Melendez-Diaz v. Massachusetts, --U.S.--, (Supreme Court Docket No 07-591)

The United States Supreme Court held that a laboratory analyst's "certificate" identifying a substance as cocaine is a testimonial statement, subject to the 6th Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004).  The defense in Melendez-Diaz apparently did not argue that the test results were unreliable, but a timely Crawford objection to the admission of the "certificate" was raised at trial.  Melendez-Diaz was convicted of Massachusetts' equivalent of PWID/Cocaine, and he appealed.  Massachusetts' intermediate appellate court affirmed, and its Supreme Judicial Court denied review.  The United States Supreme Court granted certiorari, and has now reversed, holding that the test results were inadmissible because the technician who performed the testing did not testify at trial.

 

Editor's Note: A complete analysis of the Melendez-Diaz decision is beyond the scope of this brief alert.  Nevertheless, it's safe to say that this holding will affect DUI prosecutions at least as much as it will drug cases.  The majority opinion specifically states that lab reports cannot be admitted as business records, thus invalidating the line of Pennsylvania cases beginning with Commonwealth v. Kravontka, 558 A.2d 865 (Pa. Super. 1989) and ending with Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007). 

 

For those preparing to try DUI or drug cases, it appears that the technician who performed scientific testing is now a required witness, unless the defense stipulates to the admissibility of the lab report. 

 

For the purposes of preliminary hearings, the time-honored holdings Commonwealth v. Branch and Commonwealth v. Rick should still be good law...the Commonwealth, after all, is certifying to the MDJ that the reports' authors will be available for live testimony, should the case proceed to trial.

 

In addition, the constitutional right to confrontation of witnesses is a trial right.  Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Com. v. Tyler, 587 A.2d 326 (Pa. Super. 1991). 

 

The limited purpose of a preliminary hearing is to avoid the incarceration or trial of the defendant unless there is a judicial finding that the Commonwealth has established that a crime has been committed and that the defendant could be connected with that crime.  The purpose is not to prove the defendant's guilt nor to assess the credibility of the Commonwealth's witnesses.  The opportunity to test the credibility of those witnesses, the core of the Confrontation Clause, is when they are brought before the fact finder at trial.

 

 

DUI:Licensing Revocation- - Lack of Reasonable Grounds to Believe DUI

Committed

Schindler v. Dept. of Transp. Bureau of Driver Licensing,

__ A.2d __, 2009 WL 1507138 (Pa. Cmwlth. 06-01-09)(Allegheny).

This case addressed whether a police officer had reasonable grounds to believe a DUI offense has been committed. Here, Derek Daniel Schindler's operating privileges were suspended for one year for refusing to submit to chemical testing in violation of Pa. C.S. §1547(b)(1)(i) following a charge of driving under the influence of alcohol or a controlled substance in violation of 75 Pa. C.S. §3731. Schindler appealed the suspension of his operating privileges. The court of common pleas sustained the appeal finding the arresting officer was without reasonable grounds for a DUI arrest. PennDOT appealed.

 

Upon arriving at the scene at 3:15 a.m., the arresting officer, found Schindler's

car on its roof in the middle of the road with broken glass strewn through the interior of the car and Schindler sitting outside the vehicle on the side of the road. The officer did not observe any injuries to Schindler, but found Schindler's speech slurred, gait unsteady, and that he had trouble maintaining balance. Schindler failed three field sobriety tests, the walk-and-turn, one-leg stand, and finger-to-nose tests. No pills, vials, or illicit drugs were found in the car. Schindler had no track marks on his arms, did not smell of alcohol, and his eyes were neither glassy nor bloodshot. A Breathalyzer test administered on the scene ruled out the presence of alcohol in Schindler's system.

 

The officer arrested Schindler for DUI and advised him of standard chemical test warnings. Schindler at first consented to the chemical test. On arriving at the hospital, the officer read the warnings from Form DL-26 verbatim. Schindler refused to take the chemical test and to sign the form. Schindler was then transported to the police station and detained overnight. The next day, Schindler's mother picked him up and took him to the hospital where he was diagnosed with closed head trauma and treated for cuts and bruises from the crash. At the hospital Schindler also underwent a urinalysis which showed no drugs or alcohol present in his system.

 

Citing Banner v. Dept. of Transp., Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999), the court reiterated that all of he facts and circumstances at the time, not just those pointing to DUI, must be considered for an officer to determine whether or not reasonable grounds exist. Here, the facts differed significantly from those found to be sufficient in Stein v. Dept. of Transp., Bureau of Driver Licensing, 857 A.2d719, 726 n. 12 (Pa. Cmwlth. 2004) where the motorist had also failed field sobriety tests. Though Schindler had slurred speech, an unsteady gait, and failed three sobriety tests, his eyes were not glassy or bloodshot, and no strong odor of alcohol was present, as was the case in Stein. Further, the court pointed out that because Schindler had just been involved in a "violent rollover accident" his inability to perform the three field sobriety tests was, without more, "insufficient to constitute reasonable grounds." Therefore, the court held that reasonable grounds were not present on the facts of this case.

 

Opinion by: Leavitt, J. Joined by: Smith-Ribner, J. Dissent by: Flaherty, S.J.

