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Ettelman v. Commonwealth, DOT, Bureau of Driver Licensing

Commonwealth Court of Pennsylvania

June 5, 2014

Aaron R. Ettelman
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

Submitted May 16, 2014.

Appealed from No. 2013-01171-LS. Common Pleas Court of the County of Chester. Judge Smith, J.

Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellant.

Charles G. Nistico, Media, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. PELLEGRINI, President Judge SIMPSON COVEY.

OPINION

Page 1260

DAN PELLEGRINI, President Judge

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from an order of the Court of Common Pleas of Chester County (trial court) sustaining the appeal of Aaron R. Ettelman (Licensee) from a one-year suspension of his operating privilege for refusing to submit to chemical testing in connection with his arrest for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. § 3802 (relating to driving under the influence (DUI) of alcohol or controlled substance).[1] For the reasons that follow, we reverse the trial court.

On January 12, 2013, a police officer of the East Brandywine Township Police Department stopped Licensee's vehicle in the 1200 block of Horseshoe Pike. After approaching the driver's side of the vehicle, the police officer detected the odor of alcohol emanating from the vehicle and asked Licensee if he had been drinking. Licensee admitted that he had been drinking, and the police officer administered three field sobriety tests, which Licensee failed to perform correctly. After failing to perform a sufficient breath test, the police officer placed Licensee under arrest for suspicion of DUI and transported him to Brandywine Hospital. At the hospital, Licensee refused to undergo chemical testing.

On February 1, 2013, Licensee received notice from PennDOT that his operating privilege was suspended for a period of one year, effective March 8, 2013, pursuant to Section 1547(b)(1)(i) of the Vehicle Code for refusal to submit to chemical testing. Licensee appealed to the trial court.

At the hearing, the police officer testified that while traveling east on Horseshoe Pike at approximately 1:30 a.m. on January 12, 2013, he observed a westbound vehicle passing him that did not have its taillights activated, so he turned his vehicle around and initiated a traffic stop. According to the police officer, he advised Licensee that he stopped him because his vehicle's taillights were not working, to which Licensee responded that his vehicle had automatic lights. The police officer stated that he then noticed that the switch in Licensee's vehicle was set to the automatic daytime running lights, which he explained was the reason that Licensee's taillights were not working. After determining that there were no outstanding warrants for Licensee, the police officer testified that he returned to Licensee's vehicle and detected the odor of alcohol. He testified that he administered three field sobriety tests, which Licensee failed

Page 1261

to perform correctly, and then asked Licensee to submit to a portable breath test. The police officer testified that he gave Licensee three chances to give a sufficient breath test, but Licensee was uncooperative, blowing through his nose instead of through his mouth. He testified that he then placed Licensee under arrest for suspicion of DUI and transported him to the hospital, where he read Licensee the implied consent form " word for word" and advised him that it would be in his best interests not to refuse chemical testing. (April 11, 2013 Hearing Transcript at 8). However, according to the police officer, Licensee repeatedly refused to undergo chemical testing. On cross-examination, the police officer admitted that the affidavit of probable cause did not reference the conversation he had with Licensee about the light switch in his vehicle or Licensee's alleged refusal to submit to chemical testing at the hospital.

Licensee testified that his vehicle's headlights were " definitely" on, explaining that " [i]t was one of the foggiest nights I remember ... [a]nd if I did not have my headlights on, I would not have been able to see adequately." ( Id. at 20). He further explained that " when the headlights are on, the taillights are on." ( Id.) Licensee denied purposefully blowing through his nose when taking the breath test. He testified that after being placed under arrest, he did not recall the police officer asking him to sign ...


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