IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven T. Gillen, :

Appellant :

: No. 237 C.D. 2019

v. :

: Submitted: February 26, 2021

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: December 29, 2021

Steven T. Gillen (Licensee) appeals from the entered February 21, 2019

order of the Court of Common Pleas of Fayette County (trial court) denying his 

statutory appeal from the one-year suspension of his operating privilege imposed by

the Department of Transportation, Bureau of Driver Licensing (DOT) under section 

1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1).

1 We reverse. 

1 Section 1547(b)(1) of the Vehicle Code, commonly referred to as the “Implied Consent 

Law,” reads, in pertinent part, as follows:

(1) If any person placed under arrest for a violation of section 3802 [ of 

the Vehicle Code, 75 Pa. C.S. §3802, governing driving under 

influence of alcohol or controlled substance] is requested to submit to 

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

(Footnote continued on next page...)
2

Factual and Procedural History

In the early morning hours of a wintery2January night, Pennsylvania State 

Police Trooper Matthew Costea was dispatched to a scene of an accident at 12:18 a.m. 

(Reproduced Record (R.R.) at 18a.) Upon arrival at the scene of the accident

approximately 15 minutes later, Trooper Costea could not locate an operator of the 

vehicle. Trooper Costea checked the registration of the vehicle and discovered that it 

belonged to Licensee. Id. at 19a. At approximately 1:00 a.m., Shawn Gribbin 

(Gribbin) walked up to the scene. Gribbin told Trooper Costea that he observed

Licensee in the driver’s seat after the crash. Gribbin also told Trooper Costea that

Licensee was “drinking and watching football prior to the crash.” Id. at 22a. Gribbin 

stated that Licensee left the crash scene and went to Gribbin’s condominium to sleep. 

Id. Gribbin gave Trooper Costea permission to enter his residence for the purpose of 

finding Licensee. Id. When Trooper Costea entered the residence around 1:30 a.m., 

he found Licensee asleep on the couch. Id. at 22a-23a. 

When Trooper Costea roused Licensee, he detected the odor of alcohol, 

and observed that Licensee had bloodshot and glassy eyes and slurred speech. Trooper 

Costea also noticed a lump on Licensee’s forehead. Trooper Costea attempted to ask

Licensee questions, but Licensee’s speech was slurred, and Trooper Costea could not

understand many of his responses. Id. at 23a. When Trooper Costea asked Licensee

but upon notice by the police officer, the department shall suspend the 

operating privilege of the person as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 

months.

75 Pa. C.S. §1547(b)(1).

2 Trooper Costea testified during cross-examination that the roads were snow-covered the 

night of the accident. See Reproduced Record (R.R.) at 30a. 
3

whether the injury on his head came from the crash, Licensee responded that it “had to 

have come from that.” Id. at 25a.

Licensee agreed to submit to a breath test, which indicated that his blood 

alcohol content (BAC) was 0.188%. Id. at 25a-26a. Trooper Costea conducted a 

horizontal gaze nystagmus test,3 which led Trooper Costea to believe Licensee had a 

BAC over 0.08%—the legal limit of alcohol in Pennsylvania. Licensee was unable to 

stand and perform other field sobriety tests. Id. at 27a. 

Trooper Costea informed Licensee that he was under arrest for driving 

under the influence of alcohol or a controlled substance (DUI) and read Licensee the 

warnings listed in DOT Form DL-26 (DL-26) (Pennsylvania’s Implied Consent Law). 

Id. Licensee declined to sign the form or submit to a chemical blood test. Id. at 29a.

As a result, DOT suspended Licensee’s operating privilege for one year because he 

refused to submit to a chemical test of his blood. Id. at 9a. 