Sentencing: Restitution - Amendment of Order Imposing, 18 Pa.C.S. §1106(c)(3)

 

 

Commonwealth v. Dietrich,

___ A.2d ___, 2009 WL 1464143 (Pa. 05-27-09)(Dauphin)

Matthew Dietrich pled guilty to DUI, homicide by vehicle while DUI, aggravated assault while DUI and various summary offenses stemming from a head-on collision he caused by crossing the center line. Dietrich, whose BAC was 0.18%, injured the other driver and killed the other driver's father who was a passenger in his son's car. The trial court sentenced Dietrich to terms of incarceration and to restitution. After having a discussion with the parties about mandatory restitution, the Motor Vehicle Financial Responsibility Law and accident-related litigation that was pending against Dietrich, the court ordered that he pay $10,000 each to the driver Dietrich injured and to the passenger's estate. The court also noted that it might modify its order at a later date. More than 6 months later the court amended its order fixing restitution to the passenger's estate at $111233.93 and to the driver at $4258, but did not explain why it took this action.

 

Dietrich appealed to Superior Court claiming that the amendment was illegal, specifically, that the trial court lacked jurisdiction to amend the order because it was more than 30 days since its issuance. See 42 Pa.C.S. §5505 ("§5505") (providing that ordinarily a court may not modify its orders after 30 days have passed). The Commonwealth conceded error but asked that, instead of reinstating the original order, Superior Court remand for resentencing.

 

Superior Court vacated the judgment of sentence and remanded for resentencing. In taking this action, the court reviewed the provisions of 18 Pa.C.S. §§1106 (2) and (3)(which, respectively, require a court to state its reasons for the restitution being ordered and allow a court to amend its order if it states its reasons for doing so), and concluded from its review that the original order was illegal, purportedly because the trial court had not stated its reasons for awarding $10, 000 to each of the victims. It said also that the trial court lot the ability to amend the original order after 30 days and that it there were some problem with calculating the actual amount of restitution that should be ordered as part of the defendant's sentence, the court should have deferred sentencing.

 

In a 4-3 decision, the Pennsylvania Supreme Court reversed. The court determined that the original restitution order was not illegal; that based on the discussions between the court and parties, and the absence of any objections, there was an explanation for what the court had done in awarding $10,000 to each victim (or a victim's estate). The trial court's subsequent amendment of that order, however, was improper as it was beyond 30 days and therefore violated §5505. The court noted that the provisions of §1106(c)(3) create an exception to that general rule if the court states its reasons for the amendment, something not done in this case. The court reversed Superior Court's order to the extent it had invalidated the original order and reinstated that order. It also vacated the amending order and remanded noting that any future modification of the original order had to be made in conformity with §1106(c)(3).

 

Opinion by: Eakin, J. Joined by: Todd, McCaffery and Greenspan, JJ. Dissent by: Saylor, J. Joined by: Castille, C.J. and Baer, J.

 

 

DUI: Proof of Criminal Negligence; Merger of Offenses

Commonwealth v. Schmohl,

___ A.2d ___, 2009 WL 1451451 (Pa. Super. 05-26-09)(Cumberland)

A Superior Court panel upheld convictions for Aggravated Assault While DUI (AA/DUI), REAP, and Reckless Driving. The panel also held that DUI - high rate of alcohol, (75 Pa. C.S. 3802(b)), merges with AA/DUI for the purposes of sentencing. Daniel Schmohl had admitted to consuming "at least" 5-6 sixteen-ounce beers before leaving a tavern and striking a pedestrian, causing serious bodily injury. The Commonwealth presented reconstruction evidence indicating that at the point of impact, Schmohl's right-side tire had crossed the fog line of the roadway, and that the victim had been thrown over 100 feet, into a telephone pole. The evidence also indicated that Schmol had been travelling at approximately 50 mph at impact, in a 35mph zone. Significantly, others in Schmohl's party, who left the tavern at the same time and travelled the same road, had all seen the victim and his friends and had managed to drive around them without incident. Schmohl's BAC at the time of the breath test was .128%.

 

On appeal, Schmohl did not challenge his convictions for DUI. Rather, he claimed that the Commonwealth had not proven criminal negligence beyond a reasonable doubt. In upholding the convictions, the panel pointed to several facts-the consumption of several large beers, the speed, the condition of the roadway at the point of impact, and the defendant's admission that he did not have his high beams activated-and concluded that the evidence was clearly sufficient to prove the required mens rea. It had been established at trial that the roadway was essentially "straight and unobstructed" where the victim was struck. The panel acknowledged that mere DUI, without more, cannot support a conviction for REAP (citing Commonwealth v. Jeter, 937 A.2d 466 (Pa. Super. 2007)). Nonetheless, the panel found sufficient additional evidence of recklessness on these facts.

 

The sentencing court had merged DUI-general impairment with DUI-high rate of alcohol. The sentencing court also found that DUI-high rate of alcohol contained an element (BAC) not included in the definition of AA/DUI. Therefore, Schmohl was sentenced consecutively on that charge, and he appealed the legality of the sentence. The panel held that the two charges did merge for the purposes of sentencing, referring to a Commonwealth Court decision, Zimmerman v. Pennsylvania DOT , 759 A.2d 953 (Pa. Cmwlth. 2000, which opined that DUI is a lesser-included offense of AA/DUI. Therefore, the panel vacated the sentence on the DUI-high rate of alcohol charge.

 

Opinion by: Allen, J. Joined by: Cleland and Fitzgerald (sitting by special designation), JJ.

