HomeMy WebLinkAboutCP-21-CR-2074-2004
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DANIEL RICHARD BRANTNER
CP-21-CR-2074-2004
IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE
OPINION AND ORDER OF COURT
Bayley, J., January 3, 2005:--
Defendant, Daniel Richard Brantner, is charged with driving under the influence
of alcohol, general impairment, third or subsequent overall, second mandatory,1 driving
under the influence of alcohol, highest rate (.16% +) third or subsequent overall, second
mandatory,2 violation of registration and certificate of title requirements,3 operation of a
vehicle without an official certificate of inspection,4 and careless driving.5 Defendant
filed an omnibus pretrial motion to suppress evidence in which he claims that the new
driving under the influence law is unconstitutional.6
On April 25,2004, at approximately 2:07 p.m., defendant was operating a vehicle
in North Middleton Township, Cumberland County. He was stopped by Patrolman Peter
Castle of the North Middleton Township Police Department. Patrolman Castle
subsequently arrested for driving under the influence of alcohol. The officer took
175 Pa.C.S. SS 3802(a)(1). A misdemeanor of the 2nd degree.
275 Pa.C.S. S 3802(c). A misdemeanor of the 1 st degree.
375 Pa.C.S. S 1301. A summary offense.
475 Pa.C.S. S 4703(a). A summary offense.
575 Pa.C.S. S 3714. A summary offense.
675 Pa.C.S. S 3801-3817. The former law at 75 Pa.C.S. S 3731 was repealed.
CP-21-CR-2074-2004
defendant to the Carlisle Hospital, advised him of the Implied Consent warnings, and
asked him to submit to a blood test. The warnings did not indicate that defendant had
any right to consult with an attorney before he made a decision to undertake a blood
test. Defendant did undertake a blood test.
Defendant argues that the new driving under the influence law is unconstitutional
because: (1) Section 3802 is "vague and overbroad," (2) Section 3804 is "vague," and
(3) a request for consent to the testing of blood alcohol level is a "post-arrest critical
stage of the prosecution and therefore the accused has a right to counsel under both
the United States Constitution and Pennsylvania Constitution."
I. IS SECTION 3802 OF THE VEHICLE CODE VAGUE AND OVERBROAD?
Defendant maintains that the blood alcohol level provisions in 75 Pa.C.S. Section
3802 are vague and overbroad. Section 3802(a) provides:
(2) 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 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.
(b) High rate of alcohoL-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 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.
(c) Highest rate of alcohoL-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 alcohol
concentration in the individual's blood or breath is 0.16% or higher
within two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle. (Emphasis
added.f
7The minimum blood alcohol levels are lower for minors, (subsection (e)), and for
operations of commercial or school vehicles, (subsection (f)).
-2-
CP-21-CR-2074-2004
Defendant cites Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996), in support
of his position. In Barud, the Supreme Court of Pennsylvania noted:
"As generally stated, the void for vagueness doctrine requires that a
penal statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discrimination
enforcement." Mikulan, supra at 251, 470 A.2d at 1342, quoting, Ko/ender
v. Lawson, 461 U.S. 352, 357,103 S.Ct. 1855, 1858,75 L.Ed.2d 903
(1983). See Commonwealth v. Burt, 490 Pa. 173, 177-78,415 A.2d 89,
91 (1980), quoting, Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675,
683,58 L.Ed.2d 596 (1979) (a statute is void for vagueness if it "'fails to
give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute"'). Due process requirements are
satisfied if the statute provides reasonable standards by which a person
may gauge their future conduct. Commonwealth v. Heinbaugh, 467 Pa. 1,
6,354 A.2d 244,246 (1976), citing, United States v. Powell, 423 U.S. 87,
94,96 S.Ct. 316, 320-21,46 L.Ed.2d 228 (1975).
A statute is "overbroad" if by its reach it punishes constitutionally
protected activity as well as illegal activity. Grayned v. City of Rockford,
408 U.S. 104, 114,92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972);
Commonwealth v. Stenhach, 356 Pa.Super. 5, 25, 514 A.2d 114, 124
(1986), appeal denied, 517 Pa. 589, 534 A.2d 769 (1987). . .. ("'a
governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.''') (citations omitted).
The Court stated:
The issue presented in this appeal is whether the newly enacted
Driving Under the Influence statute, 75 Pa.C.S. S 3731 (a)(5), which
imposes criminal penalties on individuals who have a blood alcohol
content ("BAC") equal to or in excess of .10% within three hours of driving,
violates the due process guarantees of the United States and
Pennsylvania Constitutions. Because, S 3731 (a)(5) unnecessarily
encompasses both lawful and unlawful conduct; fails to provide a
reasonable standard by which a person may gauge their conduct;
encourages arbitrary and discriminatory enforcement; and fails to require
proof that a person's BAC actually exceeded the legal limit at the time of
driving;, we conclude that 75 Pa.C.S. S 3731 (a)(5) is unconstitutional.
The basis of the holding was that,
-3-
CP-21-CR-2074-2004
[w]ithout requiring any proof that a person actually exceeded the legal limit
of .10% at the time of driving, the statute sweeps unnecessarily
broadly into activity which has not been declared unlawful in this
Commonwealth, that is, operating a motor vehicle with a BAC below
.10%. (Emphasis added.)
***
Thus, a person may be prosecuted under S 3731 (a)(5) even though his or
her blood alcohol level did not actually rise about the legal limit of
.10% until after the last instance in which he or she drove.