Licensee filed a statutory appeal with the trial court. At the hearing, DOT 

had the burden of proving the following elements in support of its decision to suspend 

Licensee’s driving privileges: (1) a police officer had reasonable grounds to believe 

that the licensee drove while under the influence of alcohol; (2) the officer asked the 

licensee to submit to chemical testing; (3) the licensee refused to submit to such testing; 

and (4) the officer provided a warning to the licensee that his failure to submit to testing 

would result in the suspension of his license. Banner v. Department of Transportation, 

Bureau of Driver Licensing, 737 A.2d 1203 (Pa. 1999).

3

“The horizontal gaze nystagmus test is a standard test used by police officers to determine 

whether a subject is intoxicated. The officer holds an object, such as a pen, in front of and slightly 

above the subject’s eyes and then moves the object in front of the subject’s face. The subject must 

follow the object with his eyes only. If the subject is alcohol-impaired, the eyeballs jerk and bounce 

as they follow the object. The greater the impairment, the greater the jerk or bounce.” Morris v. 

Department of Transportation., Bureau of Driver Licensing (Pa. Cmwlth., No. 315 C.D. 2009, filed 

August 19, 2009) slip op. at 1 n.3. 
4

DOT called one witness at the hearing, the investigating and arresting 

police officer, Trooper Costea. Licensee did not call any witnesses and did not testify. 

Id. at 15a. Trooper Costea explained that the dispatch was at 12:18 a.m., and his 

encounter with Licensee was at 1:30 a.m. He also recounted his conversation with 

Gribbin at the scene of the accident, during which Gribbin told him that Licensee was 

behind the wheel after the accident, and that Licensee was drinking before the accident. 

Id. at 17a. Licensee’s counsel objected to this testimony on the grounds that anything 

Gribbin said to Trooper Costea that night was hearsay. Id. at 19a. The trial court 

overruled the objection and permitted Trooper Costea to testify as to Gribbin’s out-ofcourt statements. Id. at 19a-21a.4 Licensee’s counsel also objected to introduction of

the preliminary breath test conducted by Trooper that revealed Licensee had a 0.188%

BAC on the grounds that the test was unreliable. Id. at 25a. The trial court overruled 

the objection and permitted the breath test results to be entered into evidence. 

On cross-examination, Trooper Costea testified that he did not know what 

time the accident occurred, did not ask Licensee what time he drank or what he drank,

and did not recall if there were open bottles of alcohol around the area where Licensee

was sleeping. Id. at 38a.

Following the hearing, the trial court denied Licensee’s appeal and upheld 

his license suspension. (Trial ct. op., 4/24/19, at 7.) The trial court first addressed

Licensee’s contention “that DOT failed to establish reasonable grounds which would 

lead one to believe that [Licensee] was in actual physical control of vehicle while in an 

intoxicated state at the time the vehicle was abandoned warranting a request for 

4 Gribbin was not present. It is not entirely clear why DOT did not subpoena Gribbin to appear 

at the hearing. However, from what we can glean from Licensee’s counsel, it appears that Gribbin, 

at Licensee’s criminal trial, recanted the statements he made to Trooper Costea. R.R. at 20a-21a.
5

submission to a chemical test.” Id. at 4. Licensee argued that Trooper Costea did not 

see him operating his “vehicle and that DOT failed to establish a time frame between 

the accident and the arrest.” Id. The trial court concluded that despite the 75 minutes 

which elapsed between the time Trooper Costea arrived at the accident scene and 

encountered Licensee, Trooper Costea had reasonable grounds to believe that Licensee 

was intoxicated while driving. Id. at 4-5. According to the trial court, the time period 

of less than 75 minutes between arrival at the scene of the accident and encountering 

Licensee was “sufficient to establish reasonable grounds to believe that [Licensee] was 

operating the accident vehicle while intoxicated.” Id. 

Next, the trial court addressed Licensee’s hearsay argument concerning 

Gribbin’s out-of-court statements. Id. at 5-6. The trial court, relying on Menosky v. 

