J.T. Olt v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey T. Olt, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing : No. 1653 C.D. 2018

:

Jeffrey T. Olt, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 1654 C.D. 2018

Bureau of Driver Licensing : Submitted: June 21, 2019

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: August 15, 2019

Jeffrey T. Olt (Licensee) appeals from the Schuylkill County Common

Pleas Court’s (trial court) November 13, 2018 order denying and dismissing his

operating privilege suspension and disqualification appeals from the Commonwealth

of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

(Department). Licensee presents two issues for this Court’s review: (1) whether the

trial court erred by permitting a testifying witness to describe out-of-court statements

made by a non-testifying witness; and (2) whether the trial court erred by dismissing

Licensee’s appeals because the arresting officer erroneously utilized a breath testing

form to obtain blood test consent, and contradicted his direct testimony and the

Department’s certified documents. After review, we affirm.

On January 4, 2018, Pennsylvania State Police Troopers Stephen

Kleeman (Trooper Kleeman) and Jeffrey Hummel (Trooper Hummel) (collectively,

Troopers) were separately dispatched for a reported disturbance involving a pick-up

truck operator. They proceeded to Olt’s Trucking, the business to which the truck

was registered.

While at Olt’s Trucking, Licensee approached the Troopers at moderate

speed in a utility truck, stopped the vehicle, and began an aggressive interaction with

the Troopers. Specifically, Licensee threatened to kill Trooper Hummel and his

family, referred to him as “Howard Stern,” and accused him of stealing Licensee’s

red beet eggs. Reproduced Record (R.R.) at 190a. During the interaction, Licensee

backed up the vehicle and then pulled forward at a high rate of speed in Trooper

Hummel’s direction, leading Trooper Hummel to believe Licensee was going to

strike him. Trooper Hummel drew his weapon. Licensee stopped the vehicle, hid

behind the door, reiterated to Trooper Hummel that he was going to kill him and his

family, and lectured him about drawing his weapon.

Trooper Hummel observed that Licensee appeared agitated and

confused, his eyes were glossy, and his speech was slurred. Although the Troopers

believed that Licensee might be impaired, they did not detect an odor of alcohol on or

around him. Licensee got back into his vehicle and left the property. Believing that

Licensee should not be driving in his condition, the Troopers pursued Licensee with

their lights and sirens activated, but Licensee did not stop. During the pursuit,

Licensee traveled on both sides of the roadways and drove through a stop sign. The

2

chase1 ended when Licensee ran his vehicle off the road. Because Licensee refused

to get out of his vehicle, the Troopers forcibly removed him.

Once Licensee was in custody, Trooper Kleeman asked Pennsylvania

State Police drug recognition expert Corporal Rymarkiewicz (Corporal

Rymarkiewicz) to proceed to the Pennsylvania State Police barracks to conduct a

drug recognition evaluation (DRE) on Licensee because he believed that “something

was going on” with Licensee. R.R. at 34a. As Trooper Hummel transported

Licensee to the barracks, Licensee continued to refer to Trooper Hummel as “Howard

Stern,” and asked Trooper Hummel why he did not remember him from computer

classes they took together, despite that Trooper Hummel had not taken any computer

classes. Based on Trooper Hummel’s experience, he believed that Licensee “was

certainly under the influence” and that “he was certainly impaired of some sort of . . .

narcotic or prescription drug; and . . . was incapable of safely driving . . . .” R.R. at

75a-76a.

When Trooper Kleeman returned to the barracks, he learned that

Licensee was being uncooperative. Trooper Kleeman spoke with Licensee and

explained that although he did not smell alcohol on Licensee, he felt that a DRE was

warranted based on Licensee’s combative and nonsensical in-custody behavior during

the incident. Corporal Rymarkiewicz conducted Licensee’s DRE in Trooper

Kleeman’s presence. Based on Trooper Kleeman’s observations, and those of

Corporal Rymarkiewicz, Trooper Kleeman concluded that further testing was

warranted. Accordingly, Trooper Kleeman advised Licensee that he was under arrest

for suspected driving under the influence, and he read Licensee the implied consent

1

Although Licensee was traveling at low speed, the roads were snowy and icy, and Trooper

Hummel believed Licensee was driving too fast for those conditions.

