HomeMy WebLinkAboutCP-21-CR-0983-2004COMMONWEALTH
DONALD J. NERAT, JR.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CP-21-CR-983-2004
OPINION IN SUPPORT OF ORDER OF AUGUST 20, 2004
Bayley, J., October 8, 2004:--
Defendant, Donald J. Nerat, Jr., is charged with: driving after imbibing, highest
rate (.16% +),1 and driving while operating privileges are suspended, DUI related.: He
filed a motion to suppress evidence. Following a hearing, the motion was denied on an
order dated August 20, 2004. This opinion is filed in support of that order.
Defendant sought to suppress admission of a test of his breath taken within two
hours of his driving for which he was arrested. The test showed a blood alcohol
content of .33%. He averred:
The decision whether to submit to chemical testing constitutes a
critical stage of proceedings.
Due to the enhanced nature of penalties based on submitting to
testing or refusing to do so, Defendant is entitled to counsel at the time he
is requested to submit to chemical testing under the Fifth and Sixth
Amendments of the United States Constitution as well as Article I, Section
9 of the Pennsylvania Constitution.
Defendant could not knowingly, voluntarily, and intelligently waive
the right to counsel under those circumstances.
The evidence presented at the suppression hearing was that before defendant
1 75 Pa.C.S. § 3802(c).
: 75 Pa.C.S. § 1543(b)(1.1)(i).
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consented to taking a breath test an officer read him the following warnings from Form
DL-26 (12-03):
1. Please be advised that you are under arrest for driving under the
influence of alcohol or controlled substance in violation of Section 3802 of
the Vehicle Code.
2. I am requesting that you submit to a chemical test of breath.
3. It is my duty as a police officer to inform you that if you refuse to
submit to the chemical test, your operating privilege will be suspended for
at least one year. In addition, if you refuse to submit to the chemical test,
and you are convicted of, plead to, or adjudicated delinquent with respect
to violating Section 3802(a) of the Vehicle Code, because of your refusal,
you will be subject to the more severe penalties set forth in Section
3804(c) of the Vehicle Code, which include a minimum of 72 hours in jail
and a minimum fine of $1,000.00.
4. It is also my duty as a police officer to inform you that you have no
right to speak with an attorney or anyone else before deciding
whether to submit to testing and any request to speak with an
attorney or anyone else after being provided these warnings or
remaining silent when asked to submit to chemical testing will
constitute a refusal, resulting in the suspension of your operating
privilege and other enhanced criminal sanctions if you are convicted
of violating Section 3802(a) of the Vehicle Code. (Emphasis added.)
The Vehicle Code at 75 Pa.C.S. Section 1547(b), titled "Suspension for refusal,"
provides:
(1) If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to do so, the
testing shall not be conducted but upon notice by the police officer, the
department shall suspend the operating privilege of the person as follows:
(2) It shall be the duty of the police officer to inform the
person that:
(i) the person's operating privilege will be suspended upon
refusal to submit to chemical testing; and
(ii) upon conviction, plea or adjudication of delinquency
for violating section 3802(a), the person will be subject to the
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penalties provided in section 3804(c) (relating to penalties).
(Emphasis added.)3
Section 1547(e), provides:
Refusal admissible in evidence.--In any summary proceeding or
criminal proceeding in which the defendant is charged with a violation of
section 3802 or any other violation of this title arising out of the same
action, the fact that the defendant refused to submit to chemical testing as
required by subsection (a) may be introduced in evidence along with
other testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be considered
along with other factors concerning the charge.
The Vehicle Code at 75 Pa.C.S. Section 3802, provides:
(a) General impairment.--
(1) An 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 individual is rendered incapable of safely driving,
operating or being in actual physical control of the movement of the
vehicle.
Section 3804(c), provides:
(c) Incapacity; highest blood alcohol; controlled substance.--An
individual who violates section 3802(a)(1) and refused testing of
blood or breath or an individual who violates section 3802(c) or (d) shall
be sentenced as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72 consecutive
hours nor more than six months;
3 This court, Hess J., in Garner v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Licensing, __ Cumberland L.J. (04-1815
Civil, August 26, 2004), held that where the actual mandatory minimum sentence for
the petitioner upon conviction for violating Section 3802(a) after a refusal to take a test
of blood alcohol level was 90 days, the warning provided from DL-26 (12-03) was
inadequate under Section 1547(b)(2) to support a suspension of petitioner's operating
privilege.