Commonwealth, 550 A.2d 1372 (Pa. Cmwlth. 1988), reasoned that “the out[-]of[-]court 

statements [are permitted because the statements show] that reasonable grounds existed 

for [Trooper Costea] to believe that [Licensee] was in operation of the motor vehicle 

while under the influence of alcohol.” (Trial ct. op., at 6.) Like Menosky, these 

statements were not hearsay, but rather, the statements were “admissible for purposes 

of proving the state of mind of the officer in response to hearing the statement.” Id.

The third issue the trial court addressed was Licensee’s argument that the 

pre-arrest breath test was not admissible because it was “unreliable,” and it was not an 

approved device. Id. In determining that the breath test was properly admitted, the 

trial court reasoned that DOT’s use of the test was to establish that Trooper Costea had 

reasonable grounds to believe Licensee had operated a vehicle while intoxicated. Id.

at 6-7. “The purpose of [the breath test] testimony relates back to reasonable grounds 

and was not admitted as evidence of the blood alcohol content of [Licensee], but rather, 

was offered to show reasonable ground upon which Trooper Costea acted in forming 
6

his belief that [Licensee] had operated the vehicle while intoxicated.” (Trial ct. op., at

6-7.)

The fourth issue the trial court addressed concerned the admissibility of 

the results of the horizontal gaze nystagmus test. Id. at 7. Licensee had argued that the 

results of this test were not “scientifically reliable.” R.R. at 26a. In holding the test 

results were admissible, the trial court stated that “[t]he evidence was admitted 

specifically for the purpose of establishing that [Licensee] was driving in an intoxicated 

state and not to show any culpability for [DUI].” (Trial ct. op. at 7.)

Lastly, the trial court addressed Licensee’s claim that the license 

suspension was “illegal as an unconstitutional civil penalty imposed on an individual’s 

exercise of the Fourth Amendment right to refuse consent to a warrantless search.”

(Trial ct. op., at 7.) Relying on Boseman v. Department of Transportation, Bureau of 

Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), the trial court concluded that it was “bound 

by precedent to reject this argument.” Id.

On appeal,5 Licensee raises five issues. They are: (1) whether Trooper

Costea failed to establish reasonable grounds to request a chemical test because 

Trooper Costea could not establish Licensee operated the vehicle while under the 

influence of alcohol; (2) whether the trial court erred in permitting Trooper Costea to 

testify to the out-of-court statements between Gribbin and Trooper Costea; (3) whether 

the trial court erred in permitting testimony based upon the breath test Trooper Costea 

conducted the night of the accident—Licensee contends that DOT failed to establish 

the make and model of the test, and whether the breathalyzer was approved to be used; 

(4) whether the trial court erred in allowing Trooper Costea’s testimony concerning 

5

“As an appellate court, our standard of review in a license suspension case is to determine 

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

trial court committed an error of law or an abuse of discretion.” Banner, 737 A.2d at 1205.
7

conducting the horizontal gaze nystagmus test without proving whether the test is 

scientifically reliable; and (5) whether Pennsylvania’s Implied Consent Law is 

unconstitutional. See Appellant’s Br. 4; see Trial ct. op., at 3-4.

Discussion

In his first issue, Licensee argues that DOT failed to establish that Trooper 

Costea had reasonable grounds to believe that Licensee was driving his vehicle in an 

intoxicated state at the time it was abandoned. Licensee argues that DOT has no 

evidence as to when the vehicle was driven; it can only speculate. “All that is known 

is there was [a] dispatch made by the police at 12:18 a.m.[, and] Trooper Costea arrived 

at the residence at 1:30 a.m., an hour and 12 minutes after the dispatch.” Appellant’s 

Br. 19. Trooper Costea did not inquire what time Gribbin saw Licensee in the driver’s 

seat of his vehicle, nor did Trooper Costea ask Licensee when he was drinking. Trooper 

Costea “also candidly admitted that he did not see the accident, he doesn’t know of 

anyone who saw the accident, and he doesn’t know the time the accident took place. 

Trooper Costea did little investigation. He never testified that he touched the hood of 

the vehicle and it was warm.” Appellant’s Br. 19 (citations and footnote omitted). 

