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HomeMy WebLinkAboutCP-21-CR-1293-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1293-2005 : : TED WILLIAM ARMSTRONG : IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS, J. The defendant in this case was arrested for driving under the influence after his erratic driving caught the attention of another motorist. Mr. Justin Stoner first observed the defendant driving just before midnight on April 11, 2005, on Orrs Bridge Road in Cumberland County. The defendant’s SUV almost collided with Mr. Stoner’s vehicle after the SUV pulled out directly in front of the Stoner vehicle. After the defendant’s vehicle nearly collided with other cars and struck the side of a bridge, Mr. Stoner dialed 911 on his cell phone and reported the matter to police. Mr. Stoner continued to follow Mr. Armstrong until the point that Mr. Armstrong arrived home. Shortly thereafter the police arrived, determined that Mr. Armstrong was under the influence of alcohol and placed him under arrest. Prior to taking a chemical test, Mr. Armstrong was read the contents of a PennDOT form the DL-26, which, among other things, indicated that the defendant had no right to speak to an attorney before deciding to take a breath test. The breath test result in this case yielded a blood alcohol of .189. Following trial without a jury, the defendant was convicted of both counts in the information. These included charges of driving under the influence by virtue of general impairment and of driving under the influence at the “highest rate” of blood alcohol. On March CP-21-CR-1293-2005 20, 2007, the defendant was sentenced on Count 2, DUI, Highest Rate, the Court being satisfied that the two counts had merged for sentencing purposes. In his first assignment of error, the defendant contends that he should not have been found guilty “as charged” because such a finding somehow violated his double jeopardy rights. For this proposition, the defendant cites Com. v . McCurdy, 735 A.2d 681 (Pa. 1999). In that case, the Supreme Court upheld the defendant’s conviction for homicide by vehicle while driving under the influence of alcohol even though one of the two subsections of driving under the influence, of which the defendant was convicted, had been held unconstitutional. The Supreme Court makes it clear, in McCurdy, that the various subsections under the Driving Under the Influence Law merely represent alternative bases for a finding of culpability. It appears clear from this case that the Commonwealth can proceed to trial on alternate theories of driving under the influence. No where in the McCurdy case is there a suggestion that the defendant’s conviction under more than one subsection of the Driving Under the Influence Law constitutes double jeopardy. Even assuming that the defendant’s argument is correct, any error in this case was harmless because the defendant was sentenced on only one of the counts. Second, Mr. Armstrong contends that he had the right to counsel at the time he was arrested and subsequently requested to take a chemical test. This contention was expressly rejected in Com. v. Beshore et al., ____ A..2d ____, 2007 W.L. 117461 (Pa.Super.). We will not repeat the court’s analysis here. Mr. Armstrong also contends that the Driving Under the Influence Statute is unconstitutional as being vague and overbroad, in violation of procedural due process protections and in violation of equal protection guarantees. Each of these arguments was specifically 2 CP-21-CR-1293-2005 rejected in Com. v. Beshore, Id. Again, we see no need to reiterate the Superior Court’s discussion. Finally, the defendant contends that the new Driving Under the Influence Law, Act 24 of 2003, Chapter 38, and specifically Sections 3802 -3804 and 3806 violate constitutional and due process protections against ex post facto laws by increasing the penalties on persons who violated the old DUI law prior to the effective date of Chapter 38. In order for a law to transgress the ex post facto prohibition, “the law must retrospectively alter the definition of criminal conduct or retrospectively increase the penalty by which a crime is punishable.” Frederick v. Com., 802 A.2d 701, 702 (Pa.Cmwlth. 2002). Said another way, an ex post facto law “is one which is adopted after the complaining party committed the criminal acts and inflicts a greater punishment than the law annexed to the crime, when committed.” McGarry v. Pa. Bd. of Probation and Parole, 819 A.2d 1211, 1214 (Pa.Cmwlth. 2003). In this case, the defendant ignores the fact that the legislative enactment in question did not occur after the events with which he is charged. To the contrary, the new DUI law was enacted substantially before his commission of the current offense. In other words, when the current offense was committed, the defendant was on notice that the then existing law took cognizance of DUI offenses which the defendant might have committed under a former law. Thus, ex post facto is not implicated. To the contrary, our courts have specifically held that “a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” Com. v. McCoy, 895 A.2d 18, 34 (Pa.Super. 2006). In McCoy, the Superior Court specifically upheld the constitutionality of the amendment of the Driving Under the Influence Law which provides for a 3 CP-21-CR-1293-2005 “look back” period of ten years to determine whether the defendant had prior DUI offenses. The Court held that ex post facto was not violated even though the prior statute had a look back period of only seven years. The Court, in McCoy, also rejected many of the other above- mentioned constitutional arguments advanced by the defendant in this case. May 18, 2007 _______________________________ Kevin A. Hess, J. Jaime Keating, Esquire First Assistant District Attorney John Mancke, Esquire For the Defendant :rlm 4