HomeMy WebLinkAboutCP-21-CR-1393-2004
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JAN L. NEUFELD
CP-21-CR-1393-2004
IN RE: MOTION OF DEFENDANT FOR OMNIBUS PRETRIAL RELIEF
OPINION AND ORDER OF COURT
Bayley, J., January 19, 2005:--
Defendant, Jan L. Neufeld, is charged with driving under the influence,1
limitations on driving on the left side of a roadway,2 and violating the right-of-way of
pedestrians in a crosswalk.3 She filed an omnibus pretrial motion for relief. A hearing
was conducted on October 8, 2004.
On February 14, 2004, shortly after midnight, Patrolman Robert Ressler of the
West Shore Regional Police Department followed a vehicle that was being operated
erratically within his jurisdiction. He legally clocked the vehicle at 54.7 miles per hour
in a 25 mile per hour zone. He stopped the vehicle which was being operated by
defendant. Defendant had a strong odor of alcohol on her breath, her speech was
slurred, and her eyes were bloodshot and glassy. She told Officer Ressler that she had
175 Pa.C.S. S 3802(a)(1) (general impairment with refusal, second overall offense and
second offense for mandatory sentencing purposes, a misdemeanor of the first
degree).
275 Pa.C.S. S 3306(a)(2), a summary offense.
375 Pa.C.S. S 3542, a summary offense.
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one beer. After the officer had her perform field sobriety tests, he arrested her for
driving under the influence. He read her the warnings on the Implied Consent Law from
DL-26 (12-03). Defendant questioned why she should take a test of blood alcohol
content, saying then that she had only two beers. Officer Ressler took her to a booking
center where he again advised her of the Implied Consent warnings after which she
refused a breath test to determine her blood alcohol level. Defendant was previously
convicted in Pennsylvania of driving under the influence on September 12, 1994, for a
violation that occurred on February 12, 1994.
Defendant raises a plethora of constitutional challenges to the new driving under
the influence law at 75 Pa.C.S. Sections 3801-3817.4 A person has standing to
challenge a statute when that person's conduct clearly falls within the prohibited acts
set forth therein. Commonwealth v. Balog, 672 A.2d 319 (Pa. Super. 1996). Some of
defendant's constitutional challenges to the new law do not relate to the specific charge
against her. We will only address the constitutional issues properly raised as to
defendant. There is a presumption of constitutionality of a statute and a heavy burden
of persuasion on the challenger. Commonwealth v. Mayfield, 832 A.2d 418 (Pa.
2003). Legislation will not be declared unconstitutional unless it clearly, palpably and
plainly violates the constitution. Id.
I. Defendant maintains that:
[alII related provisions contained in Act 24 of 2003 violate substantive due
4 The prior law at 75 Pa.C.S. Section 3731 was repealed.
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process and are void for vagueness and overbreadth [sic] and are in
violation of Article 1, S9 of the Pa. Constitution and the 5th and 14th
Amendments of the U.S. Constitution (see Commonwealth v. Barud, 681
A.2d 162 (Pa. 1996)) in that S3802:
a. fails to provide a reasonable standard by which a person
may gauge their conduct.
(i) The Headnote of Chapter 38 entitles the Chapter 38 as
dealing with offenses of "Driving After Imbibing Alcohol or
Utilizing Drugs" but S3802 is entitled "Driving Under the
Influence of Alcohol or Controlled Substance;"
b. encourages arbitrary and discriminatory enforcement;
c. unnecessarily encompasses both lawful and unlawful conduct;
d. fails to require proof that a person was incapable of safe driving
at the time of driving, operating and in actual physical control and
fails to require proof that at all time of driving, operating andlor
being in actual physical control the BAC level exceeded a
prohibited level;
e. fails to provide a "time nexus" between the imbibing andlor
utilizing; the act of being rendered incapable andlor being above a
prohibited level; and the act of driving, operating andlor being in
actual physical control;
f. does not require proof that a person was driving, operating or in
physical control or was driving under the influence of alcohol
andlor drugs or controlled substances andlor above a prohibited
level.
The headnote to Chapter 38, which encompasses 75 Pa.C.S. Sections 3801-
3817, is titled "Driving After Imbibing Alcohol or Utilizing Drugs." Section 3802
describes the specific conduct which constitutes the offense of driving under influence
of alcohol for which defendant is charged:
(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. (Emphasis added.)
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Clearly, Section 3802 provides a reasonable standard by which a person may
gauge their conduct. When a person is driving that person violates Section 3802(a)(1)
if any alcohol that person has imbibed renders that person incapable of safely driving.
The headnote of Chapter 38 does not constitute part of the law. 1 Pa. C. S. S 1101 (b).