Additionally, Licensee cites and applies the following cases to his 

circumstances: Sestric v. Department of Transportation, Bureau of Driver Licensing, 

29 A.3d 141 (Pa. Cmwlth. 2011), Demarchis v. Department of Transportation, Bureau 

of Driver Licensing, 999 A.2d 639 (Pa. Cmwlth. 2010), Stahr v. Department of 

Transportation, Bureau of Driver Licensing, 969 A.2d 37 (Pa. Cmwlth. 2009), Fierst 

v. Commonwealth, 539 A.2d 1389 (Pa. Cmwlth. 1988), and Department of 

Transportation, Bureau of Driver Licensing v. Mulholland, 527 A.2d 1123 (Pa.

Cmwlth. 1987). Appellant’s Br. 12-19. Licensee argues that in Mulholland and Fierst,
8

this Court determined that observation of a motorist consuming alcohol after the time 

of an accident did not give rise to reasonable grounds to suspect DUI, in that such a 

conclusion required impermissible speculation. In Mulholland, the officer observed 

the licensee 25 minutes after the accident when he saw the licensee drinking and

showing signs of intoxication, and in Fierst, the officer saw the motorist an hour after 

the accident. Therefore, reasonable grounds cannot be established on mere speculation 

that a licensee was intoxicated at the time of driving. Appellant’s Br. 13-15. 

Licensee further argues that Stahr, Demarchis, and Sestric all lend support 

to his case in that there must be a sufficient timeline established between the accident 

and observing Licensee’s intoxication for an officer to have reasonable grounds that a 

person drove while intoxicated. Licensee argues that DOT provided no evidence as to 

when the Licensee drove the vehicle; DOT can only speculate. DOT only knows that 

there was an hour and 12 minutes between the dispatch and Trooper Costea’s arrival at 

the residence at 1:30 a.m. Appellant’s Br. 19. Thus, the only time established here is 

the time from dispatch to encountering Licensee, which is insufficient to demonstrate 

reasonable grounds that Licensee drove while intoxicated. The distinction made is the 

contrast in that in the other cases, the timeline is the time from the accident to 

encountering Licensee, and here, it is the time from the dispatch to encountering 

Licensee.

DOT responds by arguing that these cases are distinguishable. DOT 

argues that unlike Mulholland and Fierst, where police encountered the licensees 

drinking, there is no evidence Licensee was drinking after the accident. Appellee’s Br. 

at 23. Then, as for Stahr, Demarchis, and Sestric, there was no timeline between when

the licensees drove and when the officers encountered the intoxicated licensees. 

Appellee’s Br. at 23. 
9

The question of whether reasonable grounds existed is a question of law, 

which this Court reviews in a plenary fashion and on a case-by-case basis. Department 

of Transportation, Bureau of Driver Licensing v. Malizio, 618 A.2d 1091 (Pa. Cmwlth. 

1992). This Court summarized the applicable test for determining whether a police 

officer had reasonable grounds in Dreisbach, as follows:

Whether evidence is sufficient to constitute “reasonable 

grounds” can only be decided on a case-by-case basis. The 

test, however, is not very demanding. We note initially that, 

for “reasonable grounds” to exist, the police officer 

obviously need not be correct in his belief that the motorist 

had been driving while intoxicated. We are dealing here with 

the authority to request a person to submit to a chemical test 

and not with the admission into evidence of the result of such 

a test. The only valid inquiry on this issue at the de novo 

hearing is whether, viewing the facts and circumstances as 

they appeared at the time, a reasonable person in the position 

of the police officer could have concluded that the motorist 

was operating the vehicle under the influence of intoxicating 

liquor. Thus, it is not relevant that the motorist later, at the 

time of trial, can establish a cause other than intoxication for 

such observed behavior as slurred speech or an unsteady gait. 

At trial, the only relevant factual defense would be a showing 

that the motorist’s behavior was not, in fact, as the officer 

testified.