 

Editor's Note: This summary was prepared by Max Little who observes that: "The sentencing decision is curious, to the extent that the panel relied upon a Commonwealth Court decision involving the doctrine of merger in the context of civil license suspension. Nonetheless, the result is in accord with the line of cases holding that Homicide by Vehicle/DUI merges with the underlying DUI charge for the purposes of sentencing."

Search & Seizure: Mere Encounter

 

 

Commonwealth v. Kendall,

___ A.2d ___, 2009 WL 1497099 (05-29-09)(Franklin)

Two of three Superior Court judges held that police officers did not need reasonable suspicion to approach a driver who had pulled off the road in an effort to let the officers pass. The arresting officer testified that he followed the driver for approximately thirty seconds, at a distance varying from fifty to one hundred feet. During this period, he observed no erratic driving or vehicle code violations. The driver then signaled a right hand turn, and pulled onto the shoulder. The officer pulled in behind Gregory Kendall, waited for a brief period, ran Kendall's license plate and then activated his overhead lights and approached the car. The officer testified that he was concerned that the driver may have experienced "vehicle failure." Upon speaking with the driver, the officer observed several indicia of intoxication, and eventually placed him under arrest for suspected DUI. His BAC was .14%.

 

Kendall had moved to suppress the evidence of the arrest, claiming that he had been subjected to an investigative detention, unsupported by reasonable suspicion. The suppression court denied the motion, finding that the initial contact between Kendall and the officers was a mere encounter, which ripened into an investigative detention only after Kendall was observed to have been drinking.

 

In upholding the suppression court's ruling, the panel majority characterized the contact between Kendall and the police as "a mere encounter where the officer was trying to determine what was going on and whether the motorist might need assistance." The majority commented that police officers have a duty to assist motorists who may be ill, or broken down. The majority compared this situation to several other "motorist followed by police" cases, and concluded that the record in this case supported the suppression court's findings of fact and conclusions of law. As such, the majority deferred to the suppression court's assessment of the situation.

 

Opinion by: Klein, J. Joined by: Stevens, J. Dissenting statement by: Kelly, J.

 

Editor's Note: This summary was prepared by Max Little, PDAA's Traffic Resource Prosecutor. Max also adds that: "For those of you who litigate traffic-stop suppression issues, this decision is a must-read. It recaps the relevant cases, and provides support for the general proposition that police have a duty to attend to motorists in trouble, especially on deserted roadways late at night."

 

DUI: Weight of the Evidence - BAC Range of Result

Commonwealth v. Sibley,

___ A.2d ___, 2009 WL 1203366 (Pa. Super. 05-05-09)(Butler)

Following a bench trial, Matthew Sibley was found guilty of 2 counts of DUI and 2 summary offenses. He appealed claiming that the blood alcohol concentration ("BAC") testing evidence was insufficient to support his conviction for violating 75 Pa.C.S.A. §3802(c)(blood BAC ≥ 0.160 %). At trial, Sibley had called the director of the laboratory that had conducted the testing on the blood taken from him, which yielded a result of .0162%. The lab director indicated that the equipment used to analyze the sample drawn had a 3.00% coefficient of variation, which meant that Sibley's actual BAC could have been anywhere within the range of .0157% to .0167%. Because his blood may have been under .0160%, Sibley maintained the evidence was insufficient to support his conviction for violating §3802(c).

 

In rejecting Sibley's claim, Superior Court first noted that it was actually a weight-of-the-evidence, not a sufficiency-of-the-evidence, claim. His argument, the court said,

 

would demand a test result so high and/or a coefficient of variation so low that his actual BAC could not possibly have been beneath 0.160%. The law simply does not require this level of certainty in criminal verdicts. Commonwealth v. Smith, 904 A.2d 30, 38(Pa. Super. 2006) (stating the Commonwealth need not preclude every possibility of innocence or establish guilt to a mathematical certainty). Rather, the court needed only to be convinced beyond a reasonable doubt. Id.

 

(Citation in original.) Superior Court's review of the trial transcript led it to conclude that the trial judge had evaluated the evidence in a manner consistent with these principles; that while he acknowledged the evidence was not 100%, there was a suitable factual basis for him to conclude, beyond a reasonable doubt, that Sibley's BAC level met the statutory requirement. Judgment of sentence: affirmed.

 

Opinion by: Colville, S.J. (sitting by special appointment). Joined by: Lally-Green and Gantman, JJ.

 

 

Search & Seizure: Warrantless Search - Vehicle

Arizona v. Gant,

___ U.S. ___, 2009 WL 1045962 (U.S., 04-21-09)

By a 5-4 vote, the Court dramatically narrowed the rule established in New York v. Belton, 453 U.S. 454 (1981), and held that police may not search a vehicle "incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Instead, held the Court, Belton "authorizes police to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." In addition, the Court (adopting a proposal set forth by Justice Scalia in his concurring opinion in Thornton v. United States, 541 U.S. 615, 632 (2004)), held that police may search a vehicle incident to a lawful arrest if "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

 

A Note from PDAA Traffic Safety Resource Prosecutor Max Little: The Gant decision appears to have little effect on Pennsylvania search-and-seizure law. In fact, the majority opinion notes the Pa. Supreme Court's holding in Commonwealth v. White, 669 A.2d 896 (Pa. 1995), where the Belton rule was rejected after analysis under the Pennsylvania Constitution. Warrantless auto searches in Pennsylvania are permitted when: 1) the occupants give valid consent; 2) during a properly-conducted inventory following impoundment; and 3) where exigent circumstances and probable cause exist--Pennsylvania's "limited automobile exception"-- see Commonwealth v. Copeland, 955 A.2d 356 (Pa. Super. 2008), appeal denied, 962 A.2d 1194 (Pa. 2008). More clarification may be forthcoming; the Pa. Supreme Court has granted a Petition to File Allowance of Appeal nunc pro tunc in the case of In re: O.J., 958 A.2d 561 (Pa. Super. 2008)(Terry stop-and-frisk analysis applied to limited search of a car's console).

