HomeMy WebLinkAboutCP-21-CR-2766-2004
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ANTHONY JOHN LUCAS
CP-21-CR-2766-2004
IN RE: OMNIBUS PRETRIAL MOTION FOR RELIEF
OPINION AND ORDER OF COURT
Bayley, J., March 21, 2005:--
Defendant, Anthony John Lucas, is charged on an information:
Count 1:
Driving Under the Influence, General Impairment, 2nd Overall, 2nd
Mandatory
(MISDEMEANOR -- $300.00 -- $2,500.00 - 5 Days - 6 Mos.)
drive after imbibing enough alcohol to render said person incapable of
safe driving.1
Count 2:
Driving Under the Influence - Highest Rate of Alcohol (.16+), 2nd Overall,
2d Mandatory
(M1 -- $1,500.00 -- $10,000.00 - 90 Days - 5 Years)
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 said person's blood or breath is .16% or higher within two
hours after a person has driven, operated or been in actual physical
control of the movement of the vehicle.2
Defendant filed a motion for omnibus pretrial relief upon which a hearing was
conducted on February 8,2005. We find the following facts. On August 26,2004, at
1 :39 am., Officer Warren Cornelius of the Camp Hill Borough Police was outside the
175 PaC.S. S 3802(a)(1).
275 PaC.S. S 3802(c).
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office of a Magisterial District Judge. He heard a disturbance coming from a nearby
restaurant/bar. He saw a male get off the ground, get into a pickup truck, and leave.
Officer Cornelius got into his patrol vehicle and followed. He lost sight of the truck for a
short time but saw it again as it turned right off of 1 th Street eastbound on Market
Street in the Borough of Camp Hill. Market Street is a two lane street. After going four
blocks, during which Officer Cornelius observed no violations, the truck went into the
Borough of Lemoyne. Officer Cornelius continued to follow the truck and saw it enter a
marked left turn lane at Market and 1 ih Street. The left turn signal was on. Rather
than turning left onto 1 ih Street, the truck continued straight across the intersection
and into a marked left turn lane for westbound traffic on Market Street at 1 ih Street.
The truck continued in the oncoming left turn lane for ten to twenty yards then moved
right into the eastbound traffic lane on Market Street. In the 900 block on Market Street
the truck briefly straddled the center line between the two lanes of traffic on Market
Street. Officer Cornelius contacted Officer Robert Ressler of the West Shore Regional
Police Department. Officer Ressler was on patrol further east on Market Street in the
Borough of Lemoyne which is in his police jurisdiction. Officer Cornelius told Officer
Ressler what he had observed and he described the truck he was following. Officer
Cornelius then turned around. Officer Ressler was traveling westbound on Market
Street approaching the intersection of 3rd Street. He saw the truck described by Officer
Cornelius in the marked right turn lane for eastbound traffic turning right onto 3rd Street.
The truck was stopped behind another vehicle for a red traffic signal. When the signal
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changed the vehicle in front turned right but the truck went straight. While within the
intersection the truck moved left into the one traffic lane for continuing eastbound traffic
on Market Street, otherwise it would have hit a concrete island that is within the
intersection. Officer Ressler, who had passed the truck, made a U-turn, and followed it
eastbound on Market Street. He saw the truck on two separate occasions scrape the
right side wheels on the curb to the right of the eastbound lane. Officer Ressler
stopped the truck which was driven by defendant. After conducting an investigation at
the scene he arrested defendant for driving under the influence. While at the scene, he
read defendant the following chemical test warnings from the 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.)
Defendant agreed to a test of his breath. Officer Ressler took him to a booking
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center where a breath test was conducted. Defendant had previously been arrested on
November 21, 1998, for driving under the influence under the prior law at 75 PaC.S.
Section 3731.3 He was convicted on February 23, 1999.
Defendant raises the following claims in his omnibus pretrial motion for relief.
I. ACT 24 OF 2003, AS IT AMENDED ~ 6308, VIOLATES THE PA.
CONSTITUTION, ARTICLE I, ~ 8 AND ARTICLE I, ~ 1 AND 4TH AMENDMENT OF
THE U.S. CONSTITUTION (FACIALLY AND AS APPLIED TO THE DEFENDANT)
AND VIOLATES THE SEPARATION OF POWERS DOCTRINE OF THE STATE AND
FEDERAL CONSTITUTIONS.