3

warnings (DL-26 Form).2 The DL-26A Form (DL-26A Form) contained the

following warnings:

1. You are under arrest for driving under the influence of

alcohol or a controlled substance in violation of Section

3802 of the Vehicle Code[, 75 Pa.C.S. § 3802].

2. I am requesting you to submit to a chemical test of

breath.

3. If you refuse to submit to the breath test, your operating

privilege will be suspended for at least 12 months. If you

previously refused a chemical test or were previously

convicted of driving under the influence, your operating

privilege will be suspended for up to 18 months. If your

operating privilege is suspended for refusing chemical

testing, you will have to pay a restoration fee of up to

$2,000[.00] in order to have your operating privilege

restored. In addition, if you refuse to submit to the breath

test, and you are convicted of violating Section 3802(a)(1)

(relating to impaired driving) of the Vehicle Code, then,

because of your refusal, you will be subject to more severe

penalties set forth in Section 3804(c) (relating to penalties)

of the Vehicle Code. These are the same penalties that

would be imposed if you were convicted of driving with the

highest rate of alcohol, which include a minimum of 72

consecutive hours in jail and a minimum fine of $1,000.00,

up to a maximum of five years in jail and a maximum fine

of $10,000[.00].

R.R. at 120a (emphasis added). Although the DL-26A Form pertained to breath test

consent, Trooper Kleeman substituted the word “blood” for the word “breath” as he

read the implied consent warnings to Licensee. R.R. at 50a, 52a-53a. Licensee

refused to submit to the test.

2

The Department’s “DL-26 Form contains the chemical test warnings required by Section

1547 of the Vehicle Code, [75 Pa.C.S. § 1547,] which are also known as the implied consent

warnings.” Vora v. Dep’t of Transp., Bureau of Driver Licensing, 79 A.3d 743, 745 n.2 (Pa.

Cmwlth. 2013). The DL-26A Form is used to provide warnings and obtain consent when law

enforcement seeks a breath test, and a DL-26B implied consent warning form is used when law

enforcement requests a blood test.

4

By notice mailed on April 25, 2018, the Department suspended

Licensee’s operating privilege for one year (Suspension Notice) pursuant to Section

1547 of the Vehicle Code (Vehicle Code) (commonly referred to as the Implied

Consent Law), 75 Pa.C.S. § 1547. Also on April 25, 2018, the Department informed

Licensee of the lifetime disqualification of his commercial driver’s license

(Disqualification Notice), as required by Section 1611(c) of the Uniform Commercial

Driver’s License Act (UCDL),3 75 Pa.C.S. § 1611(c), because his January 4, 2018

chemical testing refusal was his second violation of Section 1611(a) of the UCDL, 75

Pa.C.S. § 1611(a).

On May 4, 2018, Licensee filed a pro se statutory appeal in the trial

court. On May 25, 2018, Licensee’s counsel (Counsel) appealed from both the

license suspension and commercial license disqualification in the trial court. On

September 20, 2018, the trial court held a de novo hearing, consolidating Licensee’s

pro se and counseled appeals. At the hearing, Trooper Kleeman and Trooper

Hummel described the relevant events of January 4, 2018, and the grounds upon

which they believed Licensee was operating his vehicle while under the influence of

a controlled substance. Corporal Rymarkiewicz did not attend the hearing. Licensee

did not testify or present evidence.

On November 13, 2018, the trial court dismissed Licensee’s appeals.

The trial court found the Troopers’ testimony credible, concluded the Troopers had

reasonable grounds to believe Licensee was operating his vehicle while under the

influence of a controlled substance, and determined that Licensee had refused consent

for chemical testing. Licensee appealed to this Court.4

3

75 Pa.C.S. §§ 1601-1622. Section 1611(c) of the UCDL mandates lifetime disqualification

of commercial drivers twice convicted of violating Section 1611(a) of the UCDL, or the subject of

two or more test refusals under Section 1613 of the UCDL, 75 Pa.C.S. § 1613 (pertaining to implied

consent requirements for commercial motor vehicles) or any combination thereof.