It does not control the specific conduct that constitutes the offense of driving under the
influence under Section 3802(a)(1). It does not render the statute unconstitutional.
Section 3802 provides in part:
(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.
(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. . . .
(e) Minors-A minor 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 minor's blood
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or breath is 0.02% or higher within two hours after the minor has driven,
operated or been in actual physical control of the movement of the
vehicle.
(f) Commercial or school vehicles.-An individual may not drive,
operate or be in actual physical control of the movement of a commercial
vehicle, school bus or school vehicle in any of the following
circumstances:
(1) After the individual has imbibed a sufficient amount of
alcohol such that the alcohol concentration in the individuals' blood
or breath is:
(i) 0.04% or greater within two hours after the
individual has driven, operated or been in actual physical
control of the movement of a commercial vehicle other than
a school bus or a school vehicle.
(ii) 0.02% or greater within two hours after the
individual has driven, operated or been in actual physical
control of the movement of a school bus or a school vehicle.
(2) After the individual has imbibed 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. . . .
(g) Exception to two-hour rule.-Notwithstanding the provisions
of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance
concentration in an individual's blood or breath is an element of the
offense, evidence of such alcohol or controlled substance concentration
more than two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle is sufficient not
establish that element of the offense under the following circumstances:
(1) where the Commonwealth shows good cause explaining
why the chemical test could not be performed within two hours; and
(2) where the Commonwealth establishes that the individual
did not imbibe any alcohol or utilize a controlled substance
between the time the individual was arrested and the time the
sample was obtained.
In Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996), 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
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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, Co/autti 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).
Where there is no blood alcohol test as in the case sub judice, the Commonwealth,
under Section 3802(a)(1), must prove beyond a reasonable doubt that defendant, at the time
of driving, operating or being in actual physical control of the movement of a vehicle, was
incapable of safely driving as a result of imbibing alcohol. That is the same standard as in the
prior law at 75 Pa.C.S. Section 3731. The fact that there are changes in the new law when
the charge of driving under the influence is based on prohibited blood alcohol levels, does not
render Section 3802(a)(1) void for vagueness or it being overbroad. Furthermore, as set forth
in Commonwealth v. Barud, supra:
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
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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,
[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. Defendant maintains that the provisions of Chapter 38, Section 3802 "are not
rationally related to the state's interest in curbing persons from driving under the
influence of alcohol. . . ." That argument is silly. Defendant's alleged conduct in
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violating Section 3802(a)(1) was driving her automobile after imbibing a sufficient
amount of alcohol that rendered her incapable of safely driving. Driving under the
influence of alcohol is the exact conduct that is in the state's interest to prevent. The
various categories of offenses set forth in Section 3802 constitute a valid exercise of
the broad police powers of the Commonwealth. Commonwealth v. Mikulan, 504 Pa.
244 (1983).
III. Defendant maintains that because the new law creates a three tier offense,
grading and penalty system for those charged with driving under the influence, it
violates procedural due process. Procedural due process embodies the requirement
that there be adequate and timely notice to an accused, an opportunity to be heard and
the chance to defend before a fair and impartial tribunal. Commonwealth v. Parks,
768 A.2d 1168 (Pa. Super. 2001). Defendant has not pointed to any aspect of the
three tier offense, grading and penalty system which would deny her procedural due
process in a determination of whether she is guilty of driving under the influence. Any
issue regarding procedural due process before defendant's driver's license can be
civilly suspended is not an issue in this criminal stage.
IV. Defendant refused a test of her blood alcohol content without having been
advised of a right to seek the advice of counsel before she made that decision. She
maintains that the mandatory enhanced penalties for refusal to undertake a test after
her arrest converts the request for a chemical test into a critical stage under the Sixth
Amendment to the United States Constitution, and Article I, Section 9 of the
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Pennsylvania Constitution, thus triggering a right to counsel. Therefore, she seeks to
suppress evidence of her refusal. 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.
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.
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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. 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
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penalties.5 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 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 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:
5For 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).
6Petition for allowance of appeal denied, 719 A.2d 745 (Pa. 1998).
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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)
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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)
("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
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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:
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:
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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 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.
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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 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,
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CP-21-CR-1393-2004
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 under the influence, 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.
V. Noting that a test refusal increases the maximum penalty she is subject to if she
is convicted of violating Section 3802(a)(1), defendant maintains that not requiring the
Commonwealth to prove a refusal beyond a reasonable doubt violates her rights as set
forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). In Apprendi, the United States Supreme Court held that any fact which
increases the penalty for a crime beyond the prescribed statutory maximum sentence
must be submitted to a jury and proven beyond a reasonable doubt. The statutory
maximum for which the rule in Apprendi applies is the maximum sentence that may be
imposed solely on the basis of facts reflected in the jury verdict or admitted by
defendant. Blakely v. Washington, 542 U.S. _,124 S.Ct. 2531,159 L.Ed.2d 403
(2004).
In the case sub judice, defendant is charged in the information with driving
under the influence "general impairment with refusal." The information alleges that
defendant has one prior conviction for driving under the influence, and that she refused
a test of her blood alcohol content. Under Section 3806(b), the calculation for prior
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offenses for purposes of Section 3804 relating to penalties includes any conviction for
driving under the influence within ten years before the present violation occurred.
Defendant was convicted of driving under the influence on September 12, 1994. The
date of the current alleged offense is February 14, 2004. Thus, if defendant is
convicted of violating Section 3802(a)(1), it will be a second offense for penalty
purposes. Under Section 3803(a)(1) and Section 3804(a)(2)(i), a person who violates
Section 3802(a), a second offense without a refusal, commits a misdemeanor with a
maximum penalty of six months. Under Section 3803(b)(4) and Section 3804(c)(2)(i), a
person who violates Section 3802(a)(1), a second offense with a refusal, commits a
misdemeanor of the first degree with a maximum penalty of five years. The
Commonwealth having pled that defendant refused a test of her blood alcohol content
after she was arrested for driving under the influence by Patrolman Ressler, will, in
order to subject defendant to a maximum penalty of five years, have to prove beyond a
reasonable doubt that she violated Section 3802(a)(1), and that she refused a test of
her blood alcohol content. There has been no Apprendi violation.
VI. Defendant maintains that the new driving under the influence law is ex post facto
in violation of Article I, S 10 of the United States Constitution and Article I, S 17 of the
Pennsylvania Constitution. The statue went into effect on February 1, 2004.
Defendant is charged with driving under the influence on February 14, 2004. A statute
violates the ex post facto clauses of the United States and Pennsylvania Constitutions
if it was adopted after the complaining party committed the criminal acts charged and
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inflicts greater punishment than the applicable law when the crime was committed.
Commonwealth v. Kline, 695 A.2d 872 (Pa. Super. 1997). Because the new driving
under the influence law was in effect at the time defendant is alleged to have violated it,
her ex post facto claim is without merit.
VII. Defendant maintains that Section 3804 imposes penalties that are inconsistent
with and exceed the grading which Section 3803 prescribes because:
Under S 3803, as 3802(a)(1) with a refusal and one prior would be an
ungraded misdemeanor (up to six months. . .) but under S 3804, it would
be an M 1, 90 days to five years . . .
Under Section 3803(a)(1), "An individual who violates section 3802(a) (relating
to driving under influence of alcohol or controlled substance) and has no more than one
prior offense commits a misdemeanor for which the individual may be sentenced to a
term of imprisonment of not more than six months. . .." Under Section 3804(c):
An individual who violates section 3802(a)(1) and refused testing of
blood or breath. . . shall be sentenced as follows. . .
(2) For a second offense, to
(i) undergo imprisonment for not less than 90 days
nor more than five years. (Emphasis added.)7
It is the refusal that increases the penalty under Section 3804(c)(2) for a second
offense in contrast to what the penalty would be for a second offense without a refusal
under Section 3803(a)(1) and 3804(a)(2)(i). The sections do not impose inconsistent
penalties.
VIII. Defendant maintains that the new driving under the influence law denies her
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"State and Federal due process in that the statutory provisions require no mens rea
and constitute absolute criminal liability and impose criminal liability unrelated to
whether a person is under the influence or capable of safe driving." The same issue
was raised and rejected with respect to the prior driving under the influence law in 75
Pa.C.S. Section 3731, an offense similar to Section 3802(a)(1). Commonwealth v.
Mikulan, 504 Pa. 244 (1983).
IX. Defendant maintains that "There is no reasonable basis to conclude that one
episode of imbibing a sufficient amount of alcohol to become incapable of safe driving
. . . renders that person unsafe to ever drive." What is prohibited under Section
3802(a)(1) is driving "after imbibing a sufficient amount of alcohol such that the
individual is rendered incapable of safely driving. . . ." That is a question for a jury to
decided based on the facts of each case. It is no different than the prior driving under
the influence law at 75 Pa.C.S. Section 3731.
