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HomeMy WebLinkAboutCP-21-CR-0001581-2019 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JOSEPH MICHAEL PAGE : CP-21-CR-1581-2019 IN RE: MOTION TO AMEND THE INFORMATION OPINION AND ORDER OF COURT Masland, J., September 3, 2020:-- On January 1, 2020, Defendant was stopped by police for suspected violation of the Motor Vehicle Code and ultimately charged with Driving Under the Influence pursuant to 75 Pa.C.S. § 3802(d)(1)(i) and (iii) (blood contains Schedule I controlled substance or metabolite thereof). When the parties appeared for a non-trial on July 23, 2020, the Commonwealth moved to amend the information by adding a second DUI charge under § 3802(d)(2) (driving while under the influence of a controlled substance to a degree which renders a person incapable of safe driving). Upon the objection of defense counsel and after brief argument, we continued the trial to a later date to provide the parties with an opportunity to submit briefs as to the propriety of the amendment. Having carefully reviewed the same, we will grant the Commonwealth’s Motion to Amend the Information. Amendment of an information by addition of a charge is permissible if the new charge arises from the same “set of events” as the previous charge and does not “differ so materially” from the previous charge that the defendant is prejudiced for lack of CP-21-CR-1581-2019 1 notice. Instantly, it is beyond dispute that the two charges at issue arise from the same event: namely, Defendant’s operation of his vehicle on January 1, 2020. The only question before us is whether the charges are sufficiently similar that the first gave notice of the second. Because Defendant was subjected to field sobriety tests in 2 addition to a blood draw, we find it difficult to imagine that Defendant, having been charged with DUI under § 3802(d)(1) based on the blood draw, was unaware of the possibility that the Commonwealth would charge an offense under § 3802(d)(2) based on the field sobriety tests, or simply the general observations of the investigating officer. Reviewing the relevant jurisprudence, we find no decision which directly addresses a factual situation such as the one before us. However, there are several analogous cases. In Jacobs, the Superior Court affirmed a decision permitting the Commonwealth to amend an information by addition of a second, alternative DUI 3 charge. The defendant had been charged initially with DUI under former 75 Pa.C.S. § 3731(a)(1) (driving while under the influence of alcohol to a degree which renders a person incapable of safe driving) and the Commonwealth sought the addition of a charge under former 75 Pa.C.S. § 3731(a)(4) (blood contains 0.10% or more alcohol by 4 weight). The Superior Court reached the same result in Slingerland, though the 1 Pa.R.Crim.P. 564; Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006) (the purpose of the rule is “to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed”). 2 Affidavit of Probable Cause, January 29, 2019; Omnibus Pre-Trial Motion, August 1, 2019, at ¶5. 3 Commonwealth v. Jacobs, 640 A.2d 1326 (Pa. Super. 1994). 4 Id. -2- CP-21-CR-1581-2019 5 procedural posture was slightly different. We see no reason to narrowly construe the rule emerging from these decisions, such that a charge of observationally-proved DUI would give notice that the Commonwealth may pursue a charge of chemically-proved DUI, but not vice versa. Nor, does Defendant offer any authority in support of that interpretation. To the contrary, the two statutes, and so their contemporary equivalents, proscribe “a single harm to the Commonwealth,” i.e. dangerously impaired driving, and 6 are differentiated only in terms of how the offenses may be proved. Further, our courts have held that a person whose BAC exceeds the statutory maximum is impaired as a matter of law, from which it follows that a blood content offense necessarily includes an 7 impairment offense. Importantly, despite the protestations of the defense, we find no compelling significance in the distinction between alcohol- and drug-related DUI. Admittedly, the statutes vary, with one prohibiting BAC in excess of .08%, the other prohibiting the 8 presence in the blood of “any amount” of a controlled substance or metabolite thereof. Nevertheless, we do not credit Defendant’s argument that the latter statute serves to penalize drug consumption rather than impaired driving, such that it does not provide notice that the Commonwealth may pursue a further DUI charge on the basis of impairment. We recognize that the presence in the blood of “any amount” of a controlled substance or metabolite thereof may not in fact cause impairment, and, moreover, such 5 Commonwealth v. Slingerland, 518 A.2d 266 (Pa. Super. 1986). The Commonwealth here sought not to amend the information by addition of a charge, but to include in the original information a charge which had not appeared in the complaint. 6 Commonwealth v. McCurdy, 735 A.2d 681, 685-6 (Pa. 1999). 7 Commonwealth v. Loeper, 663 A.2d 669, 674 (Pa. 1995). 8 75 Pa.C.S. § 3802(a)(2), § 3802(d)(1). -3- CP-21-CR-1581-2019 presence does not prove impairment beyond a reasonable doubt. Indeed, the same difficulty arises in any attempt to fix by statute what quantity of an intoxicating substance is sufficient to produce a given effect. Presumably, the legislature did not believe that every driver crosses the threshold into impairment at precisely .08% BAC, contra 9 .0799% or .0801%. Such rules are necessarily rules-of-thumb. We view the prohibition of “any amount” of a controlled substance or metabolite thereof under 75 Pa.C.S. § 3802(d)(1) as such a rule. The statute serves, if crudely, to prohibit a species of impaired driving. Therefore, charges thereunder provide notice that the Commonwealth may pursue an alternative charge on the basis of impairment. Finally, even if the first charge provided inadequate notice of the second, Defendant has not been prejudiced. The Commonwealth sought amendment of the information by oral motion in Defendant’s presence on July 23, 2020. The trial has been continued to November 5, 2020, providing Defendant with more than three months to carry out whatever additional trial preparations may be warranted in light of the amendment. ORDER OF COURT AND NOW, this day of September, 2020, the Commonwealth’s Motion to Amend the Information to add Count 4 under 75 Pa.C.S. § 3802(d)(2) is GRANTED. By the Court, /s/ Albert H. Masland Albert H. Masland, J. 9 The same difficultly is present in many other areas of law, from the monetary values employed in the grading of theft to the highway speed limits. In such cases, the legislature has deemed it preferable, as a matter of policy, to institute a necessarily imperfect bright line rule in lieu of permitting less predictable ad hoc determinations. -4- CP-21-CR-1581-2019 Daniel J. Sodus, Esq. Office of the District Attorney Joshua Yohe, Esq. Office of the Public Defender -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JOSEPH MICHAEL PAGE : CP-21-CR-1581-2019 IN RE: MOTION TO AMEND THE INFORMATION ORDER OF COURT AND NOW, this day of September, 2020, the Commonwealth’s Motion to Amend the Information to add Count 4 under 75 Pa.C.S. § 3802(d)(2) is GRANTED. By the Court, /s/ Albert H. Masland Albert H. Masland, J. Daniel J. Sodus, Esq. Office of the District Attorney Joshua Yohe, Esq. Office of the Public Defender