 

 

Search and Seizure: Warrantless Entry - Exigent Circumstances Found -Probable Cause - DUI

Commonwealth v. Fickes,

___ A.2d ___, 2009 WL 930162 (Pa. Super. 04-08-09)(York)*

A Superior Court panel found that exigent circumstances permitted an unwarranted entry into the curtilage of a residence, where a police officer was investigating a hit-and-run DUI crash. In Fickes, Officer Ross responded to the crash scene, obtained a general description of the offending car, and followed tracks he observed. The tracks indicated that the same car subsequently ran over a stop sign, before parking in an open garage, next to an apartment. From outside the garage, the officer could observe that the car was damaged, and that it had run into a couch as it entered, pinning the couch against a wall. The officer's impression of the garage was that it was "party headquarters, [with a] bunch of memorabilia and alcohol containers everywhere." The officer also heard ticking sounds coming from the car, indicating that it had recently been operated. Before actually entering the garage, the officer approached the front door of the apartment, knocked several times, but received no answer. He then entered the garage and knocked on the door from the garage to the apartment, and again received no answer. He then opened the car door, and immediately smelled alcohol. He had not been able to see inside the car because of window tinting. The Defendant was slumped over inside the car, manifestly intoxicated. His BAC was .179%. The trial court denied the Defendant's suppression motion, and following his conviction and sentence, the Defendant appealed.

 

In affirming the sentence, the Fickes panel specifically addressed the recent decision in Commonwealth v. Lee, ___ A.2d ___, 2009 WL 637245 (Pa. Super. 2009) [summarized in Prosecutor's Update Vol. 29 No. 4.]. In Lee, a DUI conviction was overturned where an officer followed a trail of radiator fluid into the backyard of a house, without a warrant, before contacting the Defendant. The Fickes court compared the two cases, and found, among other things, that in Lee there was no evidence that the driver of the truck being tracked was DUI. In contrast, the condition of the open garage, along with the fact that a stop sign had been run over on the way from the crash site to the garage, gave the Officer Ross probable cause to believe that the driver in Fickes was DUI. The Court then cited Commonwealth v. Dommel, 885 A.2d 998 (Pa. Super. 2005), another similar case involving possible DUI, and reiterated the principle that where DUI is suspected, there is a high likelihood that evidence (BAC test results) will be lost or destroyed if the police are required to wait until a warrant can be secured.

Opinion by: Bender, J. Joined by: Musmanno and Clelland, JJ.

 

Editor's Note: One of the factors in determining whether exigent circumstances permit warrantless entry is the gravity of the offense being investigated. The Fickes panel makes it abundantly clear that it considers DUI to be a very serious offense.

 

 

DUI: Refusal to Submit to Chemical Testing - Not Knowing or Conscious

Cadwalader v. Commonwealth of Pennsylvania, DOT,

___ A.2d ___, No. 1296 CD 2008 (Pa.Cmwlth. 04-06-09)

PennDOT appealed from an order of the Luzerne County Court of Common Pleas that sustained the appeal of Wendy Cadwalader from the one-year suspension of her license pursuant to 75 Pa.C.S. §1547 (suspension for failure to submit to chemical testing). Commonwealth Court reversed, reinstating Cadwalader's suspension.

 

In July of 2007, Cadwalader was pulled over by police for DUI and agreed to go to the police station for a breathalyzer. After completing an implied consent form, she was told she would be required to give two breath samples and failure to do this would be considered a refusal to take the test. She gave the first sample without any problem but failed to give a second, despite two tries, as she did not supply a continuous flow of air. At the time of the testing, she did not advise of any medical problem or condition that would have interfered with or prevented her from giving the second sample.

 

At a hearing held by the lower court, Cadwalader testified that she suffered from a panic disorder and that, during the testing, she was suffering from shortness of breath because she was experiencing a panic attack. She supplied testimony by her doctor who confirmed her history of a panic disorder and offered an opinion that Cadwalader's inability to provide second sample could have been the result of this condition. On cross examination, however, the doctor admitted he did not know what was involved in the breathalyzer testing or how much breath was required. He conceded that her blood alcohol level, which was determined from the first sample to be .16, could have affected her ability to give a second sample, and though he expressed the opinion that she might have been unable to provide the second sample due to a panic attack, he admitted he didn't know if this was true in this instance.

 

In its discussion, Commonwealth Court said it is now well-established that "anything less than a licensee's unqualified cooperation in completing the test constitutes a refusal," and that "even a licensee's good faith attempt to comply with the test constitutes a per se refusal where the licensee fails to supply a sufficient breath sample." (Citation omitted.) It ruled that the doctor's testimony was not legally competent to support the trial court's conclusion that Cadwalader's refusal to complete the test was not knowing or conscious (which would have permitted the suspension to be set aside) as it was equivocal and lacked foundation

 

Opinion by: Friedman, S.J.; Joined by: McGinley and Leavitt, JJ.