4

“Our standard of review is limited to determining whether [the trial court] committed an

error of law, whether [the trial court] abused its discretion, or whether the findings of fact are

5

Initially,

[i]n order to sustain the appeal of a license suspension under

the Implied Consent Law:

The Department must prove at a statutory appeal

hearing that the licensee (1) was arrested for driving

while under the influence by a police officer who had

reasonable grounds to believe that the licensee was

operating a vehicle while under the influence of

alcohol or a controlled substance, (2) was asked to

submit to a chemical test, (3) refused to do so, and (4)

was warned that a refusal would result in a license

suspension.

Zwibel v. Dep’t of Transp., Bureau of Driver Licensing, 832

A.2d 599, 604 (Pa. Cmwlth. 2003) (emphasis in original).

With regard to the first prong of this burden,

[a]n officer has reasonable grounds to believe an

individual was operating a motor vehicle under the

influence of alcohol ‘if a reasonable person in the

position of a police officer, viewing the facts and

circumstances as they appeared to the officer at the

time, could conclude that the driver drove his car while

under the influence of alcohol.’ McCallum v.

Commonwealth, . . . 592 A.2d 820, 822 ([Pa. Cmwlth.]

1991). The issue of reasonable grounds is decided on

a case-by-case basis, and an officer’s reasonable

grounds are not rendered void if it is later discovered

that the officer’s belief was erroneous. Id. The

officer’s belief must only be objective in light of the

surrounding circumstances. Moreover, the existence

of reasonable alternative conclusions that may be

made from the circumstances does not necessarily

render the officer’s belief unreasonable. Id.

Id.

supported by substantial evidence.” Garlick v. Dep’t of Transp., Bureau of Driver Licensing, 176

A.3d 1030, 1035 n.6 (Pa. Cmwlth. 2018).

6

Regula v. Dep’t of Transp., Bureau of Driver Licensing, 146 A.3d 836, 842-43 (Pa.

Cmwlth. 2016).5

Licensee first argues that the trial court erred when it permitted Trooper

Kleeman to testify regarding Corporal Rymarkiewicz’s post-DRE conclusion.

Licensee specifically contends the trial court erred when it overruled his hearsay

objection during the following exchange between the Department’s counsel and

Trooper Kleeman:

Q. . . . When [Corporal Rymarkiewicz] was doing the . . .

DRE test evaluation, did he ever inform you what his . . .

conclusion was based on his DRE observations?

A. His conclusion would have been that he --

[Counsel]: I’m going to object to his conclusion, Your

Honor. That’s clearly hearsay testimony which would need

[Corporal] Rymarkiewicz [sic] to testify.

THE COURT: It’s overruled. You may answer the

question.

[Trooper Kleeman]: Based on his observations, he would

have -- he would have taken him for a blood test.

R.R. at 58a.

5

“It is well settled that the standard for reasonable grounds is not very demanding and the

police officer need not be correct in his belief that the motorist had been driving while intoxicated.”

Sisinni v. Dep’t of Transp., Bureau of Driver Licensing, 31 A.3d 1254, 1259 (Pa. Cmwlth. 2011).

While there is no set list of behaviors that a person must exhibit for an

officer to have reasonable grounds for making an arrest, case law has

provided numerous examples of what this Court has accepted as

reasonable grounds in the past, e.g., staggering, swaying, falling

down, belligerent or uncooperative behavior, slurred speech, and the

odor of alcohol.

Stancavage v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa. Cmwlth.

2009). In Matthews v. Commonwealth, 540 A.2d 349, 350 (Pa. Cmwlth. 1988), “[t]he police officer

smelled no alcohol on [the driver’s] breath but noted that his eyes were glassy and at times he was

unsteady on his feet and combative.” This Court held that the driver’s “bizarre behavior” provided

reasonable grounds for the police officer to request chemical testing. Id. at 351.

7

Licensee asserts:

Despite Corporal Rymarkiewicz not being present in court,

despite Corporal Rymarkiewicz’s report not being admitted,

and further despite Corporal Rymarkiewicz not being

qualified as an expert witness, Corporal Rymarkiewicz’s

purported conclusion as to [Licensee’s] alleged impairment

was admitted over objection.

Licensee Br. at 11. Licensee insists that “Corporal Rymarkiewicz’s opinion was

crucial to the disposition of the case, as his opinion formed the very basis for Trooper

Kleeman to request [Licensee] to submit to chemical testing.”6 Id.

This Court has explained:

Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted. A

statement may be hearsay only if it is offered to prove the

truth of the matter asserted. But, an out-of-court statement

offered to explain a course of conduct is not hearsay.

