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

92 A.3d 1259, 2014 WL 2534910, 2014 Pa. Commw. LEXIS 311
CourtCommonwealth Court of Pennsylvania
DecidedJune 5, 2014
StatusPublished
Cited by11 cases

This text of 92 A.3d 1259 (Ettelman 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
Ettelman v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 92 A.3d 1259, 2014 WL 2534910, 2014 Pa. Commw. LEXIS 311 (Pa. Ct. App. 2014).

Opinion

OPINION BY

President Judge PELLEGRINI.

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)(l)(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 [1261]*1261to 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 anything, reading him any forms or telling him that his license was going to be suspended. Licensee explained:

The only thing I was told is that I had to submit to chemical testing. I was told twice, you have to submit to chemical testing, which I was under the impression I had through the breathalzyer.... I don’t recall anything about a 12 month mandatory suspension of my license.... [I]f I had known that not giving blood in addition to the breathalyzer would result in a 12 month automatic suspension, there’s no way I would have refused.

(Id. at 25).

By order dated April 11, 2013, the trial court denied Licensee’s appeal. Licensee did not file a motion for reconsideration or appeal the trial court’s order. On July 17, 2013, Licensee sent a letter to the trial court enclosing a video of the January 12, 2013 traffic stop, which allegedly showed that the taillights of Licensee’s vehicle were on when the police officer initiated the traffic stop. The trial court informed Licensee that it would consider his July 17, 2013 letter as a request for reconsideration nunc pro tunc. After PennDOT’s counsel objected, Licensee’s counsel submitted a memorandum of law to the trial court in support of the granting of a motion for reconsideration or, in the alternative, requesting that the trial court consider Licensee’s July 17, 2013 letter as a writ of audita querela.2

On October 10, 2013, the trial court reconvened the hearing, at which Licensee presented the video of the January 12, 2013 traffic stop and provided additional testimony. PennDOT argued that the trial court no longer had jurisdiction and that Licensee could have discovered the video in time for the initial hearing if he had acted with reasonable diligence. The trial court subsequently issued an order dated October 17, 2013, granting a writ of audita querela and sustained Licensee’s appeal of the suspension. In its subsequent opinion, the trial court explained:

While the circumstances surrounding the traffic stop are not determinative in [1262]*1262this, a refusal case, they do bear mightily in my assessment of the relative credibility in this, a two-witness case....
I have now, in a hearing held on October 10, 2013, viewed the after-discovered video tape and it is clear that the tail lights are on and brighten greatly when [Licensee] applied his brakes and pulled over_ Accordingly, if the after-discovered video had been a part of my record on April 11, 2013, I would have found in favor of [Licensee] and sustained the appeal and rescinded the suspension.

(Trial Court’s November 7, 2013 Opinion at 2-3). This appeal by PennDOT followed.3

On appeal, PennDOT initially contends that the trial court erred as a matter of law in reconvening Licensee’s hearing over the license suspension because it had lost subject matter jurisdiction. Section 5505 of the Judicial Code, 42 Pa.C.S. § 5505, relating to modification of orders, provides:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

Pursuant to that section, “[a] tribunal loses jurisdiction to change an order once it becomes final; otherwise, nothing would ever be settled....

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Cite This Page — Counsel Stack

Bluebook (online)
92 A.3d 1259, 2014 WL 2534910, 2014 Pa. Commw. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ettelman-v-commonwealth-department-of-transportation-bureau-of-driver-pacommwct-2014.