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(ii) pay a fine of not less than $1,000 nor more than $5,000;
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment requirements
imposed under section 3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days nor
more than five years;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment requirements
imposed under sections 3814 and 3815.
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year nor
more than five years;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment requirements
imposed under section 3814 and 3815. (Emphasis added.)
Defendant argues in his brief:
The use of mandatory enhanced criminal penalties for refusal to provide
evidence after arrest converts the request for a chemical test into a critical
stage for Sixth Amendment purposes as well as Article I, Section 9
purposes and triggers the right to counsel .... Defendant was told he
faced increased penalties if he refused to provide a breath sample. His
subsequent breath sample resulted from the coercive effect of that
warning.
Defendant correctly states that the mandatory penalties in Section 3804(c) upon
conviction after a refusal of a breath test were not part of former Section 3731 of the
Vehicle Code which provided only that a refusal to take a test was admissible in
evidence at trial.4 Under the prior law, however, a person, upon conviction for driving
4 The former law at 75 Pa.C.S. § 3731 has been replaced with 75 Pa.C.S. Sections
3801-3817.
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under the influence of alcohol to a degree that rendered that person incapable of safe
driving, was subject to mandatory penalties? In Commonwealth v. Graham, 703 A.2d
510 (Pa. Super. 1997),6 the Superior Court of Pennsylvania, in a case decided under
the prior driving under the influence law, considered the argument of appellant that:
[t]he results of his blood test should not have been admitted at trial. In
support of this contention, appellant maintains that his consent to the
blood test was invalid because the officer coerced him to incriminate
himself in violation of his fifth amendment rights. He asserts that he
consented to the test only because he was afraid of the inferences the
factfinders would draw if they learned he refused to take the blood test.
He contends that such consent deprived him of his right not to incriminate
himself.
The Superior Court concluded:
Although appellant acknowledges that § 1547(e)2 of the Motor
Vehicle Code permits a defendant's refusal to submit to chemical testing
to be introduced at trial, appellant argues that this provision is
unconstitutional because it attaches a penalty to his exercise of a
constitutional right. The constitutional right he claims is his right to refuse
the blood test, and the penalty he alleges is the authority of the
Commonwealth to inform the factfinder that the defendant refused to take
the test.
2 In any summary proceeding or criminal proceeding in which the
defendant is charged with a violation of section 3731 or any other
violation of this title arising out of the same action, the fact that the
defendant refused to submit to chemical testing as required by subsection
(a) may be introduced in evidence along with other testimony concerning
5 For a first offense, not less than 48 hours or more than two years; for a second
offense, not less than thirty days or more than two years; for a third offense, not less
than ninety days or more than five years; for a fourth or subsequent offense, not less
than one year or more than five years. 75 Pa.C.S. § 3731(e).
Petition for allowance of appeal denied, 719 A.2d 745 (Pa. 1998).
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the circumstances of the refusal. No presumptions shall arise from this
evidence but it may be considered along with other factors concerning the
charge. 75 Pa.C.S. § 1547(e)
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Appellant's argument is flawed for several reasons. First, contrary to his
assertion, appellant had no constitutional right to refuse the blood
test. Therefore, § 1547(e) does not burden appellant's constitutional
rights by allowing evidence of his refusal to consent to be admitted
at trial. Appellant's right to refuse the blood test is derived only from §
547 itself and not from the Constitution. As explained by our supreme
court in Commonwealth v. Stair, 548 Pa. 596, 699 A.2d 1250 (1997),
under our Implied Consent Law, there is:
No constitutional right to refuse chemical testing ....
[D]riving in Pennsylvania is a civil privilege conferred on individuals
who meet the necessary qualifications set forth in the Vehicle
Code .... Under the terms of the Implied Consent Law, one of the
necessary qualifications to continuing to hold that privilege is that a
motorist must submit to chemical sobriety testing, when requested
to do so by an authorized law enforcement officer in accordance
with the prerequisites of the Implied Consent Law. The obligation
to submit to testing is related specifically to the motorist's
continued enjoyment of the privilege of maintaining his operator's
license.
Id.
Indeed, the United States Supreme Court has also made it clear
that a defendant does not have a constitutional right to refuse blood tests.
