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HomeMy WebLinkAboutCP-21-CR-2324-2004COMMONWEALTH u BRIAN THOMAS GRANT OTN: L348958-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) DRIVING UNDER THE INFLUENCE, GENERAL IMPAIRMENT (2) DRIVING UNDER THE INFLUENCE, HIGH RATE OF ALCOHOL CP -21 -CR -2324-2007 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., September 10, 2008. In this criminal case, Defendant was found guilty following a bench trial of Driving under the Influence, General Impairment, and Driving under the Influence, High Rate of Alcohol.' As a second offender for mandatory sentencing purposes,2 he was sentenced on the latter charge to pay a fine of $750.00 and to undergo a period of imprisonment in the Cumberland County Prison of not less than 30 days nor more than 6 months; the former offense was deemed to merge with the latter for purposes of sentence .3 From the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania Superior Court.4 The sole basis for the appeal has been expressed in a statement of matters complained of on appeal as follows: Defendant avers that the evidence produced at trial was insufficient to support a conviction on Count 2: Driving Under the Influence, high rate of alcohol; Pa.C.S.A. 75§3802(b). Cf. Comm. V. Lippert, 887 A.2d 1277 (Pa. Super 2005). s ' Order of Court, May 7, 2008. 2 See Information, filed October 9, 2007; Presentence Investigation Report, at 2. s Order of Court, July 22, 2008. 4 Defendant's Notice of Appeal, filed July 30, 2008. Defendant remains at liberty on his own recognizance pending disposition of the appeal. Order of Court, May 7, 2008; Order of Court, July 22, 2008. s Defendant's Concise Statement of Matters Complained of On Appeal, filed August 11, 2008. The case referenced in Defendant's statement of matters complained of on appeal, Commonwealth v. Lippert, 2005 PA Super 399, 887 A.2d 1277, held, under a prior version of the driving under the influence law proscribing the operation of a vehicle with a .10% or greater BAC level at the time of driving, that a defendant had successfully rebutted a permissible inference of such level arising out of a post -driving test result, where (a) the driving occurred at 12:30 a.m., (b) breath test results of .105% and .115% were obtained at 1:28 and 1:29 a.m., respectively, (c) the defendant's expert opined that the type of breathalyzer employed had a margin of error of 10%, that at the time the samples were obtained the defendant's BAC level was rising, and that at the time of driving his BAC level would have been .045%, and (d) the Commonwealth's expert, testifying in response to the defendant's expert, conceded that the instrument had a margin of error of five percent and that she could not say the defendant's BAC level was not rising at the time the samples were obtained. 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 in the spring of 2007,6 Defendant was arrested and charged with operating a vehicle (a) while under the influence of alcohol to a degree that rendered him incapable of safe driving and (b) after imbibing a sufficient amount of alcohol to cause the alcohol concentration in his blood or breath to be at least .10% but less than .16% within two hours of driving.7 A non jury trial was conducted by the undersigned judge on February 15, 2008, and May 7, 2008. The evidence adduced at trial, viewed in the light most favorable to the Commonwealth,$ may be summarized as follows: On Tuesday, May 1, 2007, at 6 N.T. 20-27, Trial, February 15, 2008. Criminal Complaint, filed May 9, 2007. 'See Commonwealth v. Lippert, 2005 PA Super 399, 887 A.2d 1277. 2 2:05 a.m., Camp Hill Borough Patrol Officer Warren Scott Cornelious,9 who had extensive experience with respect to driving under the influence offenses,lo observed an automobile operated by Defendant at the intersection of Market and 32nd Streets in the borough." Defendant, who had been proceeding east on Market Street, stopped at a red light controlling the intersection, 12 moved forward and backed up over the white line at the intersection in an effort to cause the light to cycle, 13 and ultimately made an illegal right turn on red onto 32nd Street southbound. 14 Based upon the illegal turn, Officer Cornelious stopped Defendant's vehicle. 15 He detected the odor of an alcoholic beverage emanating from Defendant, 16 who advised that he was coming from a certain bar/restaurants? in the vicinity,l s that he had been drinking, 19 and that he had not had enough to drink.20 The results of field sobriety tests administered to Defendant on the scene, as described by the officer, were as follows: ... I administered the walk and turn, and in the instruction stage I noted that Mr. Grant could not keep his balance. During the walking stage of that test I noted that Mr. Grant missed heel to toe between steps two and three, and he made an improper turn by stopping and turning around rather than taking the small steps and turning around as I instructed.21 9 N.T. 18-21, Trial, February 15, 2008. 10 N.T. 18-19, 20, Trial, February 15, 2008. 