Driver’s License Suspension; Implied Consent Law; Actual Physical Control of Movement of Vehicle
Bold v. Pa. Dep’t of Transp., Bureau of Driver Licensing, 285 A.3d 970 (Pa. Cmwlth. 2022), allocatur granted May 16, 2023, appeal docket 36 MAP 2023
The Pennsylvania Supreme Court will consider whether the inference that a vehicle was driven while a motorist was intoxicated, although the motorist was not driving but passed out behind the wheel, constitutes reasonable grounds under the Implied Consent Law to require the motorist submit to chemical testing for driving under the influence.
Pennsylvania’s Implied Consent Law provides that:
General rule.–Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock).
75 Pa. C.S. § 1547 (emphasis added). Section 3802(a)(1) of the Vehicle Code states:
An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
75 Pa. C.S. § 3802(a)(1) (emphasis added).
This case arises from the Pennsylvania Department of Transportation’s (DOT) suspension of Thomas Bold’s (Bold or Licensee) license for failure to submit to a chemical test of his blood after being found intoxicated and passed out behind the wheel of a running vehicle in a parking lot. Commonwealth Court summarized the background as follows:
By notice mailed on February 5, 2020, DOT informed Licensee that it was suspending his operating privilege for 18 months, effective March 11, 2020, as the result of his failure to submit to chemical testing on January 25, 2020. Reproduced Record (R.R.) at 5a-8a. Licensee appealed his suspension to the trial court, and a de novo hearing was held on July 10, 2020. Id. at 3a-4a, 17a.
At the hearing, DOT submitted, inter alia, “[s]ub-exhibit” No. 4 to establish that Licensee was previously convicted in 2007 under Section 3802 of the Vehicle Code, 75 Pa. C.S. § 3802, for driving under the influence of alcohol or a controlled substance (DUI) and, therefore, was subject to an 18-month suspension of his operating privilege. R.R. at 19a (sub-exhibit No. 4 is part of DOT Exhibit C-1 in the Original Record (packet of certified documents)). DOT then presented the testimony of the arresting officer, Thomas Eugene Gelnett, of the Lower Allen Township Police Department, who was the sole witness to testify at the hearing.
Officer Gelnett testified that he was on patrol at the Capital City Mall on January 25, 2020, at 6:14 p.m., when he was dispatched to check on “a vehicle in the parking lot that was running with a gentleman passed out behind the wheel.” R.R. at 21a. He located the vehicle, which was unlocked and running, with the headlights on. Id. at 22a, 24a. He opened the driver’s side door and shut off the engine. Id. at 22a. Officer Gelnett then woke Licensee, who was in the driver’s seat, smelled of alcohol, and appeared “obviously intoxicated.” Id.
Officer Gelnett stated that the vehicle “was legally parked in a parking space” near the mall’s liquor store and a Primanti Brothers bar and restaurant. R.R. at 23a. Licensee told Officer Gelnett that he had been in Primanti Brothers watching a game, “and [that] he just [went] out to his truck and was sleeping in his truck [until] he thought he was able to drive home.” Id. at 24a. Officer Gelnett explained that Licensee had difficulty producing his driver’s license, registration, and proof of insurance. Officer Gelnett further explained that after asking for Licensee’s license, he asked Licensee to step out of the vehicle so Officer Gelnett could conduct field sobriety tests. Id. Officer Gelnett stated that Licensee could not follow instructions, was unsteady on his feet, and was very argumentative. Id. at 25a. Licensee refused to submit to a preliminary breath test and insisted that he was not driving. Id. Officer Gelnett responded that Licensee was sitting behind the wheel of a running vehicle and, thus, was in actual physical control of the vehicle. Id.
Officer Gelnett placed Licensee under arrest, read him the DOT Form DL-26 (DL-26) warnings, and asked if he would submit to a blood test. R.R. at 26a. Licensee agreed, but on the way to the hospital, he became argumentative and said he had questions. Officer Gelnett read the DL-26 warnings to Licensee a second time at the hospital, and Licensee again argued that he was not driving. Id. at 27a. Officer Gelnett told Licensee that if he continued to argue, it would be recorded as a refusal. Id. at 29a. Licensee continued to argue, and Officer Gelnett determined that Licensee had refused to submit to the chemical test. Id.
