IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Hoffman :

:

v. : No. 176 C.D. 2018

: Submitted: July 6, 2018

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: August 6, 2018

The Department of Transportation, Bureau of Driver Licensing 

(PennDOT) appeals the order of the Court of Common Pleas of Dauphin County 

(trial court) sustaining the appeal of Eric Hoffman (Hoffman) and rescinding 

PennDOT’s one-year suspension of Hoffman’s operating privilege for failure to 

submit to chemical testing following his arrest for driving under the influence 

(DUI). For the reasons that follow, we affirm.

I.

On October 5, 2017, Officer Alex Wolf (Officer Wolf), a patrolman 

with the Susquehanna Township Police Department, observed Hoffman asleep in 
2

the driver’s seat of a minivan parked in a parking lot at approximately 4:30 a.m. 

While the vehicle was not running, Hoffman had the keys in his hand, the vehicle 

was parked sideways, Hoffman’s eyes were bloodshot, and there was a strong 

smell of alcohol and an open beer can in the driver’s side compartment. Believing

that Hoffman had been in actual physical control of the movement of the vehicle 

while under the influence of alcohol, Officer Wolf placed Hoffman under arrest 

and transported him to Central Booking. Officer Wolf read PennDOT’s DL-26 

form to Hoffman and asked him to provide a blood sample, which he refused.

By official notice dated October 17, 2017, PennDOT notified 

Hoffman that his operating privilege was being suspended for a period of one year

pursuant to Section 1547(b)(1)(i) of the Vehicle Code1for his refusal to submit to 

chemical testing. Hoffman appealed the suspension and a de novo hearing was 

held before the trial court.

Officer Wolf testified that he was conducting standard business 

checks within his patrol area during the early morning hours of October 5, 2017. 

He stated that he has become familiar with what is considered “normal” within his 

patrol area through these checks and one of the businesses within his patrol area is 

the Boost Mobile on Walnut Street. Officer Wolf testified that there is typically 

one car parked in the Boost Mobile parking lot every night.

 

1

75 Pa.C.S. § 1547(b)(1)(i). That provision of the Code provides that an individual 

placed under arrest for DUI who refuses to submit to chemical testing will have his or her 

operating privilege suspended by PennDOT for a period of 12 months.
3

Officer Wolf testified that on the night in question, he drove by Boost 

Mobile toward the beginning of his shift and noticed nothing unusual, but when he 

drove by at 4:27 a.m., he noticed a second vehicle, a minivan, parked in the 

parking lot, which drew his attention. The following exchange took place with 

PennDOT’s counsel regarding the timing of Officer Wolf’s business checks:

Q. Officer, let me stop you. Had you been by that area 

previous to that on that night?

A. Yeah, I would have gone through early that night. It 

wouldn’t have been documented. I don’t know exactly 

what time or anything, but I go through the whole beat 

throughout my 12-hour shift. That was just the time that 

I go through and officially document it on my business 

checks report. [The minivan] wasn’t there earlier in the 

night –

Q. I’m sorry?

A. It was not there earlier in the night, but I couldn’t tell 

you – I couldn’t testify as to what time I would have 

gone through and noticed that it wasn’t there.

Q. What time did your shi[f]t start that night?

A. 7 p.m.

Q. Is it your custom to do these business checks at any 

particular time in your shift?

A. Yeah, I usually do them sometime between 1 a.m. 

and maybe like 5 a.m. It’s typically a slower period in 

the shift and that would be the time if there was going to 

be some kind of mischief happening that I would locate 

it.

(Reproduced Record (R.R.) at 41a.)
4

Officer Wolf testified that upon pulling into the parking lot, he noticed 

that the minivan’s driver side back sliding door was wide open and the vehicle was 

parked somewhat sideways, not straight within the painted white lines. Upon 

approaching the minivan, he observed an Amstel Light beer bottle in a cup holder 

in the back of the vehicle and Hoffman asleep in the driver’s seat with his head 

hanging down towards his lap. The keys to the vehicle were in Hoffman’s hands 

and an open Budweiser beer can was in the driver’s compartment just to 

Hoffman’s right. When Officer Wolf banged on the window of the minivan,

Hoffman started yelling profanities, but once he opened his eyes, he became 

cordial. Officer Wolf testified that Hoffman’s eyes were very bloodshot and when 

he opened the driver’s door, a large waft of alcoholic beverage came in the 

officer’s direction. Officer Wolf testified that Hoffman told him he had been 

drinking with friends in Baltimore earlier that day, but specifically denied that he 

was driving the vehicle.