Jerry v. Dep’t of Corr., 990 A.2d 112, 116 (Pa. Cmwlth. 2010) (citations omitted).

Thus, an out-of-court statement is admissible to demonstrate motivation for an

arresting officer’s course of conduct. See Menosky v. Commonwealth, 550 A.2d 1372

(Pa. Cmwlth. 1988); see also DiSalvatore v. Dep’t of Transp., Bureau of Driver

Licensing (Pa. Cmwlth. No. 835 C.D. 2012, filed November 13, 2012); Lubman v.

Dep’t of Transp., Bureau of Driver Licensing (Pa. Cmwlth. No. 117 C.D. 2011, filed

February 1, 2012).7

6

Notably, Licensee does not specifically argue that his behavior did not provide the

Troopers reasonable grounds to believe he was operating the vehicle under the influence of a

controlled substance. Rather, while stressing the impact of Corporal Rymarkiewicz’s opinion,

Licensee ignores Trooper Kleeman’s testimony of his personal observations.

7

This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,

but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating

Procedures, 210 Pa. Code § 69.414(a). DiSalvatore and Lubman are cited for their persuasive

value.

8

In the instant matter, Corporal Rymarkiewicz’s conclusion was not

offered for the truth of the matter asserted but, rather, “to establish [Trooper

Kleeman’s] state of mind, i.e., to establish that [he] had reasonable grounds to believe

Licensee was [under the influence of a controlled substance].” Menosky, 550 A.2d at

1374. Further, Trooper Kleeman’s testimony, which the trial court deemed credible,

reflects that Trooper Kleeman did not rely only on Corporal Rymarkiewicz’s

conclusions in requesting Licensee submit to chemical testing. Rather, Trooper

Kleeman testified that his request was also based on his personal observations of

Licensee’s behavior and his professional experience. See R.R. at 34a, 37a, 47a, 58a-

59a. In fact, when Licensee’s counsel insisted during cross-examination that “[i]t’s

only based upon Corporal Rymarkiewicz’s DRE exam that [he] asked for the

chemical testing to be performed[,]” Trooper Kleeman responded, “and my

observations.” R.R. at 47a (emphasis added). Under these circumstances, the trial

court did not err by permitting Trooper Kleeman’s testimony describing Corporal

Rymarkiewicz’s post-DRE conclusion.

Licensee next asserts that the trial court erred by denying his appeals

because Trooper Kleeman: erroneously used a DL-26A Form pertaining to breath

testing rather than blood testing; provided cross-examination testimony that

contradicted his direct testimony;8 and created an “irreconcilable contradiction” by

testifying that Licensee refused to submit to a blood test, where the Department’s

certified documents reflect that Licensee refused to submit to a breath test. Licensee

Br. at 19.

8

Trooper Kleeman testified on direct examination that he had read the DL-26A Form

implied consent warnings to Licensee verbatim, and similarly testified at a preliminary hearing

involving criminal charges arising from the incident. Although the criminal charges were

dismissed, that outcome is not relevant here. See Regula, 146 A.3d at 843 (“[T]he result of a

criminal DUI proceeding and the legality of the underlying traffic stop are not relevant to an appeal

of a civil license suspension matter based on a licensee’s refusal to submit to a chemical test in

accordance with the Implied Consent Law.”).

9

In Jackson v. Department of Transportation, Bureau of Driver

Licensing, 191 A.3d 931 (Pa. Cmwlth. 2018),

[the a]rresting [o]fficer testified that the warnings he read

from the card were the warnings in the DL-26A Form

‘verbatim.’ Although the DL-26A Form stated ‘Use For

Breath Test’ . . . , [the a]rresting [o]fficer credibly testified

that at the scene of the arrest he asked [the l]icensee to

submit to a blood test . . . .

....

Although the DL-26A Form used the word ‘breath’ instead

of ‘blood,’ [the a]rresting [o]fficer credibly testified that he

requested a blood test, not a breath test, at the scene of the

arrest. [The l]icensee failed to present any evidence or even

allege that [the a]rresting [o]fficer read the word ‘breath’

instead of ‘blood’ when giving the warnings for the blood

test.

