Duffy v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

694 A.2d 6, 1997 Pa. Commw. LEXIS 206, 1997 WL 228685
CourtCommonwealth Court of Pennsylvania
DecidedMay 8, 1997
DocketNo. 1823 C.D. 1996
StatusPublished
Cited by8 cases

This text of 694 A.2d 6 (Duffy v. Commonwealth, Department of Transportation, Bureau of Driver Licensing) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duffy v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 694 A.2d 6, 1997 Pa. Commw. LEXIS 206, 1997 WL 228685 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

Michael J. Duffy (Duffy) appeals an order of the Court of Common Pleas of Lackawan-na County (Common Pleas) denying Duffy’s statutory appeal from a one-year suspension of his operating privileges imposed by the Department of Transportation (DOT) pursuant to what is known as the Implied Consent Law.1

On December 10, 1994, Trooper Kaye, of the Pennsylvania State Police, was called to the scene of a motor vehicle accident. When Trooper Kaye reached the scene of the accident, all the parties to the accident had already been transported to the hospital. Trooper Kaye conducted an investigation and, as part of his investigation, interviewed Ted Vanbusker, a witness at the scene of the accident.

Vanbusker told Trooper Kaye that he went to the assistance of the people involved in the accident and “he identified the operator of the light brown pick-up truck as a white male approximately 40 years old with a mous-tache.” (Notes of Testimony (N.T.) at 5; (Reproduced Record (R.R.) at 51(a)). Patrolman Hickey of the Scranton Police Department gave Trooper Kaye a written statement that he took from another witness, Tim Lan-gan. Langan’s statement indicated that the driver of the pick-up truck wore a “jean type jacket on a red sweat hood.” (N.T. at 7; R.R. at 53(a)).

After completing his investigation at the scene, Trooper Kaye went to the hospital to interview the parties to the accident. The first person Trooper Kaye interviewed was Duffy who was dressed in a red hooded sweatshirt and a jean jacket. Duffy had a moustache and when the Trooper asked Duffy how old he was, Duffy said he was forty. Trooper Kaye noticed that Duffy’s eyes were bloodshot and glassy, his speech was slurred, and he was swaying. Moreover, Duffy had a heavy odor of alcohol on his breath.

Trooper Kaye then asked Duffy if Duffy had been driving one of the vehicles involved in the accident. Duffy replied that he had not been driving. Duffy told Trooper Kaye that an unknown third party had been driving the vehicle, and that he did not know anything about the unknown third party driver. Trooper Kaye then informed Duffy that he had reason to believe that Duffy was the operator of the vehicle and placed Duffy under arrest for driving under the influence of alcohol. He read Duffy the implied consent warnings and asked him to submit to a chemical test of his blood alcohol. Duffy refused. DOT then suspended Duffy’s operating privileges and Duffy appealed to Common Pleas.

At Duffy’s hearing in Common Pleas, Duffy’s counsel made a hearsay objection to Trooper Kaye’s testimony concerning what witnesses at the scene had told him about the description of the driver. That objection was sustained and, as a result, Common Pleas upheld Duffy’s appeal on the basis that DOT had failed to prove that Trooper Kaye had a reasonable basis for believing that Duffy was driving under the influence of alcohol. DOT appealed to this Court which vacated the order of the Common Pleas Court and remanded for the purpose of allowing Trooper Kaye to testify regarding information he received from others in order to establish he had a reasonable basis for his belief that Duffy was the driver of one of the vehicles. Department of Transportation, Bureau of Driver Licensinq v. Duffy, 673 A.2d 445 (Pa. Cmwlth.1996).

On remand, Trooper Kaye testified regarding what he had been told by Vanbusker and what he read in the statement of the witness taken by Patrolman Hickey. After hearing this testimony, Common Pleas concluded that Trooper Kaye had a reasonable basis for suspecting that Duffy was driving one of the vehicles involved in the accident and denied Duffy’s appeal. This appeal followed.

To sustain Duffy’s suspension, DOT has the burden to prove four elements: (1) the licensee was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was in operation or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance; (2) the licensee was [9]*9requested to submit to a chemical test; (3) the licensee refused to do so; and (4) the licensee was specifically warned that a refusal to submit to the chemical test would result in the suspension of his operating privilege. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996); Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994); Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

Duffy concedes that DOT met its burden of proof with regard to the last three elements above. However, Duffy argues that admission of the witness statements proffered by DOT to meet its burden of proving the first element, ie., the police officer’s reasonable belief, was error. Second, Duffy argues that Common Pleas erred by allowing Trooper Kaye to testify regarding his identification of Duffy at the hospital.

APPELLANT’S HEARSAY ARGUMENT

Duffy argues that Common Pleas erred by admitting Langan’s statements to Patrolman Hickey through Trooper Kaye’s testimony. Quite correctly, however, Duffy admits that out-of-court statements are admissible for the purpose of establishing that a police officer had reasonable grounds to believe that a licensee was driving while intoxicated.2 Nevertheless, Duffy argues that Common Pleas erred in this case because the out-of-court statements admitted were not given directly to the investigating officer but were given to another officer who delivered the statements to the investigating officer.

Hearsay is “an out of court [statement] offered to prove the truth of the fact asserted [in the statement].” Commonwealth v. Coleman, 458 Pa. 112, 115 326 A.2d 387, 388 (1974). However, if the out-of-court statement is offered not to prove the truth of the statement made by the out-of-court declarant, but instead to prove that the statement was in fact made, the out-of-court statement is not hearsay regardless of who made it or how it was reported to the witness. McCormick on Evidence (Fourth Ed.) § 246. In this case, the ouLof-court statement was introduced only to prove that the statement was, in fact, made. Ultimately, it is the mental state of Trooper Kaye’s mind, ie., his reasonable belief that Duffy had been driving, that is the issue, and the truth of that fact is the relevant inquiry. Therefore, it is admissible.

To support his challenge to Trooper Kaye’s testimony regarding Langan’s statements given to Patrolman Hickey, Duffy relies on McCullough v. Department of Transportation, Bureau of Driver Licensing, 165 Pa. Cmwlth. 371, 645 A.2d 378 (1994). In that case, a police officer responded to the scene of an accident where he observed an automobile lodged against a high curb. The motor was off and no one was in the driver’s seat. McCullough was standing near the car. The officer noticed that McCullough had glassy eyes and slurred speech.

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Bluebook (online)
694 A.2d 6, 1997 Pa. Commw. LEXIS 206, 1997 WL 228685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duffy-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-1997.