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HomeMy WebLinkAbout00-2149 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF VS. JOEL ROBERT SEITZ SR. CUMBERLAND COUNTY, PENNSYLVANIA 00-2149 CRIMINAL IN 1~: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER AND NO W, this day of February, 2001, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Michelle Hamilton, Esquire Assistant District Attorney Hess, J. John Lyons, Esquire For the Defendant :rlm COMMONWEALTH VS. JOEL ROBERT SEITZ SR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2149 CRIMINAL IN RE' OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER The events giving rise to this suppression motion occurred around midnight on July 12, 2000. Officers Jeff Kurtz and Eric Dale of the Carlisle Police Department were following the defendant who was operating a white and brown Plymouth voyager northbound on North Pitt Street. The roadway is unmarked but they observed the van being operated to the left of the center of the roadway. Officer Kurtz testified that the defendant drove in this manner for four to five blocks. Officer Dale recalled that after two or three blocks the defendant returned to a normal position in the highway. Both officers testified that on one occasion the van swerved even further to the left before righting itself. The defendant later told the police that a cat ran out in front of him causing him to swerve. Officer Dale seems to recall the defendant making this statement and observing the cat, himself. Officer Kurtz's testimony was silent on this subject. Officer Dale. initially approached the defendant and, while he thought the defendant may have been under the influence of something, he did not detect an odor of alcohol nor did he consider the defendant's speech slurred. The defendant was, moments later, confronted by Officer Kurtz who testified that the defendant's speech was slurred, that he detected an odor of alcohol and that the defendant had glassy, bloodshot eyes. 00-2149 CRIMINAL The defendant was taken to the processing center at the courthouse where he was processed by Officer Douglas Brandt. The defendant underwent a field sobriety test which he passed. He had, in the meantime, been given his rights under the implied consent law which contain an admonition that if he did not consent to a breath test his license would be suspended. The first tests were conducted between 1'16 and 1'19 a.m. witha result of.127. At 2:00 a.m. the defendant was asked if he would consent to a second round of tests. This inquiry was made because the first test was under. 140 and it is the policy of the district attorney's office that a second test be conducted, presumably to determine whether the blood alcohol level is rising or falling. The defendant agreed to take the second round of tests because, in part, he felt that if he did not, his driver's license would be suspended. The second round of tests yielded a result of .111. It is clear that a police officer may conduct a traffic stop where he has reasonable and articulable grounds to suspect a violation of the Motor Vehicle Code. Com. v. Howard_, 762 A.2d 360 (2000). In this case, both of the officers testified that the defendant was driving to the left of the center of the road. Given that cars were parked along the right-hand side of the road, the defendant's operation of his vehicle in this fashion was arguably understandable and this is certainly a close case. Nonetheless, the Motor Vehicle Code is clear that a vehicle must be driven on the right half of the roadway. 75 P.S. 3301. Thus, the evidence of a violation of the Motor Vehicle Code was sufficient to warrant a traffic stop in this case. The next question raised here is whether or not the results of the second set of breath tests are admissible. The Pennsylvania Supreme Court, in Com., Pa. Dept. of Transp. v. McFarren_, 525 A.2d 1185 (Pa. 1987) made clear that a police officer must establish circumstances which 00-2149 CRIMINAL support the reasonableness of a second search of the defendant's blood or breath. In McFarren, the defendant was requested to and consented to perform a breathalyzer test. He was then asked to submit to a second test. He refused. In reversing the defendant's license suspension, the Supreme Court held that a request for a second test may not be made unless the police officer can demonstrate a reasonable basis for it. In the matter sub judice, a second test was requested for the obvious purpose of determining whether or not the defendant's blood alcohol level was rising or falling. The purpose of the second test was never communicated to the defendant. Had he refused the second test, it is clear that Mr. Seitz would not be subject to the suspension of his driver's license. He did not refuse, however. Instead, he consented. The case of Com. v. Dunn_e, 690 A.2d 1233 (Pa. Super. 1997) stands for the proposition that, where a motorist voluntarily consents to a second test of his blood/breath, the reasonableness standard set forth in McFarren need not be considered. It is the Commonwealth's burden, under such circumstances, to prove by clear and convincing evidence that valid consent was given. Id_._:. at 1236. In determining whether consent was voluntarily given, the court examined the following factors' 1) the setting in which the consent was obtained; 2) what was said and done by the parties present; and 3) the age, intelligence and educational background of the person consenting. Id___:. The defendant had been told, in connection with his first test, that his license would be suspended if he did. not consent. When asked to take a second test, the defendant was not informed that he could refuse. With that exception, however, there was nothing coercive about the setting in which the defendant found himself. There is no evidence that Officer Brandt was anything but courteous. It is clear that Mr. Seitz was intelligent enough 00-2149 CRIM~AL to know that the test results would be used against him. We know of no appellate cases dealing with the question of whether or not, with respect to the taking of a second test, the motorist should be advised of his right to refuse. We can only be guided by general search and seizure principles. In that regard, it appears well established that in obtaining a consent to search, the defendant need not be informed of his right to refuse. Com. v. Edwards, 735 A.2d 723 (Pa. Super. 1999) (A police officer is not required to inform a defendant of his right to refuse consent to a warrantless search of a house before a valid consent to search can be obtained.) Com. v. Cleckley, 738 A.2d 428 (Pa. 1999) (Even under the Pennsylvania State Constitution which provides greater privacy rights than the Fourth Amendment in certain respects, a defendant was deemed to have voluntarily consented to the "pat down" of his person even though he had not been advised of his right to refuse.) Com. v. Markman~, 467 A.2d 336 (Pa. Super. 1983) (The Commonwealth did not have to establish that the defendant was aware of her right to refuse consent to search by an arson investigator.) For the foregoing reasons, we will deny the defendant's omnibus pretrial motion,l ORDER AND NOW, this ~.~ t' day of February, 2001, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Hess, J. ~ We will leave to the trial of this case the question of whether or not the defendant was observed prior to taking the breath test under circumstances which assured a reliable result.