On cross-examination, Officer Gelnett confirmed that Primanti Brothers serves alcohol. R.R. at 30a. He agreed that it was dark and cold outside at the time that he was dispatched to Licensee’s vehicle. Id. at 31a. Officer Gelnett also agreed that there was no indication that Licensee drove or moved his vehicle that night, and that “[t]he indication was that he left … Primanti Brothers, got into his car[,] and turned his vehicle on[.]” Id. (emphasis added).
Slip op. at 2-4 (footnote omitted). Before the trial court, Bold argued that DOT could not prove that the officer had reasonable grounds to believe that Bold was in actual physical control of his vehicle while intoxicated, relying on Solomon v. Department of Transportation, Bureau of Driver Licensing, 966 A.2d 640 (Pa. Cmwlth. 2009), Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203 (Pa. 1999), and Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995).
The trial court held that the officer did not have reasonable grounds to believe that Bold was in control of the movement of the vehicle at the time of his arrest for DUI and thus sustained Bold’s appeal. In its opinion pursuant to Pa. R.A.P. 1925(a), the trial court explained that although Bold became intoxicated at Primanti Brothers and then went out to his vehicle, turned it on, and fell asleep behind the wheel, there was no evidence for the officer to infer that Bold drove the vehicle while intoxicated. In a footnote, the trial court “concede[d] that the facts clearly show that [ ] Licensee was in control of the ‘operation’ of the vehicle.” Slip op. at 5, quoting Pa. R.A.P. 1925(a) op. at n.6. DOT appealed. Commonwealth Court summarized the parties’ arguments as follows:
[DOT] argues that the trial court erred as a matter of law in holding that Officer Gelnett did not have reasonable grounds to believe that Licensee was operating or in actual physical control of the movement of his vehicle while he was intoxicated. Brief for Appellant at 14. DOT asserts that, although Officer Gelnett testified that he did not believe Licensee had driven his vehicle while intoxicated, Officer Gelnett still had reasonable grounds to believe that Licensee was in actual physical control of the movement of the vehicle while he was intoxicated, because Officer Gelnett credibly testified that he found Licensee passed out in the driver’s seat of his vehicle, he was “obviously intoxicated,” the key was in the ignition, the vehicle’s engine was running, and the headlights were on. Brief for Appellant at 18. As such, DOT contends that Licensee had the ability to put the vehicle in motion at any time and, thus, was operating or in actual physical control of the movement of the vehicle. DOT claims that this Court’s decision in Vinansky supports its case, Brief for Appellant at 18-20, and that Solomon, upon which both the trial court and Licensee relied, is distinguishable. DOT also points out that this Court’s decision in Gammer v. Department of Transportation, Bureau of Driver Licensing, 995 A.2d 380 (Pa. Cmwlth. 2010), further distinguishes Solomon from this case.
In response, Licensee argues that the trial court was correct in determining that Officer Gelnett lacked reasonable grounds to believe that Licensee was in actual physical control of the vehicle while intoxicated. Licensee analogizes the facts of this case to those found in Solomon and appears to focus his argument on the premise that Officer Gelnett lacked reasonable grounds because there was no objective evidence that Licensee drove his vehicle while intoxicated. Brief for Appellee at 3 (citing Solomon and Gammer). He claims that absent such evidence, the totality of the circumstances indicated that Licensee was simply “sleeping off his alleged intoxication” following his visit to Primanti Brothers. Id. at 3-4.
Slip op. at 5-7 (footnote omitted).