 

 

DUI: Refusal to Submit to Chemical Testing - 75 Pa.C.S. §1547

Stahr v. Commonwealth of Pennsylvania, DOT,

___ A.2d ___, 2009 WL 819369 (Pa. Cmwlth. 03-31-09)

Robert David Stahr sought review of the Luzerne County Court of Common Pleas' denial of his appeal of PennDOT's 1-year suspension of his license for failure to submit to chemical testing pursuant to 75 Pa.C.S. §1547. The "sole issue in this case [was] whether the police officer had a reasonable belief that Stahr was operating his vehicle in violation of Section 3802 of the Vehicle Code, as amended, 75 Pa.C.S. §3802 (relating to driving under the influence of alcohol), in order to request a chemical test."

 

While driving in a rural, unlighted area in late-December 2007, Stahr had an accident that caused his car to become hung up on the guardrail. He said the accident occurred because he was trying to avoid a deer. Stahr was unable to remove his car from the guardrail and left the site of the accident when he caught a ride with some passing motorists who dropped him off at his home. A state trooper who later came upon the car traced it to Stahr and went to Stahr's home. The trooper took Stahr back to Stahr's car. Stahr told the trooper that, after he had returned home, he had done some drinking. After they returned to the accident scene, a local police officer who had been called arrived and questioned Stahr, who admitted he had been driving when the accident occurred and also told the officer he had consumed alcohol, though the local officer said that Stahr had not told him that the drinking occurred at Stahr's home, after the accident. The officer smelled alcohol and said Stahr had an unsteady gait and slurred speech. The local officer acknowledged that nothing about the accident indicated it had involved a driver under the influence of alcohol. He arrested Stahr for violating 75 Pa.C.S. § 3802 (DUI) and then took him to a local hospital for chemical testing, which Stahr refused. Stahr was never charged. In March of 2008, however, PennDOT suspended Stahr's license for a year pursuant to 75 Pa.C.S. §1547(b), an action upheld by the court of common pleas.  

 

Commonwealth Court reversed that ruling, agreeing with Stahr that the arresting officer did not have reasonable grounds to suspect that Stahr was driving under the influence. The chief problem, the court said, was that there was no evidence of the timeframe between the accident and the officer's encounter with Stahr during which the officer had made the assessment that Stahr was intoxicated. The court noted that Stahr had not been found in his vehicle but rather had left the scene and returned to his home from which he was driven back to the scene sometime later by the state trooper who had identified him as the owner of the vehicle found on the guardrail. The court reversed the lower court's ruling and reinstated Stahr's driving privileges.

 

Opinion by: Butler, J. Joined by: Leadbetter, P.J. and Flaherty, S.J.

 

 

Vehicle Code: License Suspension - Prior Offense, 75 Pa. C.S.A. §§3804(e)(2)(i) and 3806

Gigous v. Commonwealth, Department of Transportation,

___ A.2d ___, 2009 WL 498676 (Pa. Cmwlth. 03-02-09)(Adams)

In a split decision, a panel of the court upheld PennDOT's DUI-related suspension of Gigous' license. Gigous was arrested and charged with DUI in Adams County in mid-April 2006. Five weeks later, while those charges were pending, Gigous was arrested and charged with DUI in Franklin County. In August of 2007, Gigous was given ARD on the Franklin County charge. He pled guilty to the Adams County charge in January 2008. With respect to that conviction, PennDot determined that Gigous had a prior offense-the Franklin County DUI charge-and suspended his license for 12 months pursuant to 75 Pa.C.S.A. §3804(e)(2)(i). On appeal Gigous argued that PennDOT erred in counting the Franklin County charge as a prior offense because it happened after the one in Adams County and therefore didn't qualify as a "repeat offense within ten years" as set forth in §3806(b)(addressing the calculation of prior offenses for purposes of, inter alia, §3804). The panel majority disagreed, saying that principles of statutory construction, including the requirement that a court must attempt to give effect to all provisions of a statute, required the contrary conclusion. Because the provisions of §3806(a) refer to dispositions "before the sentencing on the present violation," (in this case, the Adams County charge), the relevant inquiry was not when the Franklin County offense happened but when the disposition of that charge occurred. (Emphasis supplied.) Since the disposition on his Franklin County charge had taken place before the sentencing on his Adams County conviction, Gigous had a prior offense at the time of his sentencing for the Adams County DUI. The court observed that its analysis tracked Superior Court's ruling in Commonwealth v. Nieves, 935 A.2d 887 (Pa. Super. 2007), app. denied, 951 A.2d 1162 (Pa. 2008).

 

Opinion by: Simpson, J. Joined by: McGinley, J. Dissenting statement by: Kelley, S. J.

 

Editor's Note: Nieves involved a DUI prosecution in York County. The "prior

offense" issue arose in the context of sentencing, not license suspension.

 

 

License Suspension - Chemical Testing - Ability to Consent - Expert Testimony

Commonwealth, Dept. of Transportation v. Sitoski

PICS Case No. 09-0942 (C.P. Philadelphia May 5, 2009) Tereshko, J. (11 pages).

Where licensee presented unrebutted expert medical testimony that the combination of Ambien and a closed-head injury made him incapable of making a knowing and conscious refusal of chemical testing, licensee was entitled to have his license suspension rescinded. Affirmance recommended.