11 N.T. 21, 23-25, Trial, February 15, 2008. 12 N.T. 21, Trial, February 15, 2008. "N.T. 21-22, 24, 33, 42-43, Trial, February 15, 2008; N.T. 93, Trial, May 7, 2008. 14 N.T. 22-23, 27, 32-33, Trial, February 15, 2008. Defendant claimed at trial that the light was green when he turned. N.T. 97, Trial, May 7, 2008. " N.T. 23, 27, 33, Trial, February 15, 2008. 16 N.T. 25, 51, Trial, February 15, 2008. 17 N.T. 30, Trial, February 15, 2008. " N.T. 25, Trial, February 15, 2008; N.T. 87, 89, Trial, May 7, 2008. 19 N.T. 88, Trial, May 7, 2008. 20 N.T. 25, Trial, February 15, 2008. 21 N.T. 26, Trial, February 15, 2008. 3 ... I [also] had him perform the one leg stand, and I noted that he swayed between 21 to 30 seconds, and he put his foot down once between 21 and 30 seconds.zz Based upon the foregoing, Officer Cornelious formed a belief, which he continued to hold at trial ,23 that Defendant had been driving under the influence of alcohol to a degree rendering him incapable of safe driving. 24 Defendant was placed under arrest at 2:14 a.m., handcuffed with his hands behind him, and placed in the rear of the officer's patrol car,25 which was otherwise empty.26 At 2:17 Officer Cornelious verified visually that Defendant had nothing in his mouth .27 He transported Defendant to the Cumberland County Prison from 2:18 a.m. to 2:40 p.m.,28 observing in the process no imbibing, ingesting, burping, vomiting, regurgitating, etc., on the part of Defendant.29 Upon arriving at the prison's booking center, Defendant was again subjected to an examination of his mouth by the officer '30 and turned over to a booking agent, who similarly observed no imbibing, ingesting, regurgitating, vomiting or belching on the part of Defendant31 Breath tests administered by the agent to Defendant at 2:46 a.m. and 2:47 a.m. yielded BAC results of .105% and .108% respectively. 32 22 N.T. 27, Trial, February 15, 2008. 2s N.T. 32, Trial, February 15, 2008. 24 N.T. 27, Trial, February 15, 2008. 2s N.T. 28, Trial, February 15, 2008. 26 N.T. 54, Trial, February 15, 2008. 27 N.T. 28, Trial, February 15, 2008. 2s N.T. 28-29, Trial, February 15, 2008. 29 N.T. 29, Trial, February 15, 2008. so N.T. 29, Trial, February 15, 2008. 31 N.T. 58, 68, Trial, February 15, 2008. 12 Commonwealth's Ex. 6, Trial, February 15, 2008. 11 Following the administration of the breath tests at the booking center, Defendant exhibited further physical signs of intoxication, described by the agent as follows: On the walk and turn the Defendant missed heel to toe, he stepped off the line, he took an improper amount of steps and he did not perform the turn as instructed. On the one leg stand the Defendant—the clue that I noticed was that he did sway in place while performing the test.33 During the booking process, Defendant's "agitation level went up and down, ,34 he cursed at the booking center officials,35 he told the agent that "[they] should put the handcuffs back on him,"36 he said that he had begun drinking at 11:30 p.m. and finished drinking at 1:45 a.m.,37 and he stated that he was under the influence of alcohol .38 The instrument utilized by the agent for the breath test was an Intoxilizer 5000 EN, 39 a device authorized by the Commonwealth to be used "for determining alcohol content of the blood by analysis of a person's breath. ,40 In the course of the testing procedure, the instrument, immediately prior to the first subject test, yielded a result of .096% on a known .10% sample, and, immediately after the second subject test, yielded a result of .095% on a known .10% sample .41 On behalf of Defendant at the trial, Lawrence Guzzardi, M.D.,42 testified as an expert "on breath testing of alcohol, blood alcohol physiology, human physiology of the metabolism of blood and alcohol in the blood stream, and the 33 N.T. 77, Trial, February 15, 2008. 34 N.T. 75, Trial, February 15, 2008. 3s N.T. 64, Trial, May 7, 2008. 36 N.T. 75, Trial, February 15, 2008. 37 Commonwealth's Ex. 7, Trial, February 15, 2008. 38 Commonwealth's Ex. 7, Trial, February 15, 2008. 39 N.T. 60, Trial, February 15, 2008. 40 N.T. 62, Trial, February 15, 2008; 34 Pa. Bull. 4204 (Aug. 7, 2004); see 28 Pa. Code 5.102. 41 Commonwealth's Ex. 6, Trial, February 15, 2008; N.T. 71, Trial, February 15, 2008; N.T. 79, Trial, May 7, 2008. 42 N.T. 10, Trial, May 7, 2008. E relationship between measured breath samples of alcohol in one's expired air as to its relationship with that actually existing in the blood. ,43 Dr. Guzzardi's basically addressed potential deviations between a subject's true level of alcohol in his or her blood and the level indicated by an Intoxilizer 5000 EN acting upon a breath sample.44 In this regard, Dr. Guzzardi referred to the effects of a subject's "blood/breath ratio," a subject's body temperature, a subject's blood alcohol absorption phase, and the imprecision inherent in the instrument in question. With respect to blood/breath ratio, he noted (a) that the instrument assumes a 2100/1 blood/breath ratio (i.e., 2100 parts of alcohol in the blood for every one part of alcohol in the