F. Habte-DeJesus v. PennDOT, Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Feben Habte-DeJesus :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 1478 C.D. 2021

Appellant : Submitted: June 3, 2025

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE FIZZANO CANNON1 FILED: October 17, 2025

The Commonwealth of Pennsylvania, Department of Transportation,

Bureau of Driver Licensing (Department) appeals from a December 13, 2021 order

of the Court of Common Pleas of Philadelphia County (Common Pleas) that reversed

a driver’s license suspension imposed by the Department against Feben Habte-

DeJesus (Licensee). After thorough review, we conclude that the Department failed

to sustain its burden of demonstrating that the police had a reasonable belief that

Licensee had been driving, operating, or in control of the movement of her motor

vehicle while intoxicated. Accordingly, we affirm Common Pleas’ order.

I. Background

At 1:00 a.m. on October 5, 2019, a police officer noticed Licensee

asleep in her vehicle, which was legally parked in a parking space in the 3600 block

of Chestnut Street in Philadelphia with the motor running. Reproduced Record (RR)

1

This opinion was reassigned to the author on August 15, 2025.

at 33a & 37a-38a. When questioned, Licensee stated she had been at a bar about

four blocks from where her car was parked. Id. at 35a. Based on his observation of

indicia of intoxication, the officer arrested Licensee for driving under the influence

of alcohol (DUI). Id. The arresting officer testified at a de novo hearing before

Common Pleas that he did not know how long Licensee’s vehicle had been parked

in the parking space before he approached her. Id. at 36a.

At the Common Pleas hearing, Licensee testified that she requested a

breath test instead of a blood test, but the police officer on duty for chemical testing

on the night in question did not recall hearing her make such a request. RR at 43a

& 52a-53a. In any event, it is undisputed that Licensee refused to consent to a blood

draw. Id. at 41a. Nonetheless, Common Pleas sustained Licensee’s appeal of her

license suspension. RR at 82a. In its subsequent opinion pursuant to Rule

1925(a)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a)(1),2

Common Pleas explained that its decision was based on the facts that Licensee’s

vehicle was legally parked, that there was no alcohol in the vehicle and no odor of

alcohol on Licensee’s person, and that there was no evidence regarding the

performance of field sobriety tests prior to Licensee’s arrest. RR at 82a.

2

Rule 1925(a)(1) requires, in pertinent part, that

upon receipt of the notice of appeal, the judge who entered the order

giving rise to the notice of appeal, if the reasons for the order do not

already appear of record, shall . . . file of record at least a brief

opinion of the reasons for the order, or for the rulings or other errors

complained of . . . .

Pa.R.A.P. 1925(a)(1).

2

II. Issue

On appeal,3 the Department argues that the arresting officer had

reasonable grounds to believe that Licensee was driving, operating, or in actual

physical control of the movement of her vehicle while under the influence of alcohol.

The Department bases its argument only on the officer’s observation of indicia of

intoxication. In other words, the Department argues only that there were reasonable

grounds to believe Licensee was intoxicated. The Department does not argue that

there were reasonable grounds to believe that Licensee was driving, operating, or in

actual physical control of the movement of her vehicle.

III. Discussion

Section 1547(a) and (b) of the Vehicle Code4 provides, in pertinent part:

(a) 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).

3

An appellate court’s review in a license suspension case is limited to determining whether

the factual findings of the trial court are supported by substantial evidence and whether the trial

court committed an error of law or an abuse of discretion. Bold v. Dep’t of Transp., Bureau of

Driver Licensing, 320 A.3d 1185, 1191 (Pa. 2024) (Bold II).

4

75 Pa.C.S. §§ 101 - 9805.

3

....

(b) Civil penalties for refusal.--

(1) If any person placed under arrest for a violation

of section 3802 is requested to submit to chemical

testing and refuses to do so, the testing shall not be

conducted but upon notice by the police officer, the

department shall suspend the operating privilege of

the person . . . .

75 Pa.C.S. § 1547(a) & (b) (emphasis added). At issue in this appeal is whether the

police had reasonable grounds to believe Licensee had been “driving, operating or

in actual physical control of the movement of” her vehicle prior to her interaction

with police. Id. Thus, the meaning of “driving, operating or in actual physical

control of the movement of a vehicle” is critical to the disposition of this appeal.

