IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT S. WALDMAN : CIVIL ACTION

:

v. :

:

TROOPER BRADFORD, et al. : NO. 02-4091

OPINION

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE February 26 , 2003

On January 9, 2003, the Court held oral argument on Defendants’ Motion for

Summary Judgment. After hearing argument from both sides, the Court granted the Defendants’

Motion, finding that Troopers Tyrone Bradford and Keith Everett were entitled to sovereign

immunity on Plaintiff’s state law claims and qualified immunity on the civil rights claims. At the

conclusion of the hearing, we explained our reasons for the decision and entered judgment in

favor of the Defendants on all counts. We now take the opportunity to memorialize that which

was explained in open court.

I. Facts

At approximately 11:00 p.m., on April 28, 2001, while Mr. Waldman, his wife,

and a few friends were returning from dinner in the Society Hill section of Philadelphia, the

vehicle driven by Mr. Waldman was rear-ended by another on the Schuylkill Expressway. Mr.

Waldman maintained control of his car and pulled to the side of the road. The other vehicle

crashed into the retaining wall. As a result, there was a substantial distance between the final

location of the two vehicles. A passenger in Mr. Waldman’s car phoned the police to report the

accident. After police arrived on the scene and were attending to the other vehicle, Mr. Waldman

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phoned the police to alert them to the fact that he had also been involved in the accident. After

waiting several minutes, Mr. Waldman left the area of his car and approached the other vehicle. 

Trooper Bradford testified that he first saw Mr. Waldman as he was approaching

the crash site. (Bradford Deposition, 21). As he approached, Mr. Waldman stated, “Officer, we

were also involved in the accident.” (Waldman Deposition, 19). Because Trooper Bradford

smelled alcohol on Mr. Waldman’s breath, he asked him to perform a field sobriety test. 

(Waldman Deposition, 19-22). Bradford had Waldman perform the one-legged stand, during

which Bradford told Waldman he wobbled. (Waldman Deposition, 29). Bradford then had

Waldman perform the heal-toe walk, which Bradford claims Waldman failed. (Bradford

Deposition, at 24). 

At that point, Bradford placed Waldman under arrest for driving under the

influence, (“DUI”). Waldman was handcuffed and placed in the patrol car. After stopping at

Waldman’s car to obtain information pertinent to the accident, Bradford and Everett drove

Waldman to the Bridgeport Fast Track Facility, where breathalyzer tests are administered by

Montgomery County Sheriff’s deputies. After performing the breathalyzer test on Waldman,

Corporal Thomas McDonald determined that Waldman’s blood alcohol content, (“BAC”), was

.021%, well under the legal limit. 

Waldman requested to call his wife to have her come and pick him up. (Waldman

Deposition, at 34). The officers declined his request, handcuffed him again, and drove Waldman

to the State Police Belmont Barracks to photograph and fingerprint Waldman and complete the

paperwork reflecting an arrest. (Bradford Deposition, at 41). Waldman was released from the

Belmont Barracks to his wife at approximately 2:15 a.m. (Waldman Deposition, at 36). 

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As a result of these incidents, Mr. Waldman filed this federal suit, alleging

violations of his civil rights and state claims of false arrest, false imprisonment, assault, battery,

and intentional infliction of emotional distress.

II. Legal Standard

When a defendant asserts a qualified immunity defense in a motion for summary

judgment, the district court must first determine whether the plaintiff has properly asserted a

deprivation of a constitutional right. If so, the court must then determine if the right was clearly

established at the time of the alleged violation. Schieber v. City of Philadelphia, F.3d , 2003

WL 360961 *5 (3d Cir. Feb. 20, 2003). In order to be considered clearly established, "[t]he

contours of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right." Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir.

2003)(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 

III. Discussion

As we stated at the oral argument, we believe the case can be broken into three

distinct parts: (1) the field sobriety test; (2) the arrest; and (3) the time Mr. Waldman remained in

custody after the breathalyzer test results. 

