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Green v. Commonwealth1/28/2005
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from an order of the Court of Common Pleas of Montgomery County (common pleas), which sustained Paul Green's appeal and vacated the Department's one-year suspension of Green's operating privilege. The Department imposed the suspension as a result of Green's refusal to submit to a chemical test. The critical issue on appeal is whether the arresting officer had reasonable grounds to believe that Green was operating his pick-up truck while under the influence of alcohol or a controlled substance. Because we conclude that the record supports the conclusion that the officer's belief that Green was operating his vehicle while under the influence was reasonable, we reverse common pleas.
According to arresting Officer Cherelle Cutting's testimony before common pleas, on June 7, 2002, at approximately 10:00 p.m., she was dispatched to check on a suspicious pick-up truck that was swerving on the road. Officer Cutting pulled the truck over and Green, the driver, identified himself and provided his driver's license. Green denied having anything to drink or taking any drugs. Officer Cutting testified that Green's eyes were glassy, his pupils were very small, and his speech was slurred. According to Officer Cutting, she asked Green to perform two field sobriety tests, "the nine-step heel-to-toe, walk-and-turn," and the "one-leg stand." Officer Cutting testified that she demonstrated the two tests and instructed Green to keep his hands down at his sides when performing the tests. Office Cutting noted that Green took 10 steps instead of nine and kept his arms out in the air rather than at his sides as instructed. She also indicated that Green did not hold his leg correctly when he performed the one-leg stand and that he again kept his arms in the air rather than down at his sides. Specifically, Officer Cutting testified on direct examination as follows:
A: Typically, we just do two [field sobriety] tests, and then we give a . . . preliminary breath test, but I did not smell any alcohol coming from him, but I could see from his eyes and his demeanor and his slurred speech that there was something else going on there. . . .
Q: Okay. And how did he perform those [two tests]?
A: He didn't follow instructions. He took extra steps on the nine-step heel-to-toe, and he was unable to stand with his one leg a few inches off the ground for more than a few seconds, and he was also bending at the knees and keeping his arms out in the air, which is, again, against what I instructed.
Q: Okay. And now up to this point, what, if anything - did you make any conclusions concerning his ability or fitness to operate, safely operate a motor vehicle?
A: Yes, he just seemed like he was not fully focused in his being, in his presence at the time I was talking to him. He was swaggering as he was standing and listening to me.
The Court: Staggering.
[Officer Cutting]: I'm sorry. Swaying, he was staggering his walk and swaying in his stance.
[Officer Cutting]: And I just knew there was something else going on. He just seemed out of the normal.
Q: When you say something else going on, do you mean besides alcohol?
A: Couldn't smell alcohol, but I seen - I felt that there was something in his system that was making him act the way he was.
Q: Okay. Now, what happened after the vehicle search?
A: There was nothing found in the vehicle. He was sitting on the side of the roadway. It's a parking lot. He was sitting on one of the curb edges. As Officer Defrangesco [who was in the unmarked car] searc
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