Recently, in Bold v. Department of Transportation, Bureau of Driver

Licensing, 320 A.3d 1185 (Pa. 2024) (Bold II),5 the Pennsylvania Supreme Court

considered the meaning of Section 1547(a) in an analogous situation. In Bold II, the

licensee was found unconscious behind the wheel of his vehicle, which was legally

parked in a mall parking lot near a bar. Id. at 1187. It was a cold night; the engine

was running and the headlights were on. Id. Bold admitted he had been drinking in

the nearby bar but explained that he had intended to sleep in his car until he was

sober enough to drive home safely. Id. There was no evidence that he had driven

or moved his vehicle while he was intoxicated. Id. at 1188. He refused to consent

to a blood draw, and his license was subsequently suspended. Id. at 1187.

In Bold II, as here, the issue was whether the police had reasonable

grounds to believe that the licensee had been operating or in actual physical control

of the movement of his vehicle. Bold II, 320 A.3d at 1188. Observing that a “muddle

5

In Bold II, our Supreme Court reversed this Court’s decision in Bold v. Department of

Transportation, Bureau of Driver Licensing, 285 A.3d 970 (Pa. Cmwlth. 2022) (en banc) (Bold I).

4

of case law” existed in courts’ applications of the language of Section 1547(a), our

Supreme Court “underscore[d] the importance of allowing statutes, not layers of case

law, to determine outcomes in matters of statutory interpretation.” Id. at 1191.

The Supreme Court then analyzed the language of Section 1547(a).

First, the Court observed that “‘[o]perate’ plainly encompasses ‘driving,’ and

arguably subsumes ‘actual physical control of the movement of a vehicle’ as well.

Once a car moves under a person’s control, it clearly has been operated[.]” Bold II,

320 A.3d at 1194. Stated otherwise, “‘[o]perate’ has a plain meaning that all but

necessarily enfolds the other two terms” and thereby “creates textual surplusage on

any plausible account.” Id. at 1195. The Court then reasoned that

applying a plain language approach just to the word

“operates” . . . raises the prospect of an absurd result. If

any actuation of a car constitutes operating that vehicle,

then any movement of its machinery, simple or complex,

qualifies – from opening the door to rolling down the

window, turning on the radio, or even opening the glove

compartment.[] Nothing could be more absurd than

subjecting a driver to chemical testing – and, for that

matter, conviction of DUI – simply for lowering a window

in the heat of summer.

[I]f we interpret Section 1547, and by extension Section

3802, [75 Pa.C.S. § 3802 (prohibiting drunk driving),] in

a way that necessarily proscribes “sleeping it off” on a

cold January night in a car running to keep the interior

warm, we encourage hypothermia – or the sort of bad

decision-making those sections exist to deter.

The Commonwealth is trying to encourage

intoxicated people to “sleep it off” before

attempting to drive, yet it wants us to punish [a

licensee] for doing just that. The case is only one

example of the illogical and inconsistent results we

would see if this Court were to adopt a per se rule

that found a defendant guilty of drunk driving for

merely starting his car. Under such a mechanical

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application, if [a licensee] had left the bar to call a

cab using a cellular phone in his car, and needed to

start the car to power the phone, the Commonwealth

could charge him with drunk driving. This result

would punish an individual for attempting to

comply with the law.

Id. at 1195-96 (footnotes omitted) (quoting Commonwealth v. Byers, 650 A.2d 468,

471 (Pa. Super. 1994)). The Court then reiterated its holding in Banner v.

Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203 (Pa.

1999), stating:

As in Banner, we again hold:

In determining whether an officer had reasonable

grounds to believe that a motorist was in actual

physical control of a vehicle, the court must

consider the totality of the circumstances, including

the location of the vehicle, whether the engine was

running and whether there was other evidence

indicating that the motorist had driven the vehicle at

some point prior to the arrival of the police.[]

This test must be applied in a fashion that honors the line

we cited “distinguish[ing] circumstances where a motorist

is driving his vehicle while under the influence of alcohol,

which the statute is intended to prevent, and circumstances

where a motorist is physically present in a motor vehicle

after becoming intoxicated.”[]

Bold II, 320 A.3d at 1200 (footnotes omitted) (quoting Banner, 737 A.2d at 1207-

08).

