HomeMy WebLinkAboutCP-21-CR-2066-2005 (2)
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) DRIVING UNDER THE
: INFLUENCE, GENERAL
: IMPAIRMENT
v. : (2) OPERATION OF VEHICLE
: WITHOUT OFFICIAL
: CERTIFICATE OF
: INSPECTION
MICHAEL GARCIA :
DUTREY :
OTN: L244412-0 : CP-21-CR-2066-2005
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 22, 2007.
In this criminal case, Defendant was found guilty following a bench trial of
Driving under the Influence, General Impairment (alcohol content of blood or
breath between .08 and .10 percent), a misdemeanor and second offense for
mandatory sentencing purposes, and of Operation of Vehicle without Official
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Certificate of Inspection, a summary offense. He was sentenced on the driving-
under-the-influence charge in accordance with the mandatory minimum period of
imprisonment required by law and on the summary offense to the statutory fine
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applicable to it.
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From the judgment of sentence, Defendant has filed an appeal to the
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Pennsylvania Superior Court. The basis of the appeal has been expressed in a
statement of matters complained of on appeal as follows:
The Common[wealth]’s evidence of guilt was insufficient as they
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failed to call an expert witness to rebut the expert testimony of defendant.
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Order of Court, April 2, 2007.
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Order of Court, May 15, 2007.
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Although Defendant has styled the appeal as being from a denial of a post-sentence motion, it is
more properly viewed as an appeal from the judgment of sentence. See Commonwealth v. Lewis,
2006 PA Super 314, ¶1 n.1, 911 A.2d 558, 561 n.1.
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Defendant’s Notice of Appeal, filed September 7, 2007.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring on Wednesday, June 22, 2005,
Defendant was charged with (a) Driving under the Influence in the form of driving
after imbibing, general impairment (alcohol content of blood or breath .08-.10%),
a misdemeanor, (b) Driving under the Influence in the form of driving after
imbibing, general impairment (incapable of safe driving), a misdemeanor, (c)
Careless Driving, a summary offense, and (d) Operating Vehicle without Official
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Certificate of Inspection, a summary offense. The charges of Driving under the
Influence in the form of driving after imbibing, general impairment (alcohol
content of blood or breath .08-.10%), and Operating Vehicle without Official
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Certificate of Inspection were forwarded to court by the issuing authority.
At trial, the Commonwealth called two witnesses, Pennsylvania State
Trooper Christopher Allen Nemes and Cumberland County Booking Officer
Shawn Richard Washinger. Defendant called one witness, Lawrence Guzzardi,
M.D.
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In the Commonwealth’s case-in-chief, Trooper Nemes testified that on
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June 22, 2005, at 4:32 p.m. in South Middletown Township, Cumberland County,
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Pennsylvania, he and another state trooper stopped a vehicle being driven by
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Defendant’s Concise Statement of Matters, filed September 26, 2007.
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Criminal Complaint, filed July 7, 2005.
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Transcript from Magisterial District Judge, filed August 25, 2005. Although the
Commonwealth subsequently included in the information a count relating to the other form of
driving under the influence, it subsequently withdrew that charge. N.T. 56, 101, Trial, March 22,
2007 and April 2, 2007 (hereinafter N.T. __); Order of Court, March 22, 2007.
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N.T. 4, Trial, March 22, 2007, and April 2, 2007.
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N.T. 9, 11.
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N.T. 9.
11
N.T. 9.
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Defendant on Bonnybrook Road due to the absence of an inspection sticker on
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the windshield. Based upon various indicia of drunk driving, including a strong
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odor of an alcoholic beverage, glassy, bloodshot eyes, and an admission of
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drinking, Defendant was placed under arrest and transported to the Cumberland
County Booking Center for administration of a chemical test to determine the
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alcohol content of his blood.
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Booking Officer Shawn Richard Washinger testified as to his credentials
to operate the Intoxilizer 5000 EN breathalyzer utilized in Defendant’s case to
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measure his BAC. Evidence in the form of the instrument’s calibration and
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accuracy certificate was also presented, and counsel stipulated that this type of
instrument was an approved testing device for determining blood alcohol levels in
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Pennsylvania. A self-check performed by the instrument immediately prior to
the administration of Defendant’s test on a known sample produced an
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underestimated result of .093.
An alcohol breath test administered at 5:53 p.m. upon Defendant yielded a
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result of .087%. A self-check performed by the instrument following the
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N.T. 12.
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N.T. 9.
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N.T. 10.
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N.T. 11.
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N.T. 11.
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N.T. 11.
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N.T. 14-15.
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N.T. 20.
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N.T. 21-22.
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Commonwealth’s Ex. 5.
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N.T. 24; Commonwealth’s Ex. 4.
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N.T. 31; Commonwealth’s Ex. 6. Known samples commonly contain an alcohol content of
.10%. See N.T. 84-86; see, e.g., State v. Cook, 1978 WL 215931 (Ohio App. 3d Dist.).
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N.T. 30; Commonwealth’s Ex. 6.
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administration of Defendant’s test on a known sample produced an underestimated
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result of .097.
Booking Officer Washinger also testified that Defendant had slurred
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speech, swayed, and emitted an odor of an alcoholic beverage. Defendant,
according to Officer Washinger, told him that he had started drinking at 1:00 p.m.
and stopped at 2:00 p.m., that he had been drinking wine, and that he had had two
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or three glasses of it.
