HomeMy WebLinkAboutCP-21-CR-00003087-2016
COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
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v. :
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STEPHANIE ANN JURY : CP-21-CR-3087-2016
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION
OPINION
Peck, J., October 9, 2017 –
Before this Court is Defendant Stephanie Jury’s Omnibus Pretrial Motion to
Suppress. Following a hearing on May 17, 2017 and upon consideration of supplemental
briefs submitted by the parties thereafter, the matter was taken under advisement. This
Court now denies the Motion to Suppress.
Findings of Fact
1.On August 14, 2016, at approximately 12:00 a.m., Middlesex Township Patrol
Officer Rachel Krupko was on patrol in the area of West Trindle Road in
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Cumberland County, Pennsylvania.
2.Officer Krupko observed the Defendant’s vehicle traveling west on West Trindle
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Road with both passenger side tires on the shoulder of the road stirring up dust.
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3.Officer Krupko pulled over the Defendant, who was the driver of that vehicle.
4.The Defendant produced an identification card in response to the Officer’s request
for her operator’s license, stating that she did not know where her driver’s license
was located. Officer Krupko asked the Defendant if she had a valid license, and
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the Defendant stated that she did.
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Notes of Testimony, In Re: Suppression Hearing, May 17, 2017 at 4, 8 (hereinafter N.T. at __).
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N.T. at 4.
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Id.
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N.T. at 5.
5.While speaking with the Defendant, Officer Krupko smelled an odor of alcohol
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coming from the Defendant’s person.
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6.When asked, the Defendant admitted that she had been drinking alcohol.
7.When instructed to exit the vehicle, the Defendant used her hand to steady herself
on the driver’s side door and continued to use her hand for balance while she was
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walking to the rear of the vehicle.
8.The Officer observed the Defendant staggering, swaying, and adjusting her footing
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to keep her balance.
9.The Defendant was given a preliminary breath test, which showed a presumptive
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positive reading for the presence of alcohol.
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10.No discussion regarding a blood draw was had during the roadside interaction.
11.Defendant was placed under arrest and Officer Krupko transported the Defendant
to the Cumberland County Prison Booking Center to obtain a blood sample. While
in the lobby of the booking center, the Officer explained to the Defendant that a
blood draw was the next step in the process and asked the Defendant whether she
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would consent to a blood draw.
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12.Defendant voluntarily gave her consent to a blood draw.
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13.The Defendant was cooperative during her interaction with the arresting officer.
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14.The Defendant did not ask any questions or show any signs of refusal.
15.Approximately five minutes later, in the presence of the arresting officer, the
phlebotomist asked the Defendant whether she would consent to a blood draw and
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Id.
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Id.
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Id.
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Id.
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N.T. at 6.
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Id.
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N.T. at 6-7.
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N.T. at 6-8.
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N.T. at 6.
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N.T. at 8, 10.
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the Defendant replied that she would. Defendant again showed no signs of
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resistance or asked any questions at that time.
16. The Defendant was not read any version of the DL-26 implied consent form nor
was she informed of any enhanced penalties if she refused to consent to the blood
draw. The Defendant was not informed that she would experience increased
criminal sanctions for a failure to consent or that she was statutorily deemed to
have given implied consent, and at no time did Defendant ask what the penalty
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would be if she refused to consent.
17.Defendant was charged with: one count of Driving Under the Influence, General
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Impairment (1 Offense) under 75 Pa.C.S.A. §3802(a)(1); one count of Driving
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Under the Influence, Highest Rate of Alcohol (BAC 0.16+) (1 Offense) under 75
Pa.C.S.A. §3802(c); and summary vehicle code violations of Restrictions on
Alcoholic Beverages and Driving While Operating Privilege is Suspended or
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Revoked.
18. Defendant filed an Omnibus Motion to Suppress the blood draw evidence on the
basis that: 1) Defendant’s consent was not knowing because she was not given
blood alcohol test warnings statutorily required by 75 Pa.C.S.A. §1547(b)(2); and
2) Defendant’s consent was not voluntary because, as citizens are presumed to
know the law, the existence of Pennsylvania’s driving under the influence statute
with enhanced criminal penalties that have been held unconstitutional under
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and related Pennsylvania
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progeny, acts coercively to obtain the Defendant’s assent to the blood draw.
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N.T. at 8-11.
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N.T. at 8.
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Information, Dec. 20, 2016.
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Def.’s Omnibus Pre-Trial Motion to Suppress, Feb. 13, 2017.
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Discussion
Regarding the Defendant’s first argument that she was not given sufficient
warnings under 75 Pa.C.S.A. §1547(b)(2), we note that our colleague, The Honorable
M.L. Ebert, Jr., recently opined, in a case factually similar to the instant case, that the
defendant had voluntarily consented to a blood draw even though he was not read the
DL-26 implied consent form or informed by the officer of any increased criminal or civil
penalties as a result of refusal to consent. Commonwealth v. Daniels, (Cumb. Cty., J.
Ebert, 12/08/16). Although the Defendant in Daniels did not argue the issue of consent
under 75 Pa.C.S.A. §1547(b)(2), we find that the circumstances in that case and the
instant case are substantially similar and the findings of that case are relevant to the
instant Defendant’s first argument.
