Loading...
HomeMy WebLinkAbout99-0813 criminalCOMMONWEALTH VS. THOMAS J. SMITH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · 99-0813 CRIMINAL IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER AND NOW, this lO '" day of August, 1999, the omnibus pretrial motion of the defendant is DENIED. BY THE COURT' Jaime Keating, Esquire Chief Deputy District Attorney ~yih A. Hess, J. Jeanne Wigbels, Esquire For the Defendant :rlm COMMONWEALTH VS. THOMAS J. SMITH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · 99-0813 CRIMINAL IN RE' OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER In this case the defendant has filed a motion to suppress evidence questioning the legality of an encounter between the defendant and a police officer that ultimately led to the defendant being arrested for driving under the influence (DUI). The motion also challenges whether the criminal charge against the defendant for violating 75 Pa.C.S.A Section 3731 (a)(4) should be dismissed. Upper Allen Police Department Officer Peter Beauduy was following the defendant's vehicle at roughly 3'50 A.M., when he observed it cross the fog line in the road. The officer also clocked the defendant's speed at over seventy miles per hour in a fifty-five mile per hour zone. Officer Beauduy initiated a traffic stop of the defendant, approached the driver side and informed Mr. Smith that the traffic stop was being videotaped. Officer Beauduy also received the defendant's permission to tape-record the defendant's voice. The officer noticed that the defendant's eyes were bloodshot and glassy and that the defendant was slurring his speech. The officer asked the defendant if he had been drinking, and requested that the defendant step out of his car. The officer had the defendant perform field sobriety tests, which the defendant failed. The officer again asked the defendant if he had been drinking and, according to the officer's testimony, the defendant replied that he had "five to six beers, three to four hours ago." The traffic stop lasted eight to twelve minutes before the defendant was placed under arrest for driving under the influence. 98-0813 CRIMINAL The first aspect of the defendant's motion to suppress deals with whether Officer Beauduy had reasonable suspicion to suspect that the defendant was driving under the influence prior to initiating the traffic stop. Officers have authority to stop vehicles, pursuant to Section 6308(b) of the Vehicle Code, when they have "articulable and reasonable grounds to suspect a violation of the Code." Commonwealth v. Whitmeye_r, 542 Pa. 545, 551,668 A.2d 1113, 1116 (Pa. 1995). The Pennsylvania Superior Court has observed that "erratic driving is reasonable suspicion for an investigative traffic stop." Commonwealth v. Lymph, 372 Pa. Super. 97, 101, 538 A.2d 1368, 1370 (Pa. Super. Ct. 1988). Here, the defendant's driving can certainly be characterized as erratic, as the officer viewed the defendant's car cross over the center line and the solid fog line while traveling in excess of seventy miles per hour in a fifty-five mile per hour zone. The defendant next challenges whether the officer had probable cause to arrest for driving under the influence. In Commonwealth v. Montini, 712 A.2d 761,764 (Pa. Super. Ct. 1998), the Superior Court found that Montini's erratic and unsteady driving, the odor of alcohol coming from inside Montini's vehicle, and his failure to pass field sobriety tests gave the officer probable cause to arrest for driving under the influence. Given the factual similarities between Montini and the situation at bar, we are satisfied that Officer Beauduy had probable cause to arrest the defendant for driving under the influence. The defendant's motion also questions the admissibility of the statements given by the defendant during the traffic stop because the defendant was not read his Miranda rights. Miranda 98-0813 CRIMINAL warnings need be given only when a defendant is subjected to interrogation while in custody. Commonwealth v. Toanone, 381 Pa. Super. 336, 343,553 A.2d 998, 1001 (Pa. Super. Ct. 1989). Additionally, the United States Supreme Court has clarified that police need only give Miranda warnings while engaging in a traffic stop when the suspect is placed under actual arrest, or when questioning of the suspect is "so prolonged or coercive as to approximate the atmosphere of a station house interrogation." Toanone, 381 Pa. Super. at 345, 553 A.2d at 1002; citing Berkemer v. McCarthy, 468 U.S. 420, 440 (1984). Here, the defendant was not yet under arrest when Officer Beauduy asked the defendant if he had anything to drink, and the entire stop lasted only eight to twelve minutes before the defendant was arrested. The brevity of the stop, when combined with the limited inquiries of Officer Beauduy, clearly did not create an environment approximating a station house atmosphere. Furthermore, the fact that the officer testified that he had made up his mind to arrest the defendant before asking him a second time whether he had been drinking is irrelevant. "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time." Commonwealth v. Proctor, 441 Pa. Super. 176, 183,657 A.2d 8, 11 (Pa. Super. Ct. 1994). Therefore, Officer Beauduy's asking the defendant whether he had been drinking prior to arresting the defendant did not violate the defendant's Miranda rights. The defendant's motion also questions whether the 75 Pa.C.S.A. Section 3731 (a)(4) charge for driving while having a blood alcohol content (BAC) of greater than or equal to. 10% should be dismissed based on the Commonwealth's failure to present any expert testimony at the preliminary hearing to relate back the defendant's BAC to the time when he was driving the 98-0813 CRIMINAL vehicle. At the preliminary hearing the Commonwealth must produce evidence that, if accepted as tree, would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Allbeck, 715 A.2d 1213, 1215 (Pa. Super. Ct. 1998). In Commonwealth v. Murray, 1999 PA Super. LEXIS 135, the Pennsylvania Superior Court struck down as unconstitutional 75 Pa.C.S.A. 373 l(a. 1), which is the section which states that a BAC of. 10% or above taken within three hours of driving was prima facie evidence that the defendant was. 10% or above at the time of driving. However, the court's reasoning in that case was that the Commonwealth cannot prove the elements of 75 Pa.C.S.A.(a)(4) beyond a reasonable doubt at trial by presenting solely the results of a blood alcohol test. Murray does not, however, stand for the proposition that the Commonwealth cannot meet its burden at the preliminary hearing by introducing the results of a blood alcohol test without relation back testimony. Therefore, the fact that the defendant in this case registered a blood alcohol level of · 124% one hour and four minutes after his being stopped is clearly evidence that allows the Commonwealth to meet its burden for purposes of the preliminary hearing. ORDER AND NOW, this day of August, 1999, the omnibus pretrial motion of the defendant is DENIED. BY THE COURT: /~'n A. Hess, J. 98-0813 CRIMINAL Jaime Keating, Esquire Chief Deputy District Attorney Jeanne Wigbels, Esquire For the Defendant