Dreisbach, 363 A.2d 870, 872 (footnotes omitted). 

An officer’s belief that a licensee was operating a vehicle while under the 

influence of alcohol or a controlled substance must only be objective in light of the 

surrounding circumstances. Zwibel v. Department of Transportation, Bureau of Driver 

Licensing, 832 A.2d 599, 604 (Pa. Cmwlth. 2003).

As our Supreme Court stated in Banner, “the court must consider the 

totality of the circumstances, including the location of the vehicle, whether the engine 
10

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.” 737 A.2d at 1207. 

On several occasions, this Court has been asked to determine whether a police officer 

had reasonable grounds to suspect a DUI violation where the officer did not actually 

witness the licensee operating the vehicle. 

In Fierst, witnesses at the scene of an accident location reported that the 

driver had left, and they gave police the license plate number of the licensee’s 

automobile. Approximately one hour later, a police officer arrived at the licensee’s 

house and saw him with a bottle of beer in his hand. The licensee staggered and smelled 

of alcohol. He was arrested for driving while intoxicated. This Court reversed the trial 

court’s order and held “that under these facts and circumstances[,] a reasonable police 

officer could not conclude that there were reasonable grounds for believing that while 

driving, [the licensee] was under the influence of alcohol.” Fierst, 539 A.2d at 1390. 

In Mulholland, the licensee, a driver involved in an accident with another 

automobile, left the scene. Approximately 25 minutes later, accompanied by police, 

the driver of the other automobile found the licensee drinking at a tavern and identified 

him as the other driver. The police observed that the licensee appeared intoxicated and 

arrested him for driving under the influence. The licensee refused a breathalyzer test.

This Court affirmed the trial court’s order that sustained the licensee’s appeal of his 

driver’s license suspension. In doing so, this Court stated:

This 25[-]minute delay seems to us to be too long for the 

officer to reasonably conclude that [the licensee] had in fact 

been driving his automobile under the influence of alcohol. 

As the trial court stated: “He could have gone in and had a 

couple of shots, even if he were in the accident. He could 

have gone in and had a couple of shots to calm himself down, 
11

I don’t know, but the point is we’re left to speculate about 

it.”

Mulholland, 527 A.2d at 1124 (citation omitted).

In Stahr, a Pennsylvania State Police trooper responded to an accident 

scene. With the vehicle abandoned, the trooper located the licensee at his home using 

vehicle registration information. When questioned by the trooper, the licensee 

admitted to driving the vehicle. At this point, the trooper noticed that the licensee 

smelled of alcohol, had slurred speech, and had an unsteady gait. The licensee admitted 

that he had been consuming alcohol that evening. The trooper placed the licensee under 

arrest and asked him to submit to chemical testing. The licensee refused. The trial 

court, following a hearing, concluded that the trooper had reasonable grounds to 

suspect the licensee had operated his vehicle while under the influence of alcohol. We 

reversed, noting the absence of any evidence in the record of a timeframe between the 

accident and the arrest or some other objective evidence to support the trooper’s 

conclusion that the licensee had been under the influence at the time of the accident:

At no time during his testimony did Officer Brown indicate 

any timeframe between the accident and the time he 

encountered Stahr. In other cases where the Court found a 

police officer had or did not have reasonable suspicion of 

DUI, where the arrestee was not found in his car, a timeframe 

between the arrestee’s operation of the car and subsequent 

arrest, or some other evidence, such as witness accounts of 

the DUI, were established in the record.

Officer Brown could not reasonably conclude that Stahr 

was driving under the influence simply because he showed 

signs of intoxication when he exited the state trooper’s 

vehicle without further establishing the timeframe between 

the accident and the observed intoxication. No timeframe 

between the accident and arrest was established according 

to the evidence provided to the trial court. We cannot, 

therefore, conclude that Officer Brown had reasonable 
12

suspicion that Stahr was in control of his vehicle while under 

the influence of alcohol. Since there was no objective 

evidence to support Officer Brown's suspicion that Stahr was 

driving under the influence, the order of the trial court is 

reversed, and Stahr’s operating privileges are reinstated.