We conclude that our Supreme Court’s holding in Bold II is controlling

here.6 Licensee was legally parked in a parking space in downtown Philadelphia

6

We observe that the Department’s brief cites decisions predating Bold II, including this

Court’s decision in Bold I, which our Supreme Court reversed in Bold II. See Dep’t Br. at 20-22

(first citing Gammer v. Dep’t of Transp., Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa.

Cmwlth. 2010) (reasonable grounds where vehicle was parked next to motel dumpsters with

6

only about four blocks from the bar she had visited. Under the totality of the

circumstances, there was nothing to indicate the Licensee had been driving her

vehicle while under the influence of alcohol, rather than simply being physically

present in a motor vehicle after becoming intoxicated. See Bold II, 320 A.3d at 1200.

Notably, Common Pleas based its analysis on the absence of indicia of

intoxication and did not specifically opine on whether Licensee was driving,

operating, or in actual physical control of the movement of her vehicle. See RR at

108a. On appeal, the Department similarly argues that there were reasonable

grounds to believe Licensee was intoxicated. This Court, however, need not rely on

the reasoning of Common Pleas, but rather, “may affirm an order for any reason,

regardless of [Common Pleas’] rationale, so long as the basis for our decision is clear

on the record.” Reardon v. Dep’t of Transp., Bureau of Driver Licensing, 935 A.2d

engine running at 1:00 a.m.; opining 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 . . .” even “while the vehicle is parked in a legal parking space in a parking lot”); then citing

Vinansky v. Dep’t of Transp., Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995)

(reasonable grounds where vehicle was parked in a parking lot with engine running); then citing

Polinsky v. Dep’t of Transp., 569 A.2d 425, 427 (Pa. Cmwlth. 1990) (reasonable grounds where

licensee was inside vehicle was parked beside restaurant pickup window with lights on and ignition

in “on” position); then citing Bold I; then citing Riley v. Dep’t of Transp., Bureau of Driver

Licensing, 946 A.2d 1115, 1120-21 (Pa. Cmwlth. 2008) (reasonable grounds where licensee was

in driver’s seat of vehicle parked by the side of a road with headlights on and engine running);

then citing Dep’t of Transp., Bureau of Driver Licensing v. Paige, 628 A.2d 917 (Pa. Cmwlth.

1993) (reasonable grounds where driver was slumped over the steering wheel with the key in the

ignition and the parking lights on); and then citing Dep’t of Transp., Bureau of Traffic Safety v.

Farner, 494 A.2d 513 (Pa. Cmwlth. 1985) (first impression case regarding actual physical control

of the movement of a motor vehicle; reasonable grounds where the driver was parked in the driving

lane 28 inches from the curb with the engine running and his foot on the brake, although the

transmission was in park)). Some of the cited decisions may be distinguishable because, as the

above parenthetical descriptions indicate, it is not clear whether some of them involved vehicles

that were legally parked, e.g., beside a restaurant pickup window or along the side of the road.

Nonetheless, to the extent those decisions can be read as concluding that control of a vehicle’s

movement could be properly inferred merely from the licensee’s presence behind the wheel of a

legally parked car while intoxicated, they are no longer valid in light of Bold II.

7

63, 64 n.1 (Pa. Cmwlth. 2007) (citing Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903

A.2d 608 (Pa. Cmwlth. 2006)). Because we conclude that the record fails to contain

competent or substantial evidence to sustain the Department’s burden to establish

that Licensee was driving, operating, or in actual physical control of the movement

of her vehicle within the meaning of Section 1547(a) as construed by our Supreme

Court in Bold II, we affirm Common Pleas’ order.

