a controlled substance on the vehicle, but Chief Johnson's subsequent search produced no controlled substances.
Chief Johnson arrested Stancavage for driving under the influence of alcohol or controlled substances (DUI) and took him to the local hospital for a blood alcohol content reading. Chief Johnson read the Implied Consent warnings to Sancavage, and Stancavage signed Form DL-26.*fn3 Stancavage testified that he refused the chemical test because he was angry at being pushed too far and that he was "clearly not intoxicated." R.R. at 34a.
Ultimately, no charges were filed against Stancavage for DUI or possession of controlled substances. Stancavage was not cited for speeding, not cited for following too closely, ...