Stahr, 969 A.2d at 40-41 (citations omitted) (emphasis added). We concluded that 

there was no “objective evidence to support” the local officer’s “suspicion that Stahr 

was driving under the influence . . . .” Id.

In Demarchis, DOT suspended Demarchis’ operating privilege for his 

refusal to submit to a chemical test conducted by a police officer. Demarchis, 999 A.2d 

at 640. A police officer responded to a report from a dispatcher of “a possible DUI 

driver” driving a vehicle that had sparks coming from it. Id. at 641. The officer found 

a matching vehicle to the one described, but it was abandoned. Id. Then, upon learning 

the name and address of the vehicle’s owner, the licensee, the officer went to the 

licensee’s residence, where officers from another police department had already 

arrived. Id.

Upon arriving at the licensee’s home, the officer “observed [the l]icensee 

and noted that he had bloodshot eyes, walked with a staggered gait, was unsteady, and 

slurred his words.” Id. Also, the officer saw that the licensee “had a ‘bracelet’ around 

his wrist, indicating that he had been at [a] nightclub called Havana’s, which is a 

drinking establishment.” Id. The officer further testified that two other officers 

informed him that, upon asking the licensee who had been driving his car, the licensee 

said that a friend was driving his car, “but that he did not know his friend’s name.” Id. 

The officer did not have the licensee do a field sobriety test, but he asked the licensee 

to recite the alphabet to him and if the licensee was driving his vehicle, but he did not 

get an answer to the request or the question. Id. The officer then arrested the licensee 
13

and read him the Implied Consent Form DL-26 and asked if he would agree to submit 

to a blood alcohol test. The licensee declined to do so. Id. 

In determining that the police officer did not have reasonable grounds to 

conclude that the licensee was intoxicated while driving, this Court stated that it had

“no objective evidence in the record to support [the officer’s] suspicion that [the 

l]icensee had been operating or was in control of his vehicle at the time it was 

abandoned.” Id. at 644. We reasoned as follows:

we [face] the absence of any record evidence to establish a 

period between the time the vehicle had been abandoned and 

[the l]icensee’s arrest. The lack of a time line is a troubling 

aspect of this case. There is simply no way to infer or 

estimate the length of time between the initial notice from the 

dispatch and arrest based solely on [the l]icensee’s apparent 

attendance at some undetermined time at a nightclub, his 

alleged driving at an undetermined time, and his abandoning 

his vehicle at yet another undetermined time.

Id. We could not conclude that the officer had reasonable grounds to believe that the 

licensee was intoxicated while driving when there was no clear timeline of events. 

In Fierst and Mulholland, we held that a police officer could not 

reasonably conclude that the drivers drove while intoxicated merely because they were 

observed consuming alcohol after the accident. In both cases, the police officer had 

no evidence that the driver had been under the influence at the time of the accident. In 

other words, the officers could not in those instances speculate as to whether the 

licensees had been operating their vehicles while intoxicated or whether they became 

intoxicated after their vehicles were abandoned. Here, unlike Fierst and Mulholland, 

Licensee was not found drinking and he was not at a bar. Nonetheless, following the 

accident, Trooper Costea observed Licensee displaying signs of intoxication, and the 

principles from Fierst and Mulholland are equally applicable here. 
14

Where a licensee is not found at the accident scene, the arresting officer 

must establish “a timeframe between the [licensee’s] operation of the car and 

subsequent arrest.” Demarchis, 999 A.2d at 643 (quoting Stahr, 969 A.2d at 40) 

(emphasis omitted). Thus, even though no one observed Licensee drink after the 

accident, DOT was still required to establish a timeframe between the time of the 

accident, not simply the dispatch time, and the time of observed intoxication of the 

licensee.