IV. Conclusion

Based on the foregoing discussion, the order of the Court of Common

Pleas is affirmed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Feben Habte-DeJesus :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 1478 C.D. 2021

Appellant :

ORDER

AND NOW, this 17th day of October, 2025, the order of the Court of Common

Pleas of Philadelphia County dated December 13, 2021 is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Feben Habte-DeJesus :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, : No. 1478 C.D. 2021

Appellant : Submitted: June 3, 2025

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

DISSENTING OPINION BY

JUDGE WOLF FILED: October 17, 2025

The Majority, as did the Court of Common Pleas of Philadelphia

County (trial court) below, establishes a new standard for licensees in driving under

the influence (DUI) suspension cases. That is, where police officers have reasonable

grounds to believe that a licensee is driving under the influence, the Court may later

give the licensee the benefit of the doubt. This new “benefit of the doubt” standard

is neither supported by the law nor supported by precedent.

This is a case where police officers came upon Feben Habte-DeJesus

(Licensee) sleeping behind the wheel of a running vehicle in a parking spot where

the Licensee appeared heavily under the influence. After waking up, Licensee

indicated she had come from a bar four blocks away. There are two reasonable

scenarios presented. One, that Licensee left the bar intoxicated and walked four

blocks to her parked car, turned it on, and fell asleep. The other, that she drove from

the bar intoxicated, parked the car, and fell asleep. Here, the Majority gives Licensee

the benefit of the doubt that she had not operated the vehicle. That presents a new

standard under the law. Because I differ in my opinion on this matter from my

learned colleagues as well as the well-respected trial court below, I respectfully

dissent.

More specifically, during the suspension appeal hearing before the trial

court, Officer Kincaid testified that he made contact with Licensee at 1:00 a.m. on

October 5, 2019, when he noticed her asleep behind the wheel of a running silver

2015 Toyota Camry parked legally on the 3600 block of Chestnut Street in

Philadelphia. Believing that she may be having a medical episode, Officer Kincaid

radioed for rescue services. While awaiting rescue services, Officer Kincaid entered

the passenger side of the vehicle to turn it off. Officer Kincaid further testified that

he spoke to Licensee, and noticed that she had “heavily-slurred, incoherent speech”

and “watery, glossy eyes.” Reproduced Record (R.R.) at 34a. He also testified that

she was “unable to state where she was, where she was going, and where she had

been.” Id. When asked whether he had detected the odor of any illicit substance,

Officer Kincaid testified that he had not. Officer Kincaid testified that he asked

Licensee if she had consumed any alcohol but did not recall her response. However,

he did recall that Licensee stated she had come from “the Landmark, which is a bar

roughly four blocks away” from where he had encountered her. Id. at 35a. Officer

Kincaid testified that based on everything he had seen and observed, he believed

Licensee was under the influence of alcohol and proceeded to arrest her on suspicion

of DUI.

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In these kinds of cases, the question before the Court1 is whether the

circumstances described above gave the officer “reasonable grounds to believe” that

Licensee was “operating or in actual physical control of the movement” of her

vehicle at the time of, or before, her interaction with the officer. Bold v. Dep’t of

Transp., Bureau of Driver Licensing, 320 A.3d 1185, 1188 (Pa. 2024) (Bold II).

“Driver’s license suspension proceedings are civil, not criminal in nature, and the

Department must prove the elements of its case by a preponderance of the evidence,

and not beyond a reasonable doubt.” Pettit v. Dep’t of Transp., Bureau of Driver

Licensing, 315 A.3d 268, 278-79 (Pa. Cmwlth. 2024) (citing Yi v. Dep’t of Transp.,

Bureau of Driver Licensing, 646 A.2d 603 (Pa. Cmwlth. 1994)).

Thus, the Court need not “definitively conclude” operation under the

influence as the trial court alluded to. And in light of this burden, where the test for

reasonable grounds is not very demanding, and it is not necessary for the police

officer to be correct in his or her belief,2 the Majority’s contention that “there was

nothing to indicate the Licensee had been driving her vehicle while under the

influence of alcohol” is troubling because it ignores that Ms. DeJesus was apparently

intoxicated, was behind the wheel of a vehicle which was on, and said that she had

come from a bar. The Bureau does not have the burden to show “definitively” that

the licensee had been driving her vehicle while under the influence. Rather, the

1

The trial court stated the issue before the court: “The issue is whether the police officer had

reasonable grounds to believe that Ms. DeJesus had been operating her vehicle under the influence

of alcohol.” Rule 1925(a) Opinion at 3. After reviewing the facts, the trial court concluded: “[N]o

reasonable person could have definitively concluded that the motorist was operating the vehicle

under the influence of alcohol.” Id. at 4. DUI is not limited to the use of alcohol and while this

driver appeared impaired to the officer, the officer did not smell alcohol, R.R. 34a, and even more

notable, Ms. DeJesus, while refusing a blood draw, offered to give a breath test, R.R. 52a.