 

Defendant was arrested after a traffic accident and charged with driving under the influence of alcohol. At the police station, he refused to submit to chemical testing. Consequently, the Pennsylvania Department of Transportation (PennDOT) notified licensee that he would have his license suspended for one year.

 

Licensee appealed. The court sustained that appeal and rescinded the suspension. PennDOT appealed, and the court issued an opinion recommending affirmance.

Under the law, if PennDOT proves that a licensee has failed to submit to a chemical test, the burden shifts to the licensee to prove by competent evidence that he was physically unable to take the test or not capable of making a knowing or conscious refusal. "It is well settled that absent an obvious medical inability, a motorist must prove incapability of making a knowing and conscious refusal through competent and unequivocal medical testimony[,]" the court observed.

 

The court initially stated that PennDOT had waived any challenge to the expert's qualifications by failing to object when licensee moved to have the expert admitted as an expert in the case. It next examined the evidence and determined that licensee had met his burden of proof. Although licensee admitted consuming one or two beers several hours before the accident, he testified that he had also taken Ambien, prescribed by a doctor for his chronic sleep disorder. At the time of the accident, licensee struck his head on the steering wheel and suffered a closed-head injury.

 

Furthermore, licensee had a foot condition that caused him to walk with an uneven gait.

Licensee presented the unrebutted testimony of a medical expert who opined that the combination of Ambien and licensee's closed-head injury made him incapable of making a knowing and conscious refusal of chemical testing. According to the expert, the combination of the medication and the head injury caused licensee to be "very groggy, dazed and confused." The expert also testified that licensee's impairment was not the result of alcohol. He further testified that to a layperson, such as a police officer, licensee's uneven gait could be mistaken for staggering. PennDOT produced no expert medical testimony to contradict the testimony given by licensee's expert.

 

 

Boating While Intoxicated

Commonwealth v. Stillwagon

PICS Case No. 09-0964 (C.P. Beaver March 28, 2009) Dohanich, J. (6 pages).

An officer's observations of defendant's behavior were sufficient to establish probable cause of boating while intoxicated. The court denied defendant's writ of habeas corpus challenging the sufficiency of the evidence presented by the commonwealth at the preliminary hearing on the charge of operating a watercraft under the influence of alcohol pursuant to the Fish and Boat Code, 30 Pa.C.S. § 5502(a)(1).

 

The evidence at the preliminary hearing came solely from the testimony of the prosecuting officer, a waterways conservation officer. He and other officers were conducting safety compliance checks of vessels entering the Monaca Borough boat access on the Ohio River. The officer observed defendant in a motorboat, operating it at first, before he handed the helm to his wife. Upon the motor boat reaching the shore, Mr. Knox retrieved a vehicle and trailer. The officers then conducted their safety compliance check by requesting the defendant to produce the boat registration and safety equipment.

 

The officer noted defendant stumble and grab on to the seats, at which time he requested that the defendant step out of the boat. The officer then noticed that defendant exhibited red, glassy eyes and detected a strong odor of alcohol emanating from his mouth. The defendant was also swaying slightly

 

In reviewing a habeas corpus petition alleging the insufficiency of the evidence, the court must determine if the commonwealth showed sufficient probable cause that the defendant committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. Here, the crime charged was that defendant operated the boat after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely operating or being in actual physical control of the movement of the watercraft. The facts as observed by the officer showed sufficient basis for finding this to be the case here.

 

Accordingly, the court denied the petition for a writ of habeas corpus.

 

 

Sentencing - Aggravated Circumstances

Commonwealth v. Shawley

 PICS Case No. 09-0587 (C.P. Centre April 1, 2009) Kistler, J. (2 pages).

The court expressed surprise that defendant complained of a four-month sentence for recklessly endangering another person, and recommended affirmance, beginning its opinion, "My goodness gracious!"

 

The court stated that the "circumstances of this case WERE aggravated...." Defendant was a mother of two infants who stayed out partying with friends until "the wee hours of the night" and then was unavailable to accept custody of them when the father had to leave for work in the morning. When father could not reach mother, he left the children with a daycare provider. Mother, then still drunk, went to pick up the children from the daycare provider where they were safe and secure. She almost immediately caused an automobile accident where she and the children were injured.

 

Considering all these circumstances, the court found that a sentence in the aggravated range for each of the counts for recklessly endangering another person was justified. The sentence given was in the aggravated range for these counts.

Accordingly, the court recommended affirmance.

 

 

License Suspension - Reasonable Suspicion - Right to be Let Alone

Osselburn v. Bureau of Driver Licensing

PICS Case No. 09-XXXX (Pa. Commw. April 14, 2009) Leavitt, J. (11 pages).

A licensee who refused chemical testing when a police officer had a reasonable suspicion that the licensee was driving under the influence of alcohol properly had his operating privileges suspenced despite the Pennsylvania Constitution's "right to be let alone" in Article 1, Section 8. The Commonwealth Court affirmed the suspension of his privileges.

 

Licensee was pulled over after failing to signal a turn, and when questioned by troopers they noted the odor of alcohol and other signs of intoxication. After licensee failed a breath test, he was arrested for DUI and taken for chemical testing, which he refused.

PennDOT suspended his driving privileges, and he appealed, claiming a violation of the state constitutional "right to be let alone." He claimed he had been stalked by the officers who were looking for an excuse to pull him over since seeing his car parked for a long time at a bar.

