Case Law Update from PA DUI Association

Late on the evening of June 28, 2009, Michael Alan Clouser and his girlfriend drove to a tavern where he " 'drank several beers and had several shots of alcohol.' " His girlfriend, who was going to do the driving, went out to the car, while he went to the restroom. As she came out of the bar, Clouser's girlfriend spotted another woman sitting in what she believed was Clouser's car and demanded that the woman get out of the vehicle. A physical fight involving a number of people ensued and Clouser, who joined the fight after exiting the tavern, was hit over the head with a hard object. The tavern's owner suggested that the two leave to avoid "a police presence" and they took off with him driving. 4.8 miles down the road, the car went into a ditch. When police arrived at the location they found the injured Clouser and his girlfriend a short distance away. Both were taken to a hospital for treatment. A blood test performed on Clouser revealed a BAC of 0.19%.

Clouser was tried on and convicted of driving under the influence (DUI) of alcohol or controlled substance (highest rate of alcohol), see 75 Pa.C.S. § 3802(c), and DUI (general impairment, see 75 Pa.C.S. § 3802(a)(1). He was sentenced to 1-5 years in prison. At trial, he requested that the court give a justification instruction. The trial court declined to so. In this appeal, the sole issue is whether the court's refusal to instruct on justification was error. Though the Superior Court panel found error in the trial judge's reasoning, it nonetheless concluded that there was no error in refusing to give a justification instruction.

In analyzing this issue, the court began by first reviewing the provisions of 18 Pa.C.S. §503 (Justification generally) and the Pennsylvania Supreme Court's seminal decision in Commonwealth v. Capitolo, 498 A.2d 806 (1985). Quoting Capitolo, in which the provisions of §503 were reviewed in the context of a defendant's right to an instruction on justification, the Superior Court explained generally that under this statute

[T]he actor must reasonably believe that the conduct chosen was necessary to avoid the greater threatened harm or evil. Because the harm must be real, and not an imagined, speculative, or non-imminent harm, the actions taken to avoid the harm must support a reasonable belief or inference that the actions would be effective in avoiding or alleviating the impending harm.

Capitolo lists several things the defendant must prove in order for a defendant to be entitled to an instruction on justification, including "that there is no legal alternative which will be effective in abating the harm . . . ." The court stressed that it is the defendant's burden to meet this and all other requirements for an instruction on justification.

The trial court determined that Clouser failed in this particular respect. In its view, Clouser had other alternatives, including returning to the tavern, locking himself in his car or fleeing on foot. Superior Court found error in this aspect of the trial court's ruling, saying that if the jury believed Clouser's version of the facts, then he arguably had presented enough evidence for an instruction on justification. The court said it "consider the question of whether Appellant was entitled to drive away initially from the scene a viable jury question." (Emphasis in original.)

But its review of this issue could not stop there because the record reflected that Clouser continued to drive some 4.8 miles after initially departing from the scene of the fight. The court went on to point out that:

[Clouser] did not claim to drive a short distance in order to avoid the crowd, then seek assistance in driving home. [Clouser] also did not claim that his girlfriend was incapable of taking over once Appellant had sufficiently escaped the danger, or that anyone from the tavern attempted to chase him. Finally, [Clouser] failed to offer evidence that there was no possibility he could safely stop less than 4.8 miles away from the tavern. Without any explanation by [Clouser], we find no reason for a factfinder to conclude that [Clouser] had no reasonable options, within a span of 4.8 miles, to avoid driving in his extreme state of inebriation.

The court concluded that Clouser was not entitled to an instruction on justification, because "although [he] initially met the Capitolo factors upon fleeing the tavern, he failed to offer any evidence that driving at least 4.8 miles away from the tavern was the minimum action necessary to avoid the danger." Judgment of sentence affirmed.

Opinion by: Fitzgerald, J. (sitting by special assignment); joined by: Donohue, J. Concurring in result: Stevens, J.

Vehicle Code: 75 Pa.C.S.A. §4524(e)(1) (Sun Screening or Window Tinting) - Elements of Offense

In this pro se appeal by Benjamin Brubaker, who was convicted of violating 75 Pa.C.S.A. §4524(e)(1) (relating to after-market sun screening or window tinting), he contended the evidence was insufficient to sustain his conviction. The unanimous panel agreed and reversed.

Brubaker was stopped by a Camp Hill police officer who believed Brubaker's was in violation of §4524(e)(1), which provides as follows:

(1) No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle.

The officer cited Brubaker who was found guilty after a hearing before a magisterial district judge and again after a de novo appeal to the court of common pleas. In his testimony, the officer who cited Brubaker described what he observed after stopping Brubaker, saying that the tint on the window was "mid-range" in terms of darkness and acknowledged that he could see into the car.