Schmerberv. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966). The Schmerber Court noted that while blood test evidence may
be "an incriminating product of compulsion," such evidence in no way
implicates an accused's testimonial capacities and therefore, its
admission does not offend the privilege against self incrimination
embodied in the fifth amendment. See id. at 765, 86 S.Ct. at 1832-33.
The Court noted that the fifth amendment privilege relates to testimony or
communication from an accused. The privilege does not prevent the
police from using the accused's body or blood as physical evidence when
it is material. Id. at 763-64, 86 S.Ct. at 1831-32.
Taking this analysis another step, the United States Supreme
Court has further reasoned "that since submission to a blood test could
itself be compelled,.., a State's decision to permit a suspect to refuse to
take the test but then to comment upon that refusal at trial [does] not
'compel' the suspect to incriminate himself and hence [does] not violate
the privilege" Pennsylvania v. Muniz, 496 U.S. 582, 604 n. 19, 110 S.Ct.
2638, 2652 n. 19, 110 L.Ed.2d 528 (1990) (citation omitted). See also
South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 922, 74
L.Ed.2d 748 (1983)
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("the values behind the Fifth Amendment are not hindered when the State
offers a suspect the choice of submitting to the blood-alcohol test or
having his refusal used against him"). This court has previously joined
the Supreme Court in this sentiment. See Commonwealth v. Dougherty,
259 Pa. Super. 88, 393 A.2d 730 (1978) (admission into evidence of
defendant's refusal to submit to breathalyzer test did not violative of
defendant's privilege against self incrimination); Commonwealth v.
Robinson, 229 Pa. Super. 131,324 A.2d 441 (1974) (admission into
evidence of defendant's refusal to submit to breathalyzer test under
implied consent law does not violate defendant's fifth amendment
privilege against self-incrimination).
Section 1547(e) merely represents a codification in Pennsylvania
of the rule of Neville and Schmerber expressly permitting refusals to be
made known to the factfinder where the police reasonably believe that the
defendant is under the influence of alcohol or a controlled substance.
Because it is clear that appellant had no constitutional right to refuse the
blood test, § 1547(e) does not burden appellant's constitutional rights by
allowing evidence of his refusal to consent to be admitted at trial. As
such, where, as here, a defendant consents to a blood test after being
informed that his refusal could be admitted at trial, we find such consent
to be valid and not coerced. (Emphasis added.) (Footnotes 3 and 4
omitted.)
In Commonwealth v. West, 370 Pa. Super. 365 (1988), a defendant convicted
of driving under the influence had sought to suppress evidence of a test of his blood
alcohol content at. 17 percent, arguing that he should have been permitted to speak to
an attorney before deciding whether to take the test. The Superior Court of
Pennsylvania noted that most state courts which have considered the issue have
followed the reasoning of the United States Supreme Court in United States v. Wade,
388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and have held that submission to
a breathalyzer test is not a critical stage, and, thus, no constitutional right to counsel
attaches thereto. The Court stated:
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Generally, the right to counsel attaches at all critical stages of a criminal
proceeding. See: Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101
(1978); Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971);
Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968). This is
true under both the Sixth Amendment of the United States Constitution
and Article I, § 9 of the Pennsylvania Constitution. In re Gartley, 341
Pa. Super. 350, 365, 491 A.2d 851,859 (1985), affirmed, 513 Pa. 429,
521 A.2d 422 (1987). This Court has described a critical stage as follows:
A "critical stage" of the prosecution has been defined as "any stage
of the prosecution, formal or informal, in or out of court, where
counsel's absence might derogate from the accused's right to a fair
trial." United States v. Wade, supra, 388 U.S. [218] at 226, 87
S.Ct. [1926] at 1932 [18 L.Ed.2d 1149 (1967)]. The thrust of the
right to counsel is the entrustment of the right to a fair trial.
Thus, counsel's presence at "critical stages" of the proceedings is
mandated because "counsel's legal training and expertise may
then be employed on behalf of the accused to observe, discover
and prevent possible unfairness or irregularity in... procedures
which may later irreparably prevent a basically fair determination of
guilt or innocence." United States ex re/. Stukes v. Shov/in, 329
F.Supp. 911,913, (E.D.Pa.1971), afl'd, 464 F.2d 1211 (3d
Cir. 1972). We are required, therefore, to scrutinize the designated
proceeding to determine whether the presence of counsel is
necessary to preserve an accused's basic right to a fair trial. This
inquiry calls upon us to analyze whether potential substantial
prejudice to an accused's rights inheres in the particular
proceeding and whether counsel would have the ability to help
avoid that prejudice. United States v. Wade, supra.