 

The trial court denied his appeal, and the Commonwealth Court affirmed. It held that when, as here, an officer has a reasonable basis to believe a licensee was driving under the influence, he has a statutory right to ask the licensee to submit to chemical testing, and refusal will warrant suspension. The legality of the initial traffic stop is irrelevant.

 

The court then turned to the constitutional claims, and noted that although the Pennsylvania Supreme Court has suggested that a violation of privacy rights might warrant suppression of evidence obtained at a stop even in suspension proceedings, here they found no such violation. Given the diminished expectation of privacy in a vehicle, licensee probably did not have a reasonable expectation of privacy in his vehicle when it is parked at a tavern in a public place. Licensee also had no right to be let alone while operating a vehicle carelessly on public highways in violation of the Vehicle Code.

 

Accordingly, the Commonwealth Court affirmed the order of the trial court denying licensee's appeal.

 

 

Driving Under the Influence - Blood Sample for Testing - Probable Cause

Commonwealth v. Waltman

PICS Case No. 09-0653 (C.P. Lancaster March 4, 2009) Knisely, J. (7 pages).

The arresting officer had probable cause to believe that defendant drove under the influence and to request that defendant provide a blood sample for testing given the severity of the accident, the strong odor of alcohol emanating from the vehicle and from defendant's person, the location where defendant was found and the blood in the car and on defendant's person. Affirmance recommended.

 

In a bench trial, the court found defendant guilty of two counts of driving under the influence (DUI). Defendant appealed, challenging the court's decision to deny his motion to suppress the blood alcohol content (BAC) test evidence. At issue was whether the arresting officer had probable cause to believe that defendant drove under the influence of alcohol and to request a blood sample for testing.

 

The court determined that the officer did have probable cause. Here, the officer learned from an independent witness that defendant's vehicle was proceeding erratically, striking a pole and crashing down an embankment. The force of the impact was so great that it split the vehicle in two. Paperwork inside the vehicle indicated that defendant was the owner. There was a strong odor of alcohol emanating from the vehicle. When the officer located defendant, defendant was in a nearby field with a strong odor of alcohol about his person. There was a blood in the driver's seat, and defendant was bleeding when the officer found him. The weather and conditions were clear at the time of the accident.

 

Accordingly, the court requested that its decision denying defendant's motion to suppress be affirmed.

 

 

License Suspension - Accelerated Rehabilitation Disposition

Sweigart v. Department of Transportation

PICS Case No. 9-0628 (C.P. Berks Feb. 23, 2009) Sprecher, J. (4 pages).

A person entering accelerated rehabilitation disposition obtains a clean criminal record but must accept certain other consequences, including loss of commercial driving privileges. The court denied licensee's appeal from a one-year suspension of commercial driving privileges for driving under the influence.

 

Licensee appealed his suspension because he was not convicted of DUI but instead accepted an accelerated rehabilitation disposition (ARD). However, a commercial licensee is subject to stricter and harsher sanctions than non-commercial licensees. While an ARD resolves criminal charges, it does not resolve the collateral civil proceeding concerning driving privileges. Under the rule in <I>Thorek v. Commonwealth<P>, 938 A.2d 505 (Pa. Commw. 2007), an ARD has the same effect as a conviction in these collateral proceedings.

 

Accordingly, the court denied the appeal.

 

 

Suspension of Privileges - Underage Drinking - Time for Suspension

Hockenberry v. Bureau of Driver Licensing

PICS Case No. 09-0709 (Pa. Commw. April 22, 2009) McCLoskey, J. (6 pages).

A conviction for underage drinking for someone under driving age means that person is to be rendered ineligible for a license for 90 days after turning 16, but the suspension should not be delayed for years after that. he Commonwealth Court affirmed the trial court's decision sustaining Licensee's appeal.

 

Licensee was convicted at 13 of underage drinking. She was allowed to apply for and obtain a drivers license at 16, but ater she turned 18, she was informed her license was suspended for 90 days. The delay was due to the fact the magisterial district judge failed to forward the record of the conviction for several years.

 

The trial court sustained an appeal based on the delay, and the Commonwealth Court affirmed. Licensee was only 13, and under section 6310.4(c) of the Motor Vehicle Code, her suspension was to commence on her sixteenth birthday and render her ineligible to apply for a license for 90 days after that birthday. That ability to delay a licensee's application for a license is quite different than the ability to suspend privileges already in existence. Furthermore, there is no authority to extend the penalty to a different time frame.

 

Accordingly, the Commonwealth Court affirmed the decision to grant licensee's appeal.

 

 

Driving Under the Influence - Breathalyzer Test - Refusal - Medical Condition

Commonwealth v. Lalinsky

PICS Case No. 09-0406 (C.P. Montgomery March 3, 2009) Albright, J. (10 pages). Where defendant failed to inform arresting officers of an alleged medical condition that prevented him from taking a breathalyzer test, he was precluded from relying on this condition as an affirmative defense to his refusal to take the test. Affirmance recommended.

 

On April 29, 2005, Pennsylvania State Police Trooper Chann Chhim was dispatched to a reported motor vehicle accident on I-76. When he arrived at the scene, Chhim saw a vehicle with front end damage parked on the right shoulder of the highway.

 

Chhim detected a strong odor of alcoholic beverages coming from the vehicle and from the defendant driver. After failing a field sobriety test, defendant was arrested and transported to State Police Barracks.

 

Police warned defendant that his driver's license would be suspended if he failed to give a breath sample. Defendant agreed to give the breath test. However, when the test was implemented, he failed to give the required "two full breath samples."