Unlike the prior driving under the influence law at 75 Pa. C.S. Section 3731 as
amended by Section 3731 (a)(5), the new law does not contain a .10% "legal limit." The
new legal limit is "0.08 percent within two hours after an individual has driven, operated
or been in actual physical control of the movement of the vehicle." Therefore, unlike in
Barud, the new law does not encompass both lawful and unlawful conduct. The new
legal limit of .08 percent or above within two hours after driving that constitutes the
offense is a reasonable standard by which people may gauge their conduct. Thus, the
statute does not encourage arbitrary and discriminatory enforcement.
II. IS SECTION 3804 OF THE VEHICLE CODE UNCONSTITUTIONALLY
VAGUE?
Section 3804 is the penalties section of the new driving under the influence law.
Defendant argues that because the section contains increased penalties for multiple
violations without defining the word "offense," it is vague. Section 3804 uses the term
"prior offense," when increasing penalties for multiple violations. A "prior offense" is
defined in Section 3806 as follows:
(a) General rule.-Except as set forth in subsection (b), the term
"prior offense" as used in this chapter shall mean a conviction,
adjudication of delinquency, juvenile consent decree, acceptance of
Accelerated Rehabilitative Disposition or other form of preliminary
-4-
CP-21-CR-2074-2004
disposition before the sentencing on the present violation for any of the
following:
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under
paragraphs (1) and (2) in another jurisdiction; or,
(4) any combination of the offenses set forth in paragraphs
(1), (2) or (3).
(b) Repeat offenses within ten years.- The calculation of prior
offenses for purposes of sections 1553(d.2) (relating to occupational
limited license) and 3804 (relating to penalties) shall include any
conviction, adjudication of delinquency, juvenile consent decree,
acceptance of Accelerated Rehabilitative Disposition or other form of
preliminary disposition within the ten years before the present violation
occurred for any of the following:
(1) an offense under section 3802;
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under
paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offense set forth in paragraph (1),
(2) or (3). (Emphasis added.)
The enhanced sentencing scheme in Section 3806 is the same type of scheme
that was in former Section 3731 of the Vehicle Code. In Commonwealth v. Eck, 411
Pa. Super. 465 (1992), the Superior Court of Pennsylvania, citing Commonwealth v.
Kimmel, 523 Pa. 107 (1989), noted that:
"Violating" in the common usage of the term refers to the time when
the offensive conduct takes place, and it should not be confused
with the point where the judicial process judges a violator to be
accountable and then administers its punishment in accordance
with due process. We read Section 3731(e)(1) ... as meaning
exactly what it says: a present violation and a previous conviction
constitute the look-back period. The plain meaning of the statute
affords no other interpretation.
By the same reasoning, Section 3806 of the new law is not vague.
III. DOES A PERSON ARRESTED FOR DRIVING UNDER THE INFLUENCE
HAVE A RIGHT TO SEEK THE ADVICE OF COUNSEL BEFORE MAKING A
-5-
CP-21-CR-2074-2004
DECISION TO UNDERTAKE A TEST OF BLOOD ALCOHOL CONTENT?
Defendant alleges that he undertook a test of his blood alcohol content without
having been advised of a right to seek the advice of counsel before he made the
decision to take the test. He argues that the use of mandatory enhanced penalties for
refusal to provide evidence after arrest converts a request for a chemical test to a
critical stage under the Sixth Amendment to the United States Constitution, and Article I,
Section 9 of the Pennsylvania Constitution, thus triggering a right to counsel.
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 penalties provided in section 3804(c)
(relating to penalties). (Emphasis added.)
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.
-6-
CP-21-CR-2074-2004
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;
(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.)
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 into evidence at trial.
-7-
CP-21-CR-2074-2004
Under the prior law, however, a person, upon conviction for driving under the
influence of alcohol to a degree that rendered that person incapable of safe
driving, was subject to mandatory penalties.8 In Commonwealth v. Graham,
703 A.2d 510 (Pa. Super. 1997),9 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 S 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
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 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. S 1547(e)
8For 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. S 3731 (e).
9Petition for allowance of appeal denied, 719 A.2d 745 (Pa. 1998).
-8-
CP-21-CR-2074-2004
authority of the Commonwealth to inform the factfinder that the
defendant refused to take the test.
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 S 1547 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. Schmerber v. 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)
-9-
CP-21-CR-2074-2004
("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 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, S
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:
-10-
CP-21-CR-2074-2004
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, S 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 reI.
Stukes v. Shovlin, 329 F.Supp. 911, 913, (E.D.Pa.1971),
aff'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.
Commonwealth 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 reI. Stukes
v. Shovlin, 329 F.Supp. 911 (E.D.Pa.1971), aff'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." Id. 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
-11-
CP-21-CR-2074-2004
enough, 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. 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 whether a consent to search was voluntary, such status does not
-12-
CP-21-CR-2074-2004
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 test of blood
alcohol content, 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.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this
day of January, 2005, the motion of defendant
to suppress evidence, IS DENIED.
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
For the Commonwealth
Patrick F. Lauer, Jr., Esquire
For Defendant
:sal
-13-
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DANIEL RICHARD BRANTNER
CP-21-CR-2074-2004
IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE
ORDER OF COURT
AND NOW, this
day of January, 2005, the motion of defendant
to suppress evidence, IS DENIED.
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
For the Commonwealth
Patrick F. Lauer, Jr., Esquire
For Defendant
:sal