X. Defendant maintains that Section 3802 "violates equal protection guaranteed by
the State and Federal Constitutions, . . . as applied to Defendant, in that it treats
similarly situated persons differently and such different treatment is not rationally
related to the protection of the public from intoxicated drivers." As it relates to the
information charging a violation of Section 3802(a)(1), defendant challenges the
provisions that, upon conviction, increases the penalty for having a prior driving under
the influence offense, and refusing a test of her blood alcohol content. The privilege to
7 This is a misdemeanor of the first degree under Section 3803(b)(4).
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operate a motor vehicle is not a fundamental right, and the police power of the
Commonwealth in matters pertaining to the regulation of alcoholic beverages is
particularly broad. Commonwealth v. McMullen, 756 A.2d 58 (Pa. Super. 2000).
Accordingly, the rational basis standard is the test for review of defendant's claim that
she is being denied equal protection of the law. Id. As set forth in McMullen, under
the rational basis standard:
The first question is "whether the challenged statute seeks to promote any
legitimate state interest or public value." Id. at 1328. The second prong
of the analysis evaluates whether the statute is reasonably related to
accomplishing that articulated state interest or interests.
In McMullen, the defendant was charged under the prior law with driving under
the influence of alcohol as a minor. Section 3731 prohibited a minor from operating a
motor vehicle at the time of driving with a blood alcohol content of 0.02% or greater.
The limit for an adult was 0.10% or greater. The Superior Court of Pennsylvania held
that the law was constitutional because it promoted a legitimate state interest, was
reasonably related to accomplish that interest, and was not arbitrary or irrational.
In the case sub judice, by increasing the penalty for a second offense, the
legislature intends to discourage and deter multiple offenses of driving under the
influence. That is a legitimate exercise of police power given the damage caused to
society by many who drive under the influence. Prior offenses are a factor in the
disposition of all criminal cases.8 They can be a factor in the disposition of particular
8 The Judicial Code, at 42 Pa.C.S. Section 9721 (b), provides that, "The court shall also
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offenses.9 Recidivism is not an arbitrary or irrational consideration in the sentencing of
defendants.
As blood alcohol levels increase, penalties increase. A second offense with a
blood alcohol content of .08% to .099%, is an ungraded misdemeanor with a mandatory
minimum sentence of five days and a maximum sentence of six months. 75 Pa.C.S. S
3804(a)(2). A second offense with general impairment or with a blood alcohol content
of .10% to .159%, is an ungraded misdemeanor with a mandatory minimum sentence of
thirty days and a maximum sentence of six months. 75 Pa.C.S. S 3804(b)(2). A second
offense with general impairment and a test refusal, or with a blood alcohol content of
.16% or higher, is a misdemeanor of the first degree with a mandatory minimum
sentence of ninety days and a maximum sentence of five years.10 This three tier
system of treating offenders with a higher blood alcohol content more seriously is a
legitimate exercise of police power in an attempt to deter the damage caused by driving
under the influence. Severity of impairment is not an arbitrary or irrational
consideration in sentencing defendants. Because this structure is based, in part, on a
defendant's blood alcohol content, the importance of testing that content has
consider any guidelines for sentencing adopted by the Pennsylvania Commission on
Sentencing." Those guidelines, at 204 Pa. Code Ch. 303.5, require a calculation of a
prior record score based on prior convictions.
9 For example, the Judicial Code at 42 Pa.C.S. Section 9714(a) provides for mandatory
sentences for certain cases involving second and subsequent offenses.
10 This is the tier of the charge against defendant.
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increased.11 Section 1547(b)(2) provides that prior to requesting a test, "it shall be the
duty of the police officer to inform the person that. . . (ii) upon conviction, plea or
adjudication of delinquency for violating section 3802(a), the person will be subject to
the penalties
11 As in the prior statute at Section 3731, the new law provides that a test refusal is
admissible into evidence. 75 Pa.C.S. S 1547(e).
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provided in section 3804(c) (relating to penalties)." The system of treating offenders
with a higher blood alcohol content more seriously would be weakened if a person,
without repercussion at sentencing, refuses the allow a test of blood alcohol content.
Accordingly, an increased criminal penalty, upon conviction, promotes a legitimate
exercise of police power to deter the damage caused by driving under the influence. It
is reasonably related to accomplishing that articulated state interest. It is not arbitrary
or irrational in conjunction with the entire sentencing scheme in Section 3804.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this
day of January, 2005, the motion of defendant for
omnibus pretrial relief, IS DENIED.
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
Assistant District Attorney
P. Richard Wagner, Esquire
F or Defendant
:sal
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COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JAN L. NEUFELD
CP-21-CR-1393-2004
IN RE: MOTION OF DEFENDANT FOR OMNIBUS PRETRIAL RELIEF
ORDER OF COURT
AND NOW, this
day of January, 2005, the motion of defendant for
omnibus pretrial relief, IS DENIED.
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
Assistant District Attorney
P. Richard Wagner, Esquire
F or Defendant
:sal