A. The Field Sobriety Test

With regard to the administration of the field sobriety test, we believe that

the Plaintiff cannot establish the violation of any constitutional right. The Plaintiff argues that, at

the time Trooper Bradford administered the field sobriety tests, he had no knowledge that Mr.

Waldman was the driver of the other vehicle. Without knowledge that Mr. Waldman was the

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1There is some dispute over whether Mr. Waldman said “we” were involved in

the accident or “I” was involved in the accident. (Waldman Deposition, at 19; Bradford

Deposition, at 22). 

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driver of the other vehicle, argues the Plaintiff, there was no probable cause to believe that he

was driving under the influence. Hence, Mr. Waldman’s constitutional rights were violated.

Probable cause exists when “the facts and circumstances within the defendant’s

knowledge and of which he had reasonably trustworthy information were sufficient to warrant a

prudent man in believing that the plaintiff had violated the law.” Merkle v. Upper Dublin High

School, 211 F.3d 782, 789 (3d Cir. 2000). Pennsylvania law provides that,

A person shall not drive, operate or be in actual physical control of

the movement of any vehicle:

(1) while under the influence of alcohol to a degree which renders

the person incapable of safe driving; . . . 

(4) while the amount of alcohol by weight in the blood of the

person is 0.10% or greater . . . . 

75 Pa.C.S.A. § 3731. 

Here, Officer Bradford was faced with a man approaching the crash scene, saying,

“we were involved in this accident, too.” (Waldman Deposition, at 19).1

 Bradford testified that

he smelled alcohol on Waldman’s breath and Waldman testified that he had 2 or 3 glasses of

wine with dinner. (Waldman Deposition, at 4). 

Under these circumstances we believe that Bradford had probable cause to

administer the field sobriety test. See Commonwealth v. McMullen, 756 A.2d 58, 61 (Pa.Super.

2000). (“[o]bjective criteria such as glassy eyes, slurred speech, or alcoholic odors serve as the

basis for requesting a field sobriety test”). It was reasonable for Bradford to conclude that the

person who approached him as the speaker for the other car involved in the accident was, in fact,

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the driver. Trooper Bradford and Rochelle Waldman both stated that there was a great distance

between the crash site and Mr. Waldman’s car. Hence, at the time Mr. Waldman arrived at the

crash site, Trooper Bradford had no way of knowing that anyone else was even in the car with

Mr. Waldman. Having smelled alcohol on Mr. Waldman’s breath, we believe probable cause

existed to perform the field sobriety tests. Hence, no violation of Mr. Waldman’s constitutional

rights occurred. 

B. The Arrest

Similarly, we conclude that Mr. Waldman’s arrest violated no constitutional

rights. Trooper Bradford testified that Mr. Waldman failed both the one-legged stand and the

heal-toe walk. (Bradford Deposition, at 24). The Plaintiff conceded his failure of the sobriety

tests for purposes of summary judgment. Moreover, in his deposition, Mr. Waldman stated that

Trooper Bradford told him he wobbled during the one-legged stand. Mr. Waldman responded

that he was a klutz. (Waldman Deposition, at 29). In his deposition, Mr. Waldman also stated

that he did not do the heal-toe walk properly. (Waldman Deposition, at 29). Considering his

concession that he failed the field sobriety tests, and our prior determination that Trooper

Bradford reasonably concluded that Waldman was the driver, there was probable cause for

Waldman’s arrest. Hence, Waldman has failed to establish a constitutional violation.

C. Post-Breathalyzer Detention

The third component of Mr. Waldman’s detention is the most troubling. Once his

BAC was established to be .02, the Plaintiff argues that his continued detention violated his

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constitutional rights. We agree. Pursuant to Pennsylvania law, a BAC of .05% or less in the

circumstances presented here results in a finding that the person was not under the influence.

If chemical testing of a person’s breath, blood or urine shows:

(1) That the amount of alcohol by weight in the blood of the person

tested is 0.05% or less, it shall be presumed that the person tested

was not under the influence of alcohol and the person shall not be

charged with any violation under section 3731(a)(1), (4), or (5) . . .

or, if the person was so charged prior to the test, the charge shall be

void ab initio. 