Commonwealth Court held that the officer had reasonable grounds to believe that Bold was in actual physical control of his vehicle while intoxicated, therefore the request that Bold undergo chemical testing was proper even though Bold was not actually driving. In so holding, Commonwealth Court distinguished Solomon, reasoning that:
… Solomon can be distinguished from this case in the same manner it was distinguished by the Court in Gammer, 995 A.2d 380. In Solomon, a police officer discovered the licensee at approximately 3:00 a.m., in January, asleep in the reclined driver’s seat of his car, which was parked in a driving lane across the street from a gentlemen’s club. Although the car was running at the time, it was undisputed that it was cold and snowy that night. The arresting officer testified that he stopped because the licensee’s car was parked in the driving lane, but on cross-examination, he testified that it was common for patrons of the club to park there. Based on the above facts, the common pleas court found that the officer did not have reasonable grounds to believe that the licensee was operating or in actual physical control of the movement of his vehicle while intoxicated. On appeal, this Court affirmed the common pleas court’s finding, concluding that, given the totality of the circumstances, the evidence fell short of proving that the licensee exercised control over the movement of the vehicle while he was intoxicated. Solomon, 966 A.2d at 642.
In Gammer, a police officer discovered the licensee’s vehicle running in the back of a motel parking lot near the dumpsters. The licensee was seated in the driver’s seat but was slouched over the passenger seat, and he appeared to be either asleep or unconscious. The officer also knew the licensee because the officer had arrested him twice before for DUI, so the officer called for backup and another officer arrived. The common pleas court found the officers’ testimony credible and held that the licensee was in actual physical control of the vehicle. On appeal, we agreed with the common pleas court that the officers had reasonable grounds to believe that the licensee was in actual physical control of the vehicle. We stated that “[g]enerally, the motorist’s presence in the driver’s seat of the vehicle with the engine on has been deemed sufficient to satisfy the reasonable grounds test.” Gammer, 995 A.2d at 384. We also observed that relevant case law makes “clear that the reasonable grounds test is satisfied when a police officer discovers … a motorist slumped over in the driver’s seat of the vehicle with the engine running while the vehicle is parked in a legal parking space in a parking lot.” Id.
Slip op. at 9-11. Nonetheless, the court held that to the extent Solomon “compels a different result herein, it is expressly overruled,” quoting the court’s 2021 decision in Hambright v. Department of Transportation, Bureau of Driver Licensing:
The case relied upon by [the trial court], Solomon, is not only an outlier[,] but is distinguishable. There, the motorist was found sleeping in a reclined driver’s seat and the Court found significant that, although the engine was running, it was a cold and snowy night. [Similarly, in Banner, where our Supreme Court found a lack of reasonable grounds, the motorist was reclined in the passenger’s seat and the engine was turned off.]
Here, [the trial court] credited [the police officer’s] testimony that [the licensee] was passed out and slumped over the wheel in the driver’s seat of his vehicle with the engine running, which caused [the officer] to conclude that he had been in physical control of the movement of his vehicle while intoxicated. This satisfies the test for reasonable grounds utilized by the controlling case[ ]law and, accordingly, we reverse.
Slip op. at 11, citing Hambright, 2021 WL 4513669 (Pa. Cmwlth. 2021) (emphasis added by Bold court). Thus, Commonwealth Court reversed the trial court, concluding that:
Applying the above principles here, we hold that the trial court erred as a matter of law in determining that Officer Gelnett lacked reasonable grounds to believe that Licensee was in actual physical control of the movement of the vehicle. Officer Gelnett testified that he found Licensee passed out in the driver’s seat of his car parked outside Primanti Brothers in the Capital City Mall parking lot, slumped over the wheel with the engine running and headlights on. R.R. at 21a-24a. Pursuant to Gammer, these facts alone are sufficient to satisfy the reasonable grounds test. See Gammer, 995 A.2d at 384. Officer Gelnett also testified that he had to open the driver’s side door, which was unlocked, shut off the engine, and then wake Licensee. R.R. at 22a, 24a. Officer Gelnett stated that once Licensee awoke, he immediately smelled alcohol on Licensee’s breath and observed that Licensee appeared “obviously intoxicated.” Id. at 22a. Officer Gelnett further observed that Licensee had difficulty producing his driver’s license, registration, and proof of insurance, and that Licensee could not follow instructions with regard to field sobriety testing, was unsteady on his feet,10 and was argumentative. Id. at 24a-25a. Licensee also refused chemical testing, insisting instead that he had not driven. Id. at 25a-26a. The above facts are sufficient to have given Officer Gelnett reasonable grounds to believe that Licensee was in actual physical control of his vehicle while intoxicated.