 

As a result, defendant was deemed to have refused to submit to breath testing. At no time during these events did defendant indicate that he was suffering from any type of medical or physical condition that might impair his ability to either take or complete the breath test.

 

Based on defendant's refusal, the Commonwealth's Department of Transportation (PennDOT) suspended his driver's license. Defendant filed a petition to appeal the suspension. The Court of Common Pleas denied his appeal. Defendant appealed, prompting the court's opinion.

 

Defendant asserted that the trial court erred in denying his appeal because PennDOT did not meet its burden of establishing that he ignored or failed to follow the breathalyzer instructions. He claimed that he suffered from an atrial fibrillation, which adversely affected his ability to take or complete the test.

 

"In circumstances where a licensee claims that he suffered from a medical condition ... that adversely affected his ability to take or complete the test, he must then inform the officer administering the test of that condition so as to provide the officer an opportunity for alternative testing."

 

If this notice is not given, the licensee is "precluded from relying on any such condition as an affirmative defense" to a suspension as a consequence of a test refusal, the court observed. It noted that in matters of this kind, the trial court is the ultimate finder of fact.

 

Both Chhim and Andrews warned defendant that his failure to provide air samples sufficient for chemical testing would result in a suspension of his license. "The evidence set forth with respect to the preliminary warning provided to [defendant] by both Trooper Chhim and Trooper Andrews was entirely credible."

 

Despite defendant's testimony that he had an atrial fibrillation that allegedly prevented him from taking the breathalyzer test, defendant failed to inform the troopers of his allegedly medical condition. Thus, he was precluded from relying on this condition as an affirmative defense.

 

Accordingly, the court recommended affirmance.

 

 

License Suspension - Implied Consent Law - Warnings - DL-26 Form

Quigley v. Commonwealth, Dept. of Transportation

PICS Case No. 09-0210 (Pa. Commw. en banc Feb. 4, 2009) Butler, J.; Leavitt,

McGinley & Pellegrini, JJ., dissenting (18 pages).

PennDOT's DL-26 Form, read to licensee after her DUI arrest on Feb. 16, 2007, was legally sufficient because it informed her that if she refused to submit to chemical testing, her operating privileges "will be suspended." Affirmed.

 

Licensee was arrested for driving under the influence on Feb. 16, 2007. The police officer read licensee the chemical test warnings required by 75 Pa.C.S. §1547(b), as they appeared on the August 2006 DL-26 implied consent form. Licensee did not take the test, insisting that she wanted to talk with her husband.

 

PennDOT suspended licensee's operating privileges for one year due to her failure to submit to chemical testing. Licensee appealed, raising the issue of whether she had been properly warned that her operating privileges would be suspended. The trial court dismissed her appeal, finding that she had been properly warned and that she had not proven that the language on the DL-26 Form confused her. Licensee appealed.

 

The first sentence of Warning 3 on the DL-26 Form states, "[i]t is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privileges will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." In Dep't of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d 259 (Pa. 2006), the Supreme Court affirmed the Commonwealth Court's holding that a warning is legally sufficient if it informs the licensee that refusing a request for chemical testing means that he "will be in violation of the law and will be penalized for that violation."

 

The DL-26 Form satisfied this standard, a majority of the en banc Commonwealth Court panel determined. It held that Warning 3 "sufficiently apprises the driver hearing and/or reading it that, if he/she refuses to submit to the chemical test, his/her operating privileges 'will be suspended,' and that other penalties may be imposed." The majority found it unreasonable for a driver, whose operating privileges were granted subject to his implied consent to submit to chemical testing where there is reasonable cause to believe that he is driving under the influence of alcohol, to believe that there would not be a penalty for failure to submit to that testing. Moreover, licensee here was not confused about the language of the warnings, the majority observed. Accordingly, it affirmed.

 

 

License Suspension - Implied Consent Form - Issues Waived on Appeal

Thoman v. Bureau of Driver Licensing

PICS Case No. 09-0234 (Pa. Commw. Feb. 9, 2009) Leavitt, J. (7 pages).

Licensee's claim the implied consent form was ambiguous was not preserved on appeal because it was raised for the first time before the Commonwealth Court. The Commonwealth Court affirmed the trial court's decision upholding licensee's suspension.

 

Licensee swerved into an oncoming officer's lane of traffic, leading the officer to follow licensee home. Licensee crashed into a telephone pole as he parked his car in his own driveway. When he exited his vehicle, the officer approached him and saw obvious signs of intoxication. He arrested licensee for DUI and transported him to the hospital for testing. When PennDOT later suspended licensee's operating privileges for refusing the test, he appealed to the trial court, which affirmed the suspension.

 

The officer claimed he read the implied consent form verbatim to licensee who refused the chemical test, while the licensee claimed before the trial court that the officer made statements that misled him to believe he could refuse with no consequences. The trial court credited the officer's testimony.

 

On appeal for the Commonwealth Court, licensee raised for the first time a claim that the implied consent form itself was ambiguous, relying on the July 2008 decision of the Commonwealth Court in Yourick v. Bureau of Driver Licensing. However, the Yourick decision was withdrawn, and a new opinion with a different result issued (that opinion is digested elsewhere in this issue, PICS Case No. 09-0209). Furthermore, licensee, in not raising this argument before, could not raise it for the first time before the Commonwealth Court.

 

Accordingly, the Commonwealth Court affirmed.