75 Pa.C.S.A. § 1547(d). 

Here, Trooper Bradford testified that the .021 and .023 BAC’s resulted in

insufficient evidence to proceed with prosecution. He noted in the arrest report that the charge

was void ab initio. (Bradford Deposition, at 41). At that point, there was no probable cause to

believe Mr. Waldman had committed the crime of DUI. Yet, after getting the results of the

breathalyzer, Troopers Bradford and Everett proceeded to handcuff Mr. Waldman, place him in

the patrol car, transport him to the Belmont Barracks, fingerprint and photograph him. 

(Waldman Deposition, 34-36). This further detention was unconstitutional. 

However, that is not the end of this court’s inquiry on the issue of qualified

immunity. Having determined that Mr. Waldman’s constitutional rights were violated, we must

now determine if the right was clearly established. “The concern of the immunity inquiry is to

acknowledge that reasonable mistakes can be made as to the legal constraints on particular police

conduct.” Saucier v. Katz, 533 U.S. 194, 205 (2001). With this in mind, we conclude that a

reasonable officer, in the position of Troopers Bradford or Everett, would not realize that the

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continued detention of Mr. Waldman to complete administrative paperwork would violate his

rights.

From our earlier discussion of 75 Pa.C.S.A. § 1547(d), stating that a charge of

DUI is void ab initio when the breathalyzer result is 0.05% or less, one might conclude that no

reasonable officer would have continued to detain Mr. Waldman. However, the language of

§1547(d) is not clear. The statute says that the “charge” is void. It does not address the arrest or

what effect a BAC of 0.05% or less has on the arrest. Reasonable people could argue over the

meaning of the statute section and how the statute affects an arrest, as was evidenced by the two

lawyers in this case arguing over this language for the better part of an hour in my courtroom. 

Moreover, the officers were also faced with a conflicting statute, requiring that

any person arrested for a felony or misdemeanor must be fingerprinted within 48 hours of arrest. 

18 Pa.C.S.A. § 9112(a). This statute is clear and unambiguous. 

§ 9112. Mandatory fingerprinting

(a) General rule. - Fingerprints of all persons arrested for a felony

[or] misdemeanor . . . shall be taken by the arresting authority, and

within 48 hours of the arrest, shall be forwarded to, and in a

manner and such a form as provided by, the central repository.

Considering the language of this statute and Trooper Bradford’s statement that the fingerprinting

was “something we have to do,” (Waldman Deposition, at 35), the “booking” of anyone arrested

was a matter of procedure. 

The Supreme Court has held that, “[i]f the officer's mistake as to what the law

requires is reasonable, . . . the officer is entitled to the immunity defense.” Saucier, at 121. 

Hence, Troopers Bradford and Everett faced a situation where one statute would seem to require

Mr. Waldman’s immediate release and the other his continued detention. When the situation is

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2We also note that the Troopers are entitled to immunity on the state law claims. 

It is settled Pennsylvania law that Commonwealth officials acting within the scope of their duties

enjoy the same immunity as the Commonwealth, itself. Litzenberger v. Vanim, 2002 WL

180263 (E.D. Pa. Feb. 5, 2002)(citing LaFankie v. Miklich, 152 Pa.Cmwlth. 163, 618 A.2d 1145,

1148-49 (Pa.Commw.Ct. 1992).

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considered “academically,” the language of § 1547(d) causes confusion among those who

possess legal degrees, let alone an officer attempting to follow state law. When considered “in

reality,” the officers followed a statutorily required procedure. 

At the oral argument, I made my opinion clear. If the Commonwealth was

seeking a determination on the constitutionality of its policy (to detain, photograph, and

fingerprint a person, and complete the administrative paperwork necessary to memorialize an

arrest) once a breathalyzer test comes back 0.05% or less, it is not constitutional. However,

under the circumstances presented here, we believe the officers’ mistake was reasonable and find

that they are entitled to qualified immunity.2

As such, this Court previously entered summary judgment in favor of the 

Defendants on all claims.

BY THE COURT:

 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

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