breath),45 (b) that this assumption represents a median figure, with as many people being above it as below it, 46 (c) that some persons have ratios as high as 2500/1 and others have ratios as low as 1400/1,47 and (d) that a breath test utilizing such an instrument upon a person with a ratio lower than the median will produce a falsely elevated indication of the level of alcohol in the subject's blood .48 Dr. Guzzardi did not, however, testify as to what percentages of the population occupy what levels within the blood/breath ratio range spoken of,49 and he conceded that he did not know Defendant's particular blood/breath ratio.so With respect to body temperature, Dr. Guzzardi testified that a breath test utilizing the instrument in question upon a person with a lower than normal temperature will produce a falsely elevated indication of alcohol in the blood, by 43 N.T. 14-15, Trial, May 7, 2008. 44 N.T. 45, Trial, May 7, 2008. 4s N.T. 26, 30, Trial, May 7, 2008. 46 N.T. 31, Trial, May 7, 2008. 47 N.T. 27, Trial, May 7, 2008. 48 N.T. 35, Trial, May 7, 2008. 49 N.T. 33-34, Trial, May 7, 2008. so N.T. 52, Trial, May 7, 2008. 0 an amount of six percent per degree Celsius.51 However, Dr. Guzzardi did not testify as to the percentages of the population having less than normal temperatures; he conceded that he did not know whether Defendant's temperature on the night in question was below normal, and he conceded further that he had no reason to believe that Defendant had been ill on that occasion.52 With respect to the issue of the blood -absorption phasei.e., whether at the time of the test the alcohol content of the subject's blood was increasing, peaking or decreasing 53Dr. Guzzardi opined (a) that a breath testing instrument of the present type overestimated the alcohol in a subject's blood as much as 90% of the time when the test was administered during the absorptive phase 54 and (b) that, based upon information supplied by Defendant as to the times of his commencement and termination of alcohol consumption 55 and type of beverage consumed (Icehouse beer),56 and an assumption that Defendant drank steadily during the period of consumption,57 Defendant was more likely than not in the absorptive phase at the time the test was administered to him.58 However, Dr. Guzzardi conceded that more factual information would have been helpful on this issue, 59 and he did not quantify the extent of blood alcohol error that would be attributable to a breath test's being conducted during an absorptive phase as opposed to a non-absorptive phase.60 " N.T. 35-37, Trial, May 7, 2008; Defendant's Ex. 6, Trial, May 7, 2008. Sz N.T. 52, Trial, May 7, 2008. " N.T. 21, Trial, May 7, 2008. 14 N.T. 40, 51, Trial, May 7, 2008. " N.T. 20, 59, Trial, May 7, 2008. 16 N.T. 20, 59, Trial, May 7, 2008. 57 N.T. 40, Trial, May 7, 2008. " N.T. 40, 54, Trial, May 7, 2008 s9 N.T. 55, Trial, May 7, 2007. 60 At the conclusion of Dr. Guzzardi's testimony, he stated that in his earlier testimony he had "estimated that [Defendant's breath test result] was 75 to 90 percent higher than the actual measurement." N.T. 59, Trial, May 7, 2008. This seemed to the court to have been an 7 Finally, Dr. Guzzardi noted that "even the best testing [of the alcohol content of blood] has a 3 percent to 4 percent margin of error," and "just by common sense" an indirect test of a blood alcohol level, such as a breath test, "would have to be higher. "61 Based on all of the foregoing, Dr. Guzzardi opined that a breath test of the present type on a random subject would have a margin of error of 14%,62 and that, to a reasonable degree of medical certainty, Defendant's actual blood alcohol level at the time of the breath test which yielded a .105% result was more likely than not below .10%.63 As noted, based on the evidence presented the court found Defendant guilty of driving under the influence in the form of driving after imbibing, general impairment, 64 and guilty of driving under the influence in the form of driving after imbibing, high rate of alcohol .65 From the judgment of sentence, Defendant has appealed to the Pennsylvania Superior Court .66 DISCUSSION Statement of law. 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 Pa. Super. 490, 495-96, 478 A.2d inadvertently inaccurate summary of his testimony regarding the effect of the absorptive phase upon breath testing. 61 N.T. 42, Trial, May 7, 2008. 62 N.T. 43, Trial, May 7, 2008. 63 N.T. 41, 58, Trial, May 7, 2008. Only the lower of the two test results is to be regarded as the measured amount for purposes of the statutory criterion. 67 Pa. Code §77.24(b). 64 See Act of September 30, 2003, P.L. 120, §16, as amended, 75 Pa. C.S. §3802(a) (2008 Supp.). 61 See Act of September 30, 2003, P.L. 120, §16, as amended, 75 Pa. C.S. §3802(b) (2008 Supp.). 