2

Dep’t of Transp., Bureau of Driver Licensing v. Bird, 578 A.2d 1345, 1348 (Pa. Cmwlth.

1990).

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Bureau only has the burden to show that the arresting officer had reasonable grounds

to believe that licensee had operated her vehicle while under the influence—this

distinction is important. Here, there are objective indicia to support the

reasonableness of the officer’s belief, which amounts to seeing a passed-out driver

exhibiting intoxication who says she came from a bar.

Unlike the trial court and the Majority, I would hold that Officer

Kincaid was reasonable in his belief that Licensee had recently been in actual control

of her motor vehicle (beyond simply sitting in the driver’s seat of the parked vehicle

with the engine running). We can distinguish the instant case from Bold II and its

progeny. In Bold II, the licensee was encountered by police in the driver’s seat of

his vehicle, which was parked and running in the parking lot directly adjacent to the

establishment in which he admitted to drinking. Bold II, 320 A.3d at 1187.

Recognizing he was too intoxicated to drive safely, the licensee chose to sleep in his

vehicle in the parking lot with the engine running for heat (it was a cold night in

January) until he was fit to drive home safely and legally. Id.3

In contrast to the factual circumstances in Bold II, Licensee in the

instant matter was encountered four blocks away from the bar which she stated she

had come from. One reasonable interpretation is that she drove from the bar to the

location where Officer Kincaid encountered her parked vehicle where she was

passed out. While there are other reasonable explanations for how Licensee came

3

See also Muehlen v. Dep’t of Transp., Bureau of Driver Licensing, slip op. (Pa. Cmwlth. No.

64 C.D. 2024, filed June 12, 2025), slip op. at 7, 2025 WL 1662338, and Stewart v. Dep’t of

Transp., Bureau of Driver Licensing, (Pa. Cmwlth. No. 359 C.D. 2022, filed January 27, 2025),

slip op. at 2-3, 2025 WL 301841. In each of these cases, like in Bold II, the licensees were

encountered in their vehicles in the parking lot outside the establishment in which they had been

drinking. Note that pursuant to Section 414(a) of this Court’s Internal Operating Procedures,

unreported opinions of this Court, such as these, may be cited for their persuasive value. 210 Pa.

Code § 69.414(a).

MSW-4

to be in her parked vehicle blocks from the bar (such as having walked from the bar

to her car, as the Majority contends), those alternatives are immaterial. See Gammer

v. Dep’t of Transp., Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth.

2010) (“It is immaterial whether alternative reasonable explanations for how the

motorist came to be as he was found exist.”). Where there exist facts from which

two reasonable alternative scenarios can be surmised from circumstantial evidence,

it is not within the purview of this Court or the trial court to supplant the judgment

of the officer with its own, so long as the officer’s interpretation was reasonable.

Accordingly, I would hold that the trial court erred in determining that Officer

Kincaid lacked reasonable grounds to suspect Licensee was DUI. Certainly, he did

not have to “definitively conclude” that Ms. DeJesus was operating or had been

operating the vehicle impaired.

The Majority ultimately determines that when an officer finds an adult

passed out behind the wheel of a car parked four blocks from a bar the adult says,

while exhibiting signs of intoxication, they came from, that it is unreasonable for the

officer to believe the adult had operated the car under the influence.

I disagree. I think it is both reasonable to believe she walked to the car

and it is also reasonable to believe she drove to the parking space from the bar. To

the extent there are “alternative reasonable explanations” for how the licensee came

to be how and where they are, it is within the officer’s discretion to choose which to

believe, so long as it is reasonable. See Gammer, 995 A.2d at 384. The Majority’s

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decision requires officers to give the benefit of the doubt to the licensee which is

contrary to both law and precedent. For these reasons, I would reverse.

_____________________________________

MATTHEW S. WOLF, Judge

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