In McCallum v. Commonwealth, 592 A.2d 820 (Pa. Cmwlth. 1991), the 

licensee had been involved in a vehicle accident and left the scene. Before leaving the 

scene, however, he reportedly admitted to two people who had witnessed the accident 

that he had been drinking. Based on these witnesses’ testimony, the arresting officer 

met up with the licensee approximately 30 to 40 minutes after the accident and 

observed that the licensee had slurred speech, smelled of alcohol, and appeared glassyeyed. This Court gave particular significance to the witness testimony that the licensee 

had admitted drinking that evening and the fact that there was no evidence which would 

provide any basis to conclude that the licensee’s consumption of alcohol occurred after, 

and not before, the accident. McCallum, 592 A.2d at 822-23. 

Here, the record supports a finding that Trooper Costea had reasonable 

grounds to believe (1) Licensee was under the influence of alcohol when he 

encountered him; (2) Licensee had been drinking earlier that evening; and (3) Licensee 

had at some point earlier that evening operated his vehicle, but this is the extent of the 

conclusions that can be reached from the evidence DOT presented during the hearing. 

There is no evidence in the record to support Trooper Costea’s suspicion 

that Licensee had been operating or was in control of his vehicle at the time of the 

accident because DOT failed to present evidence of a timeframe between the 
15

Licensee’s operation of the vehicle and subsequent arrest. Like McCallum, an 

eyewitness placed Licensee in the vehicle at the time of the crash. However, unlike

McCallum, the witness did not say anything about the time the accident occurred. 

There is simply no record evidence to establish a period between the time the vehicle 

had been abandoned and Licensee’s arrest. As we held in Demarchis, the lack of a 

timeline is a troubling aspect of this case and is dispositive. There is simply no way to 

infer or estimate the length of time between the Licensee’s alleged driving and his 

arrest. The evidence indicates that 75 minutes elapsed from the time Trooper Costea

was dispatched to the scene of the accident and Trooper Costea’s interaction with 

Licensee. However, Trooper Costea did not establish the time of the accident. Without 

knowing this critical piece of information, Trooper Costea lacked the necessary 

information to form a reasonable belief that Licensee was driving while intoxicated. 

Moreover, there was no evidence, as in Mulholland, to establish one way or another 

that Licensee consumed alcohol either before or after the crash. In other words, we do 

not know what time Licensee was operating the vehicle, when he consumed alcohol, 

or what happened between the time of the crash and the time the breath test was 

administered. Therefore, it is as likely that Licensee consumed alcohol after he left the 

scene of the crash, and it is pure speculation that he drank before the crash. Given the 

tests were conducted over 75 minutes after Trooper Costea was dispatched to the scene 

of the accident, the tests fail to show anything besides the fact that Licensee was visibly 

impaired and under the influence of alcohol at the condominium. 

Accordingly, under this Court’s binding precedent, DOT’s failure to 

establish a timeframe between Licensee’s accident and arrest compels us to conclude

that Trooper Costea did not have reasonable grounds to believe that Licensee violated 

section 3802 of the Vehicle Code. 
16

Given our conclusion in this regard, it is unnecessary for this Court to

consider Licensee’s remaining issues. Additionally, given that Trooper Costea did not 

have reasonable grounds to believe Licensee violated section 3802, this Court declines 

to address the constitutionality of Pennsylvania’s Implied Consent Law.6

Accordingly, the order of the trial court is reversed. 

________________________________

PATRICIA A. McCULLOUGH, Judge

6

See Commonwealth v. Williams, 733 A.2d 593, 608 n.17 (Pa. 1999) (declining to address 

constitutional issues when the case can be disposed on a non-constitutional ground).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven T. Gillen, :

Appellant :

: No. 237 C.D. 2019

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

ORDER

AND NOW, this 29th day of December, 2021, the February 21, 2019 

order of the Court of Common Pleas of Fayette County is hereby reversed. 

________________________________

PATRICIA A. McCULLOUGH, Judge