Officer Wolf testified that he then placed Hoffman under arrest for 

DUI, explaining:

The vehicle was parked somewhat sideways, not straight 

into the white painted lines, and through alcoholic 

beverage I could smell on Mr. Hoffman’s person, open 

containers in the vehicle, the bloodshot eyes, the 

crookedness of the vehicle, and the oddity of the vehicle 

being there at that time and everything, I had assumed 

that – I came to the conclusion due to the totality of the 

circumstances that Mr. Hoffman drove the vehicle 

shortly before I was there to that location.
5

(R.R. at 41a.) Officer Wolf then transported Hoffman to Central Booking, read 

Hoffman the DL-26 form and asked him to submit to a blood sample. Officer 

Wolf testified that Hoffman did not deny that he had been drinking that night but

denied driving and said he did not feel the blood sample was necessary.

On cross-examination, Officer Wolf acknowledged that the Boost 

Mobile where he found Hoffman inside the minivan shares a parking lot with Card 

Stadium Sports Collectible Store (Card Stadium). Officer Wolf was not aware that 

Hoffman was a co-owner of Card Stadium, but testified that Hoffman told him 

during the incident that he worked at Card Stadium and he lived approximately ten 

minutes away. Officer Wolf testified that he did not put his hand on the minivan’s 

hood to check to see if the vehicle was still warm, and he could not testify as to 

when the minivan arrived in the parking lot that night.

James A. Pascotti (Pascotti) testified on behalf of Hoffman that they 

have been friends for years and on October 4, 2017, they attended a concert in 

Baltimore. Pascotti testified that they left the concert at approximately 11:00 or 

11:30 p.m., and that he drove Hoffman’s minivan back from the concert and 

parked it in the Boost Mobile parking lot at approximately 12:30 or 1:00 a.m. 

Pascotti testified that he remained in the parking lot for a little bit as Hoffman and 

the other man they were with wanted to hang out, but Pascotti left shortly 

thereafter.

The trial court found that, given the totality of the circumstances, 

Officer Wolf did not have reasonable grounds to believe that Hoffman was 
6

operating or in actual physical control of the movement of the vehicle while under 

the influence of alcohol. Therefore, the trial court sustained Hoffman’s appeal and 

rescinded PennDOT’s suspension of his operating privilege. This appeal 

followed.2

II.

To sustain a suspension of a licensee’s operating privilege under 

Section 1547 of the Vehicle Code for refusal to submit to chemical testing,

[Penn]DOT must establish that the licensee: (1) was 

arrested for driving under the influence by a police 

officer who had reasonable grounds to believe that the 

licensee was operating or was in actual physical control 

of the movement of the vehicle while under influence of 

alcohol; (2) was asked to submit to a chemical test; (3) 

refused to do so; and (4) was warned that refusal might 

result in a license suspension.

Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 

1203, 1206 (Pa. 1999) (citations omitted). Only the first element of this standard is 

at issue in this appeal. PennDOT argues that the trial court erred as a matter of law 

in determining that Officer Wolf did not have reasonable grounds and in 

substituting its judgment for that of Officer Wolf. We disagree.

 

2 Our review in a license suspension case is limited to determining whether the findings 

of fact are supported by competent evidence and whether the trial court committed an error of 

law or an abuse of discretion. Gammer v. Department of Transportation, Bureau of Driver 

Licensing, 995 A.2d 380, 383 n.3 (Pa. Cmwlth. 2010).
7

The standard of reasonable grounds to believe that a licensee was 

operating or was in actual physical control of the movement of a vehicle while 

under the influence is not very demanding, does not rise to the level of probable 

cause required for a criminal prosecution, and it is not necessary for the officer to 

be correct in his belief. See Banner, 737 A.2d at 1207; Gammer v. Department of 

Transportation, Bureau of Driver Licensing, 995 A.2d 380, 384 (Pa. Cmwlth. 

2010). “Reasonable grounds exist when a person in the position of the police 

officer, viewing the facts and circumstances as they appeared at the time, could 

have concluded that the [licensee] was operating the vehicle while under the 

influence of [alcohol].” Banner, 737 A.2d at 1207 (citing DiPaolo v. Department 

of Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Cmwlth. 1997)). 

In other words, “[a]n officer’s belief that the licensee was driving will justify a 

request to submit to chemical testing if one reasonable interpretation of the 

circumstances supports the officer’s belief.” Helt v. Department of Transportation, 

Bureau of Driver Licensing, 856 A.2d 263, 266 (Pa. Cmwlth. 2004) (citation 

omitted).

In determining if this standard has been met,

the court must consider the totality of the circumstances, 

including the location of the vehicle, whether the engine 

was running, and whether there was other evidence 

indicating that the motorist had driven the vehicle. 