Much of the testimony against Brubaker related to whether or not the tint on his vehicle comported with standards PennDOT has established which are contained in its regulations in 67 Pa. Code § 175.67. The court found that testimony irrelevant in light of the language in the statute which made no reference to any statutes by PennDOT, let alone as a measure for compliance. The court noted that, in this respect, §4524(e)(1), was different from other statutes such as the motorcycle le helmet law, see 75 Pa.C.S.A. § 3525(a), that expressly ties compliance to standards set by PennDOT. Absent similar language in §4524(e)(1), there was no value in referring to the PennDOT regulations involved here or to light readings that were taken by the officer. Because the officer admitted he could see into the car, Brubaker did not violate the plain language of the statute and the evidence was insufficient to support a violation of §4524(e)(1).

Opinion by: Ford Elliott, P.J.; joined by: Freedberg and Colville (sitting by special assignment), JJ.

Calculating time served when re-sentencing a revoked SIP offender has been a hot topic recently. , a Superior Court panel may have provided some guidance on the issue. Kuykendall was incarcerated for 61 days in Mifflin County prison before being sentenced to 24 months SIP. He had pleaded guilty to conspiracy to deliver a controlled substance. He was later expelled from the program after testing positive for cocaine, and other infractions. He was then returned to the Mifflin County for revocation proceedings. Although he claimed he had completed SIP, he was revoked after a full hearing, and re-sentenced to a 21-month minimum, 48-month maximum term of incarceration. He was also found to be immediately eligible for parole.

On appeal, he claimed that he had actually served in excess of the 24-month SIP sentence, regardless of his revocation. He also asserted that he was entitled to credit for time served in the county prison. As a result, he argued, the resentencing violated his double jeopardy protections. The panel disagreed, and affirmed the sentence.

Judge Bowes, writing for the panel, pointed out that under 61 Pa.C.S. Section 4105(b), the time spent in a county facility does not count as time spent in SIP. She also cited Section 4105(e), to refute the contention that an SIP sentence could be fully served without successfully completing the program. The nature of the SIP program, and the fact that the program usually reduces the amount of time spent in prison, were also discussed. In conclusion, the panel stated: "In exchange for admittance into SIP, the defendant surrenders his statutory right to credit for time served while housed in a county correctional institution or non-Pennsylvania state correctional facility. Revocation and re-sentencing do not constitute a second punishment, but provide a necessary incentive to the defendant to complete the program. Therefore, no double jeopardy violation occurred."

Here is the link: http://www.aopc.org/OpPosting/Superior/out/s27006_10.pdf

A panel of Superior Court held that expert testimony is not necessary to sustain a conviction under 75 Pa.C.S. §3802(d)(2), where a hospital urine screen revealed the presence of cocaine metabolites and opiates. A citizen called police after hearing a crash outside of his residence at approximately 5:30 a.m. When police arrived, the driver, later identified by the citizen, had walked away. The citizen gave a description of the driver and explained to the responding officer that the driver had appeared "disoriented." When the responding officer encountered an individual meeting the description she had been given, the individual fled and was apprehended after falling down some stairs. At this point the officer, Adrienne Duffy of the Lansdale Police Department, noted that DiPanfilo appeared to be under the influence of a controlled substance to the extent that his ability to operate a motor vehicle was impaired. Because of injuries sustained during the fall, field sobriety tests were not performed. An ambulance was called, and Dipanfilo was taken to a hospital for treatment of his injuries.

At the hospital, DiPanfilo was asked to submit a blood test, but he refused. As part of routine treatment, however, the urine screen was performed. DiPanfilo was convicted by a jury of violating Section 3802(d)(2), and he appealed. On appeal, he challenged the sufficiency of the Commonwealth's evidence, and cited the recent Superior Court holding in Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009), for the proposition that expert testimony was required to link the presence of drugs with any impairment observed by the Commonwealth's witnesses. In distinguishing Griffith, the panel found that its holding applies only to prescription drugs, and also found that DiPanfilo's refusal to submit to testing must be taken into account. Essentially, the panel refused to reward a driver for refusing blood testing after having taken illegal controlled substances. The conviction was affirmed.

Opinion by: Olson, J.; joined by: Bowes and Fitzgerald (sitting by special assignment), JJ.

The defendant appealed the denial of his motion to suppress. As police approached the defendant at 9 a.m. - they were patrolling an area due to complaints of people stealing copper from street dumpsters - he began reaching for his pocket. Police told him to stop and he did; they then conducted a patdown search which discovered marijuana. While holding that the officer's actions did not rise to the level of an investigative detention, the Superior Court ruled that the police had failed to articulate sufficient facts to justify a belief that the defendant was armed and dangerous. Thus, the frisk was unlawful.

Opinion by: Fitzgerald, J. (sitting by special assignment); joined by: Donohue and Allen, JJ.

The court refused to suppress evidence of defendant's intoxication where police's initial contact with defendant constituted a mere encounter, which ultimately became an investigative detention that was supported by reasonable suspicion. The court requested the judgment be affirmed.

On March 7, 2009, shortly after midnight, police officer Dan Barbagello was traveling north on Herrs Ridge Road in Cumberland Township. He saw a vehicle leave the parking lot of Herrs Tavern and turn right, directly in front of him, into the northbound lane of Herrs Ridge Road.