66 Defendant's Notice of Appeal, filed July 30, 2008. '3 1286, 1288 (1984). A challenge to the sufficiency of the evidence does not implicate the weight of the evidence. Commonwealth v. Butler, 2004 Pa Super 294, ¶9, 856 A.2d 131, 135, citing Commonwealth v Clark, 2000 PA Super 307, ¶4, 761 A.2d 190, 192. Furthermore, the trier -of -fact in a criminal case is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 2000 PA Super 284, ¶5, 764 A.2d 582, 585, quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). This prerogative applies to expert, as well as lay, testimony. See Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000). Under Section 3802(b) 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 0.10% but less than 0.16% 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, as amended, 75 Pa. C.S. 3802(b) (2008 Supp.) (emphasis added). This statute represents a departure from earlier versions which required a relation back of the subject's alcohol level to the time of driving and referred to "the amount of alcohol by weight in the blood." See Commonwealth v. Lippert, 2005 PA Super 399, ¶8, 887 A.2d 1277, 1279-80 (emphasis added). Application of law to facts. In the present case, several factors led the court to conclude that Defendant had been proven guilty beyond a reasonable doubt of the above offense. First, Defendant admitted to the consumption of alcohol prior to driving. Second, a test of Defendant's breath utilizing an approved, properly - operating testing device produced a test result of .105% within 41 minutes of Defendant's operation of his vehicle. Third, the instrument did not overestimate, and in fact underestimated, the alcohol content of two known samples at the time of Defendant's test. Fourth, the testimony of Defendant's expert was confined 0 basically to the accuracy with which a breath test could be expected to measure the alcohol content of blood and contained several limitations. In the latter regard, several considerations tended to weaken the effect of the expert's opinion regarding the alcohol content of Defendant's blood. First, there was no evidence to suggest that the breath test result produced a falsely elevated indication of the alcohol content of Defendant's blood due to his possessing an abnormally low blood/breath ratio; nor was there any evidence as to the probability of Defendant's being at a particular abnormal level within the blood/breath ratio range referred to by the expert. Second, there was no evidence to suggest that the test result produced a falsely elevated indication of the Defendant's blood due to his possessing an abnormally low body temperature; nor was there any evidence as to the probability of Defendant's having a particular abnormally low body temperature within the range referred to by Defendant's expert. Third, the factual basis for the expert's opinion that Defendant was in the absorptive phase at the time of the test was less than complete, and no quantification was presented as to the effect of such status in contrast to that of a non-absorptive phase status. When considered in conjunction with the absence of the prior, more onerous statutory requirement that the test result be related back to the time of driving, the prerogative of the fact -finder to accept all, part or none of an expert's opinion, and the legislature's adoption of language authorizing a conviction based upon "the alcohol concentration in the individual's blood or breath" in place of "the amount of alcohol by weight in the [individual's] blood," it is believed that the evidence in this case was more than sufficient to warrant a finding beyond a reasonable doubt that Defendant was guilty of driving under the influence in the form of driving after imbibing, high rate of alcohol. The case of Commonwealth v. Lippert, 2005 PA Super 399, 887 A.2d 1277, cited by Defendant in his statement of matters complained of on appeal, was, in the court's view, distinguishable from the present case in that (a) it was decided 10 under a prior version of the law where a fact -finder was required to relate a test result back to the time of driving and the issue of whether the operator's alcohol level was rising from an earlier level at the time of the test thus assumed particular significance, (b) the statute in question referenced blood concentration as opposed to blood or breath concentration, and (c) an expert called by the Commonwealth basically conceded the validity of the opinion of the defendant's expert. For the foregoing reasons, it is believed that the judgment of sentence from which Defendant has appealed was properly entered.67 BY THE COURT, J. Wesley Oler, Jr., J. David J. Freed, Esq. Cumberland County District Attorney For the Commonwealth Gary Lysaght, Esq. 1350 Fishing Creed Valley Rd. Harrisburg, PA 17112 For the Defendant 67 Since the case of Commonwealth v. Lippert, 2005 PA Super 399, 887 A.2d 1277, cited by Defendant as the basis for his appeal, did not involve an issue as to the twenty -minute observation period applicable to the administration of breath tests, the court has not addressed this aspect of the present case. But see Commonwealth v. Barlow, 2001 PA Super 145, 776 A.2d 273 (twenty - minute observation period, including period in police custody in police car, held not to require "eyes on his mouth 100% of the time"). 11