Our precedent has often conflated the term “operates” with the phrase “is in actual physical control of the movement of a vehicle,” as used in Section 1547(a) of the Vehicle Code. This conflation has engendered confusion in license suspension implied consent cases concerning the issue presented herein, i.e., whether an arresting officer has reasonable grounds to believe that a licensee was in actual physical control of the movement of a vehicle, where the arresting officer testifies, and the facts indicate, that the licensee had not been driving. In an effort to eliminate this confusion, we hold that because Officer Gelnett had reasonable grounds to believe that Licensee was in actual physical control of his vehicle while intoxicated, despite the fact that Licensee was not driving, Officer Gelnett properly requested that Licensee undergo chemical testing.
Slip op. at 12-13 (footnote omitted).
In dissent, Judge Leavitt, joined by Judge McCullough and Judge Fizzano Cannon, summarized the relevant precedent interpreting Section 1547 as providing that “where an intoxicated person is found in a stationary vehicle located in a parking lot with the motor running, there must be evidence that the vehicle had been driven by that person (and in that state) prior to discovery by a police officer,” although such “evidence need not be direct or very copious.” Slip op. at MHL-6. The dissent disagreed with the majority’s framing of the issue, opining that:
The majority asserts that “this case involves the issue of whether the arresting officer has reasonable grounds for requesting that Licensee submit to chemical testing.” Bold v. Department of Transportation, Bureau of Driver Licensing, 285 A.3d 970 (Pa. Cmwlth., No. 784 C.D. 2020, filed November 21, 2022), slip op. at 6, n.7. In actuality, this case is about whether the arresting officer had reasonable grounds to believe Licensee had violated Section 3802 of the Vehicle Code, the precondition to a demand for chemical testing. The majority does not give effect to the final phrase in Section 1547(a), i.e., “violation of section … 3802 (relating to driving under influence of alcohol or controlled substance)[.]” 75 Pa. C.S. § 1547(a). As definitively construed in Byers, 650 A.2d 468, this violation requires movement of the vehicle by an intoxicated person. Although “decisions of our sister Superior Court are not binding upon this Court, we always give great deference to their persuasive wisdom and logic[.]” In re Superior-Pacific Fund, Inc., 693 A.2d 248, 253 (Pa. Cmwlth. 1997). It is the Superior Court, not this Court, that determines what conduct violates Section 3802 of the Vehicle Code. Further, this Court expressly adopted the Superior Court construction of the 1982 amendment. Bendik, 535 A.2d at 1251.
Slip op. at MHL-11. Finding that “vehicle motion is the sine qua non of the offense,” the dissent concluded that:
The majority departs from a long line of precedent from this Court, Solomon, 966 A.2d 640; from the Superior Court, Byers, 650 A.2d 468; and from the Supreme Court, Banner, 737 A.2d 1203. It may be that for an intoxicated person to sit in the driver’s seat of a vehicle standing still in a parking lot, but with the motor on, presents a danger to the public safety because vehicle movement can be initiated with little effort. However, it is for the legislature to make that decision. It has been 40 years since the phrase “actual physical control of the movement of a vehicle” was added to the Vehicle Code, but the General Assembly has chosen not to further amend the statute.
Slip op. at MHL-11.
The Pennsylvania Supreme Court will consider the following issue, as stated by Bold:
Did the Commonwealth Court err by ignoring the controlling decisions of this Court in holding that vehicle movement by the impaired operator is not required to trigger Section 3802 and Section 1547 of the Vehicle Code[?]
For more information, contact Kevin McKeon or Dennis Whitaker.