Barbagello later determined that defendant was the operator of this vehicle. Defendant's vehicle then stopped behind another vehicle ("vehicle one") at a traffic light at the intersection of Herrs Ridge Road and U.S. Route 30.

Barbagello stopped in the northbound lane behind these two cars. At the same time, Officer Timothy Biggins was in a stationary position observing traffic at the same intersection. For some unexplained reason, vehicle number one did not enter onto Route 30.

After two or three minutes passed, Barbagello conducted a vehicle stop of vehicle one. Biggins also moved his patrol car to assist. Biggins soon concluded that the traffic stop of vehicle one would last longer than a few seconds. Thus, Biggins decided to take action to control traffic.

He attempted, by both visual and audible signals, to attract defendant's attention. However, defendant appeared to avoid interaction with Biggins. When Biggins approached within four to five feet of defendant's vehicle, he noticed the odor of alcohol.

Biggins also saw that defendant had glassy and bloodshot eyes. Based on these observations, Biggins requested that defendant produce identification. Defendant responded with an expletive. After defendant finally exited the vehicle, Biggins noticed that defendant was having trouble standing.

Moreover, defendant's pants were soaking wet in a manner consistent with self-urination. He also failed field sobriety tests; thus, Biggins arrested defendant for driving under the influence. Ultimately, the court convicted defendant of DUI. He appealed, prompting the court's opinion.

Defendant argued that the court erred in denying his omnibus pretrial motion to suppress evidence of his intoxication, which allegedly should have been suppressed as he was subjected to an investigative detention without reasonable suspicion.

The court found that Biggins' initial interaction with defendant was nothing more than a mere encounter, which need not be supported by any level of suspicion. Defendant's vehicle was not stopped by police; rather, it was sitting in traffic behind a vehicle stop directly in front of defendant.

Significantly, Biggins made no effort to exercise restraint of defendant. Rather, police affirmatively attempted to assist defendant in leaving the scene for his own safety as well as traffic control purposes, the court observed.

Biggins' request for defendant to provide identification crossed the line from a mere encounter to an investigative detention. Nevertheless, defendant was not entitled to relief as such a detention need only be supported by a reasonable suspicion, which existed after Biggins approached the vehicle. Accordingly, the court recommended that the judgment be affirmed.

DUI: Chemical Testing - Reasonable Grounds to Request

Marone v. PA DOT, Bureau of Driver Licensing,

__ A.2d ___, 2010WL724858 (Pa. Cmwlth. 01-05-10) publication ordered 03-03-10)

In this previously-unpublished decision, Commonwealth Court addressed the question of reasonable grounds to request chemical testing under 75 Pa.C.S. §1547, where prescription drugs may be the cause of intoxication. A unanimous panel of the court found that an officer did have reasonable grounds to request testing where a driver was passed out in the driver's seat of a running car with its lights on in a McDonald's parking lot. The driver (who the same officer had encountered earlier while responding to a complaint of disorderly conduct at a Walgreen's pharmacy) was slumped over the center console with his face inside a bag of food. Three prescription pill bottles containing unidentified pills were also in the front of the car. Upon contact with the driver, the officer observed, "no odor of alcohol...but as (the driver) was revived, he became very belligerent, drifted in and out of consciousness, had trouble standing, had bloodshot eyes and very slurred speech, and was spitting out half-eaten food from his mouth."

Eventually the driver was placed under arrest for suspected Drug DUI, and taken to a hospital where he refused to submit to a blood test. He appealed the resulting license suspension, claiming the police did not have reasonable grounds to request testing. The trial court agreed, finding that the driver had not appeared intoxicated during the earlier encounter with police, and that it was equally likely that the driver became intoxicated after parking his car and taking the pills. PennDOT appealed this decision to the Commonwealth Court.

In reversing the trial court, the Commonwealth Court noted that "the existence of another reasonable explanation does not vitiate an officer's reasonable grounds." The Commonwealth Court also pointed out that the officer had observed the driver at another location an hour and a half before seeing him passed out in the McDonald's lot. In a final passage, the Court stated that "it is irrelevant that Licensee's intoxication may have been caused in whole or in part by prescription medication rather than by alcohol or an illegal substance, as driving under the influence may be found when the intoxication is caused by prescription medication."

Opinion by: Pellegrini, J.; joined by: Friedman, S.J., and Quigley, S.J.

Commentary from Max Little, PDAA's TSRP:

This license suspension case may be helpful to prosecutors who deal with Drug DUI. While we should encourage officers to contact a DRE (Drug Recognition Expert) whenever possible in these situations, this case appears to support the proposition that an officer without specialized training may nonetheless request chemical testing where prescription drug DUI is suspected. Interestingly, the Court cites Commonwealth v. Griffith, 985 A.2d 230, (Pa. Super. 2009) when stating that intoxication by prescription medication may support a drug DUI charge. Griffith (petition for review pending in the Pa. Supreme Court) held that expert testimony was necessary to prove prescription drug DUI.