Commonwea/th v. Shirey, 333 Pa. Super. 85, 104, 481 A.2d 1314, 1324
(1984). See also: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,
18 L.Ed.2d 1149 (1967); United States ex re/. Stukes v. Shov/in, 329
F.Supp. 911 (E.D.Pa.1971), afl'd, 464 F.2d 1211 (3d Cir. 1972).
The United States Supreme Court in United States v. Wade, supra,
reasoned that preparatory steps in the gathering of evidence by the
prosecution, "such as systematized or scientific analyzing of the
accused's fingerprints, blood sample, clothing, hair, and the like," are not
"critical stages at which the accused has the right to the presence of his
counsel."/d. 388 U.S. at 227, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157-1158.
Essential to this reasoning was the Court's observation that
[k]nowledge of the techniques of science and technology is
sufficiently available and the variables in techniques few enough,
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that the accused has the opportunity for a meaningful confrontation
of the Government's case at trial through the ordinary processes of
cross-examination of the Government's expert witnesses and the
presentation of the evidence of his own experts. The denial of a
right to have his counsel present at such analyses does not
therefore violate the Sixth Amendment; they are not critical
stages since there is minimal risk that his counsel's absence
at such stages might derogate from his right to a fair trial.
United States v. Wade, supra at 227-228, 87 S. Ct. at 1932, 1933, 18
L.Ed.2d at 1158. See also: Commonwealth v. Stukes, 435 Pa. 535, 257
A.2d 828 (1969).
In the instant case, we conclude that the presence of an attorney
prior to the administration of a breathalyzer test is not necessary to
ensure that an accused receives a fair trial on charges of driving
while under the influence of alcohol. Such a procedure is not akin to a
lineup, which contains the dangers of suggestiveness and
misidentification which an attorney's legal training and experience may be
able to prevent. Moreover, a breath test is not testimonial in nature so as
to make an attorney's presence essential to preserve the accused's
privilege against self-incrimination. See: Commonwealth v. Anderl, 329
Pa. Super. 69, 477 A.2d 1356 (1984); Commonwealth v. Benson, 280
Pa. Super. 20, 421 A.2d 383 (1980). The breathalyzer is mechanical in
nature, and the trial of the case presents adequate opportunity to explore
and challenge the accuracy of the device used to implement the test, as
well as the qualifications of the personnel who conducted it.
Appellant testified that he would have refused to submit to the test
if an attorney had advised him not to take it. This argument is
unpersuasive. Appellant was advised by the police that refusing to submit
to the test would lead to a suspension of his license. Faced with this
choice, he consented to the test. This is all that was required by
Pennsylvania's implied consent law. 75 Pa.C.S. § 1547. To now require
that one accused of drunk driving be given the right to consult with an
attorney prior to consenting to a breathalyzer test would frustrate the very
purpose of the implied consent law. Delay in administering the test
would, because of the evanescent nature of alcohol in the blood stream,
serve only to impair the accuracy of the test. See: Commonwealth v.
Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986). (Emphasis added.)
In search and seizure cases, while custodial status is a factor in determining
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whether a consent to search was voluntary, such status does not trigger a Sixth
Amendment right to counsel before there can be a voluntary consent to search, nor
must a defendant waive a right to consult an attorney before voluntarily consenting to a
search. See Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999). Severe penalties,
in some cases mandatory minimum sentences, occur upon convictions based on what
police find in such searches. In the case sub judice, without a constitutional right to
refuse a blood test, Graham, supra, the severity of the penalties that can occur only
after a conviction for driving while imbibing, is of no legal consequence. The collection
of evidence of blood alcohol content is not a critical stage at which the Sixth
Amendment right to counsel attaches. West, supra. Accordingly, the order denying
defendant's motion to suppress evidence was properly entered.
(Date)
Jonathan R. Birbeck, Esquire
Jaime M. Keating, Esquire
For the Commonwealth
Timothy L. Clawges, Esquire
For Defendant
:sal
Edgar B. Bayley, J.
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