Id. at 936 (record citations omitted). Based on the arresting officer’s testimony and

the trial court’s credibility findings, the Jackson Court held that the arresting officer

read the proper warnings for a chemical blood test under Section 1547(b)(2) of the

Vehicle Code.

Here, Licensee argues that in prior testimony, Trooper Kleeman stated

that he read the implied consent warnings from the DL-26A Form to Licensee

“verbatim,” but when Counsel pointed out to Trooper Kleeman on cross-examination

that the DL-26A Form warnings pertained to breath tests rather than blood tests,

Trooper Kleeman insisted that he had substituted the word “blood” for “breath.” See

R.R. at 50a-53a.

The law is well-established that

‘[d]eterminations as to the credibility of witnesses and the

weight assigned to the evidence are solely within the

province of the trial court as fact[]finder.’ Reinhart v. Dep’t

of Transp., Bureau of Driver Licensing, 954 A.2d 761, 765

(Pa. Cmwlth. 2008). ‘As the factfinder, the trial court is

free to accept or reject any testimony in whole or in part,

10

subject only to review by this court for an abuse of

discretion.’ DiCola v. Dep’t of Transp., Bureau of Driver

Licensing, 694 A.2d 398, 400 (Pa. Cmwlth. 1997).

Stancavage v. Dep’t of Transp., Bureau of Driver Licensing, 986 A.2d 895, 899 (Pa.

Cmwlth. 2009). Here, the trial court observed Trooper Kleeman’s testimony and, as

fact-finder, was free to accept or reject the veracity of Trooper Kleeman’s statements.

It found Trooper Kleeman’s clarified testimony credible. We discern no abuse of

discretion. Accordingly, this Court holds that, like the arresting officer in Jackson,

by substituting the word “blood” for “breath,” Trooper Kleeman read the proper

warnings for a chemical blood test under Section 1547(b)(2) of the Vehicle Code and

Licensee refused the test. Licensee’s argument to the contrary lacks merit.

Similarly, there is no merit to Licensee’s assertion that “[a]n

irreconcilable conflict exists as between Trooper Kleeman’s testimony and the

certified records . . . introduced by [the Department]” because the Department’s

certified records reflect that the license suspension and commercial license

disqualification resulted from Licensee’s refusal to submit to a breath test, not a blood

test. Licensee Br. at 19.

Two of the three Department documents to which Licensee specifically

refers are titled “Certification and Attestation,” wherein the Department’s records

custodian certified that Department records searches produced documents that

included the “chemical testing warnings and report of refusal to submit to a breath

test[.]” R.R. at 101a, 117a. Thus, the two certifications merely described the DL-

26A Form which Trooper Kleeman filed. The third document, titled “Certification

Statement” reflects that a search for Licensee’s commercial driver’s license produced

a record with a violation of “Chemical Testing to Determine Amount of Alcohol”

with “Action Taken By Department” of “Official Notice of Disqualification for

Refusal to Submit to Test . . . .” R.R. at 122a. Notwithstanding, apart from the DL-

26A Form, the actual records referenced in the Department’s certifications contain

11

the phrase “chemical test refusal.” R.R. at 113a, 129a. Licensee’s Suspension and

Disqualification Notices similarly refer to a “chemical test refusal” under Section

1547 of the Vehicle Code. R.R. 102a, 118a. Therefore, the only arguable “conflict”

between Trooper Kleeman’s testimony and the Department’s documents is contained

in certifications describing the records in the Department’s possession, and in the

DL-26A Form, which Trooper Kleeman’s testimony clarified. See Jackson.

Accordingly, Licensee’s argument fails.

For all of the above reasons, the trial court’s order is affirmed.9

___________________________

ANNE E. COVEY, Judge

9

On June 20, 2019, Licensee filed an Application Requesting Oral Argument (Argument

Application), averring that “the intricate factual issues pertaining to the improper admission of

expert testimony via hearsay, and the conflicts as to the type of chemical test that was purportedly

refused could be best explained via oral argument.” Argument Application at 2. This Court

disagrees, and denies Licensee’s Argument Application.

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey T. Olt, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing : No. 1653 C.D. 2018

:

Jeffrey T. Olt, :

Appellant :

:

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, : No. 1654 C.D. 2018

Bureau of Driver Licensing :

ORDER

AND NOW, this 15th day of August, 2019, the Schuylkill County

Common Pleas Court’s November 13, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge