HomeMy WebLinkAboutCP-21-CR-0035-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-0035-2008
:
:
JEFFREY J. NOPHSKER :
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, J.
On April 28, 2008, we entered an order in this case denying the defendant’s omnibus
pretrial motion in the nature of a motion to suppress evidence and a motion to dismiss the
charges. The defendant has been subsequently convicted and sentenced on Count 1 – DUI,
General Impairment, Second Mandatory; and Count 2 – DUI, Highest Rate of Alcohol, Second
Mandatory. In a statement of matters complained of on appeal, the defendant contends that:
1. The trial court committed error of law when it denied the Defendant’s Pre-Trial
Motion to Suppress evidence based on the Sixth Amendment in Article I, §9 right to counsel
before refusing to submit to chemical testing when such refusal would subject the DUI suspect to
imprisonment pursuant to 75 Pa.C.S. §3804(c).
2. The trial court erred in failing to dismiss and/or suppress due to the unconstitutionality
of 75 Pa.C.S. §3802 as a violation of substantive due process under Pa. (Article 1, §9) and U.S.
thth
Constitutions (5 and 14 Amendments) as being vague and overbroad facially and as applied to
the Defendant in this matter.
We now file this opinion in support of the order entered on April 28, 2008, with regard to the
defendant’s omnibus pretrial motion.
CP-21-CR-0035-2008
The issues raised by the defendant were dealt with by this court in 2005. In Com. v. Jan
L. Neufeld, 54 CLJ 96 (2006), Judge Edgar B. Bayley rejected the defendant’s argument that the
enhanced penalties for refusal to take a breath test after arrest can convert the request for the test
into a critical stage under the Sixth Amendment under the United States Constitution and Article
I, Section 9 of the Pennsylvania Constitution, thus triggering a right to counsel. Judge Bayley
was affirmed by the Superior Court in Com. v. Beshore, 916 A.2d 1128 (Pa.Super. 2007), the
Neufeld matter being one of several cases consolidated on appeal. In Beshore, the Superior
Court adhered to its holding in Com. v. Ciccola, 894 A.2d 744 (Pa.Super. 2006). That case
acknowledged that a request to submit to a chemical test can involve an important tactical
decision on the part of the person arrested. The fact, however, that the decision is of great
importance is insufficient to cause it to be recognized as a critical stage of the proceedings so as
to create the right to counsel. The right to counsel at this stage “is not constitutionally mandated
and the denial of the right to confer with counsel prior to deciding whether to submit to chemical
testing does not render appellant’s refusal inadmissible.” Com. v. Beshore, at 1141 citing Com.
v. Ciccola, 894 A.2d at 750.
The due process arguments raised by the defendant in this case were also rejected by
Judge Bayley in Com. v. Neufeld, supra. The core of these arguments is that the new driving
under the influence law fails to provide the requisite nexus in time between drinking alcohol and
the act of being rendered incapable of safe driving or above the prohibitive blood/alcohol level.
In affirming Judge Bayley’s earlier decision, the Superior Court in Com. v. Beshore, supra,
concludes that the current Driving Under the Influence Law, 75 Pa.C.S.A. 3802(a-c), provides a
reasonable standard for drivers to gauge their conduct and, therefore, the statute is not void for
2
CP-21-CR-0035-2008
vagueness. The Court concludes, inter alia, that the time nexus argument claiming that the
statute is overbroad necessarily involves a reading of the statute which is “absurd and
unreasonable.” Id, at 1137. The Beshore case makes it clear that the due process arguments
advanced by the defendant are not supported by Pennsylvania law. We see no need to review
that matter further.
November 4, 2008 _______________________________
Kevin A. Hess, J.
Matthew Smith, Esquire
Sr. Assistant District Attorney
Bryan McQuillan, Esquire
For the Defendant
:rlm
3