On behalf of Defendant, Lawrence Guzzardi, a physician and medical
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toxicologist, was permitted to testify as an expert in the areas of toxicology and
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the reliability of blood alcohol testing instruments. Dr. Guzzardi testified that, of
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the three permissible forms of chemical testing under the Vehicle Code, the least
accurate in terms of determining blood alcohol content was a urine test, the most
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accurate was a blood test, and the breath test was of intermediate accuracy.
According to Dr. Guzzardi, the type of instrument used for Defendant’s test
was considered functional if its results on a known .10% sample did not vary from
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the exact figure by more than about ten percent. In addition, Dr. Guzzardi
testified that (a) a breath test reflected only indirectly the alcohol content of the
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subject’s blood, (b) studies had shown a 65 to 90 percent chance of a blood
alcohol content overestimate where the subject of a breath test was in the
absorptive phase at the time the test was administered (c) other studies suggested
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Commonwealth’s Ex. 6.
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N.T. 32-33.
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N.T. 32.
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N.T. 57.
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N.T. 59-60.
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See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1547; Kostyk v.
Commonwealth, Department of Transportation, 131 Pa. Commw. 455, 570 A.2d 644 (1990).
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N.T. 70-71.
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N.T. 84-86.
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61.
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that a blood alcohol overestimate would occur in at least 23% of the cases where
the subject was in the dissipative phase at the time the breath test was
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administered, and (d) he could not say to a reasonable degree of medical
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certainty which phase Defendant had been in when the test was administered.
Dr. Guzzardi accordingly opined that it could not be said to a reasonable degree of
medical certainty that Defendant’s blood alcohol level was .08% or greater at the
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time his breath test was administered.
At the conclusion of the trial, and following oral argument, the court found
Defendant guilty of Driving under the Influence, General Impairment (alcoholic
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content of blood or breath .08%-.10%), and of the summary offense. As a
second offender for mandatory sentencing purposes, he was sentenced on the DUI
charge to a period of imprisonment in the county prison of not less than five days
nor more than six months, and to pay a fine of $300.00; on the summary offense,
he was sentenced to pay a fine of $25.00.
Defendant’s appeal from the judgment of sentence was filed on September
7, 2007.
DISCUSSION
On a challenge to the sufficiency of the evidence in a criminal case, the
proper test is “whether, viewing the evidence admitted at trial in the light most
favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to
find every element of the [crime] charged beyond a reasonable doubt.”
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996),
quoting Commonwealth v. Carter, 329 A.2d 490, 495-96, 478 A.2d 1286, 1288
(1984).
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N.T. 69.
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N.T. 68.
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N.T. 68, 77-78
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Order of Court, April 2, 2007.
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The trier of fact is “free to believe all, part or none of the evidence.”
Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d A.2d 582, 585,
quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257
(1986). This principle is applicable to the testimony of an expert. Commonwealth
v. Passarelli, 2001 PA Super 377, ¶26, 789 A.2d 708, 715, citing Commonwealth
v. Carson, 559 Pa. 460, 741 A.2d 686 (1999).
A challenge to the sufficiency of the evidence does not implicate a
weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856
A.2d 131, 135.
Under Section 3802(a)(2) of the Vehicle Code, “[a]n individual may not
drive, operate or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the alcohol concentration in the
individual’s blood or breath is at least 0.08% but less than 0.10% within two hours
after the individual has driven, operated or been in actual physical control of the
movement of the vehicle.” Act of September 30, 2003, P.L. 120, §16, 75 Pa. C.S.
§3802(a)(2) (emphasis added). Prior versions of driving-under-the-influence
statutes spoke in terms of the alcohol concentration in the individual’s blood as
opposed to the alcohol concentration in the individual’s blood or breath. See, e.g.,
Act of December 18, 1992, P.L. 1411, §12. Presumably, the additional language
was a response to arguments that breath tests failed to provide a reliable
measurement in terms of the statutory element of the offense.
Where the evidence of the Commonwealth tends to show that a timely and
properly administered breath test produced a result above .08%, it is under no
obligation to produce an expert to rebut the opinion of a defense expert
challenging the result, in order to reach the trier of fact. Cf. Commonwealth v.
Greth, 2000 PA Super 238, 758 A.2d 692 (2000).
In the present case, where (a) the Commonwealth produced evidence
tending to show that a test of Defendant’s breath for alcohol content performed by
a qualified operator on a properly certificated and approved instrument within two
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hours of Defendant’s operation of a vehicle on a Pennsylvania highway produced
a test result of .087%, (b) the instrument in question was at the time producing
underestimates on known samples, (c) the testimony of Defendant’s expert was
primarily directed to the issue of whether a breath test result accurately reflected a
blood alcohol content and, in any event, did not have to be credited by the trier of
fact, it is believed that the evidence was sufficient for the trier of fact to find
beyond a reasonable doubt that Defendant’s statutory alcohol level within two
hours of operation was over .08%. For this reason, it is further believed that the
judgment of sentence in this case was properly entered.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
Daniel J. Sodus, Esq.
Assistant District Attorney
For the Commonwealth
Karl E. Rominger, Esq.
For the Defendant
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