The opinion of the court was delivered by: P. Kevin Brobson, Judge
Submitted: September 23, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Appellant Michael Anthony Sisinni (Sisinni) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), dated February 17, 2011. The trial court denied Sisinni's appeal and sustained the Department of Transportation's (DOT) one-year suspension of his operating privilege pursuant to Section 1547 of the Vehicle Code (Code), 75 Pa. C.S. § 1547,*fn1 for his refusal to submit to chemical testing. The only issue on appeal is whether the officer had "reasonable grounds" to demand that Sisinni submit to a chemical test. For the reasons that follow, we affirm.
In order to sustain a suspension of a licensee's operating privilege under Section 1547 of the Code for a refusal to submit to chemical testing, DOT must establish that the licensee:
(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension.
Kollar v. Dep't of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).
Whether reasonable grounds exist is a question of law reviewable by this Court on a case-by-case basis. Dep't of Transp., Bureau of Driver Licensing v. Malizio, 618 A.2d 1091, 1094 (Pa. Cmwlth. 1992) (citing Wilson v. Cmwlth., 417 A.2d 867 (Pa. Cmwlth. 1980)). The standard of reasonable grounds to support a license suspension does not rise to the level of probable cause required for a criminal prosecution. Banner v. Dep't of Transp., Bureau of Driver Licensing, 558 Pa. 439, 446, 737 A.2d 1203, 1207 (1999) (citing Vinansky v. Dep't of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995)). Reasonable grounds exist to support a license suspension when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the licensee was operating the vehicle while under the influence of intoxicating liquor. Stahr v. Dep't of Transp., Bureau of Driver Licensing, 969 A.2d 37, 40 (Pa. Cmwlth. 2009). Further, it is not necessary for a motorist to fail a field sobriety test in order for a police officer to have reasonable grounds to request a motorist to submit to a chemical test. DiPaolo v. Dep't of Transp., Bureau of Driver Licensing, 700 A.2d 569, 572 (Pa. Cmwlth. 1997) (citing McDonald v. Dep't Transp., Bureau of Driver Licensing, 567 A.2d 1127 (Pa. Cmwlth. 1989)).
Here, DOT notified Sisinni by letter dated September 29, 2010, that his operating privilege was being suspended for a period of one year pursuant to Section 1547 of the Code. (Certified Record (C.R.), Item No. 1, Exhibit A.) Sisinni filed a timely appeal with the trial court, and the trial court heard the matter de novo on January 6, 2011. (C.R., Item No. 6.) Officer Raymond Kain (Officer Kain), a long time officer of the City of Pittsburgh Police Department, testified on behalf of DOT. Licensee did not testify at the hearing.
Officer Kain testified that on August 15, 2010, he observed Sisinni's vehicle driving through a red light on East Carson Street, in Pittsburgh, Pennsylvania, and he effected a traffic stop. (Id. at 4-5.) Officer Kain detected a "slight odor of alcoholic beverage" on Sisinni, the driver and only passenger of the vehicle, and testified that his eyes were "red and glassy." (Id.) Thereafter, Officer
Kain asked Sisinni to step out of the car and perform a series of field sobriety tests. (Id. at 5.) Officer Kain administered the horizontal gaze nystagmus (HGN) test and observed that Sisinni had a "lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation." (Id.) Sisinni did not have any nystagmus prior to 45 degrees and had no vertical nystagmus. (Id.) Officer Kain testified that he also asked Sisinni to perform a walk-and-turn test and stand on one leg. (Id. at 5-6.) Sisinni passed both tests with no errors. (Id.)
Officer Kain testified that when he asked Sisinni if he had been drinking, Sisinni responded that he had two drinks. (Id. at 5.) Subsequent to the field sobriety tests, Officer Kain asked Sisinni to take a preliminary breath test.*fn2
Sisinni refused. (Id. at 6.) Officer Kain informed Sisinni that he was requesting the preliminary breath test because he (Officer Kain) viewed Sisinni as a "borderline case," and he wanted to assess whether Sisinni was over the legal limit. (Id.) When Sisinni refused the preliminary breath test, Officer Kain arrested Sisinni and took him to the police station for a post-arrest chemical test pursuant to Section 1547(a) of the Code, which Sisinni also refused. (Id.) Finally, Officer Kain testified that Sisinni had no balance issues, was not uncooperative, and was not disheveled. (Id. at 12-13.)
The trial court denied Sisinni's appeal, holding that DOT satisfied its initial burden through Officer Kain's testimony that there were reasonable grounds to request a chemical test. In so holding, the trial court reasoned that there was enough evidence to establish reasonable grounds based on: (1) the odor of alcohol, (2) Sisinni's glassy eyes, (3) Officer Kain's extensive experience in the police force, and (4) Sisinni's admission that he had been drinking. Therefore, the trial court determined that it was ...