Per Birchfield, the Commonwealth may not compel a defendant to provide a blood
sample without a search warrant or absent an applicable exception to the warrant
requirement because the taking of a blood sample is a search within the meaning of the
Fourth Amendment to the United States Constitution. Birchfield, 136 S. Ct. at 2173, 2185
(2016). Voluntary consent to a search is one such applicable exception. Id. at 2185. The
Commonwealth bears the burden of establishing that an exception to the general warrant
requirement applies. Commonwealth v. Smith, 77A.3d 562, 573 (Pa. 2013). If no
exception applies, the evidence must be suppressed as the result of an unreasonable
search and seizure. See id. at 571-72. The Commonwealth bears the burden of
establishing Defendant knowingly and voluntarily consented to the search. Id. at 573.
The Smith court summarized:
In determining the validity of a given consent \[to a blood draw\], ‘the
Commonwealth bears the burden of establishing that a consent is the
product of an essentially free and unconstrained choice – not the
result of duress or coercion, express or implied, or a will overborne –
under the totality of the circumstances.’ ‘The standard for measuring
the scope of a person’s consent is based on an objective evaluation
of what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent.’ Such
evaluation includes an objective examination of ‘the maturity,
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sophistication and mental or emotional state of the defendant….’
Gauging the scope of a defendant’s consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid, or
instead the product of coercion, deceit, or misrepresentation.
Id. at 573. (internal citations omitted).
Here the Defendant argues that the warnings prescribed under 75 Pa.C.S.A.
§1547(b)(2) are mandatory regardless of whether the Defendant first consents to the
blood draw, as the Defendant could not intelligently evaluate whether to give consent
without first knowing of her right to refuse and the possible penalties of refusal. The
Commonwealth counters that the Defendant gave express consent to the blood draw, so
the “implied consent” warnings are inapplicable as they are not triggered until the
Defendant refuses. This Court finds the Commonwealth’s argument persuasive. In
Commonwealth v. Haines, the Superior Court opined that the timing of the Defendant’s
consent is important to a discussion of whether implied consent warnings are deficient
post-Birchfield. Commonwealth v. Haines, 2017 PA Super 252, 4-5 (Pa. Super. Ct. Aug.
2, 2017). In that case, the defendant gave express consent to have his blood drawn before
he was read the DL-26 form informing the Defendant that he would be subject to
enhanced criminal penalties for refusal, which Birchfield and subsequent Pennsylvania
decisions have held to be an unconstitutional and coercive warning. Defendant later
moved to suppress the blood draw evidence. In discussing the timing of the defendant’s
consent, the court stated:
ifbefore
We agree that Haines validly consented being informed that he faced
enhanced criminal penalties for failure to do so, then his consent would not be
tainted by the warning and the blood test results would be admissible. If, however,
he did not consent until after \[the officer\] informed him that he would face
enhanced criminal penalties if he refused to consent, then the trial court did not
necessarily err in granting his motion to suppress the test results.
Haines, 2017 PA Super 252 at 5 (emphasis in original)(internal citations omitted).
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The Haines court ultimately remanded the case because the trial court had failed to
address the important temporal distinction, and whether the defendant validly consented
depended upon whether the subsequent reading of the DL-26 form “tainted” his prior
valid consent. Id. at 6-7. Here, no DL-26 warnings were given to Defendant informing
her of increased criminal penalties, and accordingly there is no “taint” on any consent.
The DL-26 implied consent warnings are not necessarily where Defendant first expressly
consents to the blood draw. All that remains is a determination of whether Defendant’s
consent was knowing and voluntary.
In finding a valid consent, our colleague Hon. Ebert found in the Daniels case
cited supra that after considering the totality of the circumstances, the defendant was a
“forty eight year-old of reasonable intelligence and education at the time of the incident”
who had presented no evidence to the Court that he had been coerced into providing a
sample, but rather was “cordial and cooperative” with the Officer and “voluntarily and
explicitly” consented to the blood draw in question. Commonwealth v. Daniels at 2-4.
We likewise find here that the Defendant was a twenty-eight-year-old woman of
reasonable intelligence at the time that she was arrested on the above listed charges. No
evidence was presented to this Court as to the Defendant’s inability to understand the
officer’s request for a blood draw on the night in question, and there was no evidence to
suggest that the interaction between the officer and the Defendant was anything but
cordial and cooperative. The Officer explained to the Defendant that she was asking for a
“legal blood draw” and the Defendant expressly consented to have her blood taken on
two separate occasions. Considering the totality of the circumstances, here we find that
the Defendant understood what she was doing when she did so and that she knowingly
and voluntarily consented to the blood draw.
Defendant also argued that, because enhanced criminal penalties attendant to a
refusal of a blood draw are still listed in Pennsylvania’s driving under the influence
statute, any consent she provides can never be voluntary as such consent is necessarily,
and always will be, coerced by the remaining existence of such statutes. This Court and
our colleagues have previously held against such argument and accordingly we hold the
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same here and deny Defendant’s motion. See Commonwealth v. Kyai Williams (Cumb.
Cty., J. Peck, 08/25/17).
BY THE COURT,
Christylee L. Peck, J.
Erin E. Bloxham, Esq.
Assistant District Attorney
Bradon E. Toomey, Esq.
Assistant Public Defender
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