The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: December 31, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Dauphin County (trial court) which sustained the appeal of Corey S. Weems (Weems) from an eighteen-month suspension of his operating privileges for refusal to submit to chemical testing, pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i). We reverse.
On April 19, 2008, Weems was charged with Driving Under the Influence of Alcohol or Controlled Substance (DUI) in violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. The Department notified Weems by letter dated April 30, 2008, that his operating privileges would be suspended for eighteen months as a result of his refusal to submit to chemical testing on April 19, 2008, in violation of Section 1547 of the Vehicle Code. On May 30, 2008, Weems filed a timely appeal to the trial court.
On July 16, 2008, the trial court held a de novo hearing. The Department presented the testimony of Officer Brant Maley of the Penbrook Borough Police Department (Officer Maley). Officer Maley testified that on April 19, 2008, he affected a traffic stop of Weems' vehicle after observing it traveling at about 50 miles-per-hour in a properly posted 25 mile-per-hour zone and failing "to stop at a red turn". Reproduced Record (R.R.) at 18a. Officer Maley testified that he "detected an odor of alcoholic beverage coming from [Weems'] breath" and that Weems told him that he had only had one drink starting at 8:00 p.m. that evening. R.R. at 19a. Thereafter, Officer Maley requested Weems to perform a series of field sobriety tests, which he consented to perform. Officer Maley determined that Weems failed the sobriety tests. Officer Maley then placed Weems under arrest for driving under the influence, put him in his patrol car and transported him to the Dauphin County booking center in Harrisburg. Once at the booking center, Officer Maley read the Implied Consent warnings to Weems from the DL-26 form and gave Weems the opportunity to read the form to himself. Thereafter, Weems signed the DL-26 form and advised Officer Maley that "he was going to refuse to take the breath test." R.R. at 21a.
On cross, Officer Maley agreed that about a quarter-of-a-mile after he began following Weems' vehicle, he entered another jurisdiction, Susquehanna Township. Officer Maley stated that he had not been able to "clock" Weems' vehicle in order to cite him for speeding; that he was of the opinion that Weems was traveling at a speed higher than posted and determined that there could be a problem with Weems operating a motor vehicle safely. Officer Maley charged Weems with violating 75 Pa. C.S. §3361 (relating to driving a vehicle at a safe speed).*fn1
The trial court interjected that the issue before it regarded the Municipal Police Jurisdiction Act, 42 Pa. C.S. §8953 (relating to statewide municipal police jurisdiction)(MPJA). The Department argued that under the MPJA, Officer Maley properly followed Weems' vehicle into Susquehanna Township and affected an arrest for DUI, because he had observed a traffic violation in his own jurisdiction of Penbrook, that is, driving a vehicle at an unsafe speed, approximately fifty miles-per-hour in a 25 mile-per-hour zone.
The trial court asked for the disposition of the Section 3361 violation and was informed that it was still pending before the trial court. The trial court then asked counsel for Weems his position on whether Officer Maley would have jurisdiction pursuant to the MPJA if the purpose of his exceeding his boundaries was to issue the citation for violating Section 3361. Weems' attorney responded that he would agree with the trial court's analysis under 42 Pa. C.S. §8953(a)(2) (hot and fresh pursuit). The trial court continued the matter until the underlying charges were adjudicated.
On May 6, 2009, the trial court reconvened the hearing. The trial court was advised that Weems pled guilty to disorderly conduct and a violation of 75 Pa. C.S. § 3111 (relating to obedience to traffic-control devices). R.R. at 45a-46a. Weems did not enter a plea regarding the 75 Pa. C.S. §3361, unsafe speed charge. R.R. at 47a.
Officer Maley was recalled and testified regarding his observation of Weems' vehicle the night in question. Officer Maley stated that he estimated Weems to be traveling at about 50 miles-per-hour in a 25 mile-per-hour zone; that his estimate was based upon nine years of service and doing a lot of focus traffic enforcement. Officer Maley stated that he has "clocked like tens of thousands of cars with speed timing equipment through my career. I have - - that's a good estimate of what the travelling public is doing.. I estimate that I am plus or minus two or three miles per hour on my guesses most of the time. I am sometimes right on, pretty close." R.R. at 50a-51a. Officer Maley, when questioned by the trial court judge, stated that he followed Weems' vehicle in order to stop him for driving at an unsafe speed. R.R. at 58a. Officer Maley further stated that he had "reasonable suspicion to stop him at that time.." Id.
The trial court sustained Weems' statutory appeal. The trial court stated that it sustained Weems' appeal because Officer Maley testified that he had a "reasonable suspicion" that Weems had violated 75 Pa. C.S. §3361 while he was within Officer Maley's primary jurisdiction, and the MPJA required that he have "probable cause" to believe that Weems had violated Section 3361. The Department now appeals to this court.*fn2
On appeal, the Department contends that the trial court erred as a matter of law in holding that Officer Maley, the arresting police officer, did not have the authority to affect an extraterritorial arrest of licensee, Weems, under the MPJA for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802 (driving under the influence).
To sustain a license suspension under Section 1547(b) of the Vehicle Code, the Department must demonstrate that the licensee: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspension of his operating privileges. Carlin v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 678, 759 A.2d 924 (2000).*fn3 If the Department is able to sustain its burden, the burden then shifts to the licensee to prove that he was physically unable to take the ...