Banner, [] 737 A.2d at 1207. “[A]t the very least, there 

must be some objective evidence that the motorist 

exercised control over the movement of the vehicle at the 

time he was intoxicated.” Id. [] at 1207. It is immaterial 

whether alternative reasonable explanations for how the 

motorist came to be as he was found exist. [Department 
8

of Transportation, Bureau of Driver Licensing v.] Bird, 

578 A.2d [1345,] 1348 [(Pa. Cmwlth. 1990)].

Gammer, 995 A.2d at 384. (Emphasis added.) See also Marnik v. Department of 

Transportation, Bureau of Driver Licensing, 145 A.3d 208, 212 (Pa. Cmwlth. 

2016) (noting requirement of objective evidence that the licensee exercised control 

over the movement of the vehicle); Sestric v. Department of Transportation, 

Bureau of Driver Licensing, 29 A.3d 141, 144 (Pa. Cmwlth. 2011) (holding that 

there must be some other objective evidence establishing a time frame between the 

licensee’s driving and his intoxication when an officer does not observe the 

licensee behind the wheel).

We agree with the trial court that, given the totality of the 

circumstances, there is no objective evidence that Hoffman exercised control over

the movement of the vehicle while he was intoxicated. PennDOT stresses that 

there is objective evidence because Officer Wolf found Hoffman passed out in the 

driver’s seat of the minivan with the keys in his hand, two open beer containers 

were in the vehicle, and it was parked crooked. While that gave Officer Wolf

reasonable grounds to surmise that Hoffman had been drinking, that did not give 

him a basis to determine that he was operating the vehicle while drinking. To the 

contrary, when Officer Wolf arrived, the vehicle was not running, its lights were 

not on, the keys were not in the ignition and the back sliding door was open.

Officer Wolf admitted that he did not check the hood of the vehicle to see if it was 

warm and could not testify as to when the vehicle arrived in the parking lot or how 

it got there, only that it arrived sometime between approximately 1:00 a.m. and his 

second business check at 4:27 a.m., a significantly large window of time. See, e.g., 
9

Fierst v. Department of Transportation, Bureau of Driver Licensing, 539 A.2d 

1389 (Pa. Cmwlth. 1988) (finding a reasonable officer could not conclude that 

there were reasonable grounds for believing licensee was under the influence while 

driving, given one-hour time lapse between accident and when licensee was found 

drinking at his home).

This case is similar to that of Banner, where an officer was dispatched 

to check a suspicious vehicle parked along a roadway at approximately 4:20 a.m. 

Upon arriving at the scene, the officer found the licensee sleeping in a reclined 

position in the passenger seat of the vehicle. While the keys were in the ignition, 

the engine was not running, the lights were off, and no alcohol was found in the 

vehicle. When the officer tapped on the window, the licensee awakened and 

reached for the keys in the ignition. After viewing the totality of the 

circumstances, our Supreme Court determined that the information available to the 

officer fell short of the minimum evidence required to support a finding of 

reasonable grounds. 737 A.2d at 1207. The Banner court noted that the only 

evidence tending to show that the licensee had control over the vehicle’s 

movement was its location parked alongside a road near a convenience store, and 

this was too tenuous a connection to provide reasonable grounds for believing the 

licensee was in actual physical control of the movement of the vehicle while 

intoxicated. Id. at 1208. The court noted, “[a] line must be drawn to distinguish 

circumstances where a motorist is driving his vehicle while under the influence of 

alcohol, which the statute is intended to prevent, and circumstances where a 

motorist is physically present in a motor vehicle after becoming intoxicated.” Id. 

at 1208. But see Gammer, 995 A.2d at 384 (reasonable grounds existed where 
10

officer found licensee in the driver’s seat with the car running while parked in a 

parking lot); Department of Transportation, Bureau of Driver Licensing v. Paige, 

628 A.2d 917 (Pa. Cmwlth. 1993) (reasonable grounds existed where officer found 

licensee slumped over steering wheel of his vehicle with the key in the ignition and 

parking lights on). In this case, all PennDOT showed was that Officer Wolf had a 

reasonable basis to believe that Hoffman was physically present in the motor 

vehicle while intoxicated; it did not present objective evidence that Officer Wolfe 

had a reasonable belief that he was driving the vehicle while intoxicated.

Because there was no objective evidence here to demonstrate that 

Hoffman exercised control over the movement of the vehicle at the time he was 

intoxicated, the trial court did not substitute its judgment for that of Officer Wolf 

and did not err in sustaining Hoffman’s appeal.

Accordingly, the order of the trial court is affirmed.

___________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Hoffman :

:

v. : No. 176 C.D. 2018

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

O R D E R

AND NOW, this 6

th day of August, 2018, the order of the Court of 

Common Pleas of Dauphin County in the above-captioned matter is hereby 

affirmed.

___________________________________

DAN PELLEGRINI, Senior Judge