Defendant seeks to suppress all evidence obtained by Officer Ressler after he
was stopped, maintaining that the officer did not have probable cause to stop his
vehicle. He argues:
75 PaC.S.A. S6308, as amended by Act 24 of 2003, violates the Pa
Constitution, Article I, S8 and Article I, S1 and the 4th Amendment of the
U.S. Constitution by requiring a lesser standard to stop a motor vehicle
than permitted by the Pa and U.S. Constitutions. See Commonwealth v.
Whitmyer, 542 Pa 545, 668 A.2d 1113 (1995); Commonwealth v.
Gleason, 785 A.2d 983 (Pa 2001). The actions by the Legislature of
amending 75 PaC.S.A. S6308 by Act 24 of 2003 violates the separation
of powers doctrine of the State and Federal Constitutions by destroying
actions by the Pennsylvania Supreme Court regarding the "probable
cause" requirement. See Commonwealth v. Sutlev, 474 Pa 256, 378
A.2d 780 (1977).
Section 6308(b) of the Vehicle Code provides:
375 PaC.S. Section 3731 has been repealed and replaced with 75 PaC.S. Sections
3801-3817.
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(b) Authority of police officer.-Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers or has
reasonable suspicion that a violation of this title is occurring or has
occurred, he may stop a vehicle, upon request or signal, for the
purpose of checking the vehicle's registration, proof of financial
responsibility, vehicle identification number or engine number or the
driver's license, or to secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions of this title.
(Emphasis added.)
The words "has reasonable suspicion that a violation of this title is occurring or
has occurred" in this Section replaced the words "has articulable and reasonable
grounds to suspect a violation of this title" in former Section 6308(b). Defendant
argues that reasonable suspicion is a lesser standard than probable cause to stop a
single vehicle, and probable cause is the minimum standard required by the Supreme
Court of Pennsylvania. In Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001), the
Supreme Court stated that the "articulable and reasonable grounds to suspect a
violation" standard in former Section 6308 of the Vehicle Code and "probable cause"
amounted to "nothing more than a distinction without a difference." In Commonwealth
v. Swanger, 453 Pa. 107 (1973), the Supreme Court of Pennsylvania stated:
If the alleged basis of a vehicular stop is to permit a determination
whether there has been compliance with the motor vehicle code of the
Commonwealth, it is encumbent [sic] upon the officer to articulate specific
facts possessed by him at the time of the questioned stop, which would
provide probable cause to believe that the vehicle or the driver was in
violation of some provision of the Code.4
We do not have to make any analysis of whether the standard to stop a single
4 Reaffirmed in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).
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vehicle has been lowered in the new Section 6308(b), and if so whether the section
violates the constitutions of the United States and Pennsylvania. Officer Ressler had
probable cause to believe that defendant violated Section 3111 (a) of the Vehicle Code,
which provides:
(a) General rule.-Unless otherwise directed by a uniformed
police officer or any appropriately attired person authorized to direct,
control or regulate traffic, the driver of any vehicle shall obey the
instructions of any applicable official traffic-control device placed or held
in accordance with the provisions of this tile, subject to the privileges
granted the driver of an emergency vehicle in this title.
First, Officer Ressler saw defendant in a lane marked for right turn only fail to
turn right and instead drive straight into the intersection toward a concrete island before
moving left into the only eastbound lane. While defendant disputes that there is
evidence that the intersection was marked to allow only a right turn in the right lane, we
are satisfied that there is sufficient evidence to support our finding that the right lane
was marked for a right turn only on August 26,2004.5 Second, Officer Ressler had a
reliable report from Officer Cornelius that constituted probable cause for him to believe
that defendant violated Section 3111 (a) by failing to make a left turn from the marked
left turn lane at the intersection of Market and 1 ih Street in the Borough of Lemoyne.
Third, Officer Ressler had a reliable report from Officer Cornelius that constituted
probable cause to believe that defendant violated Section 3301 of the Vehicle Code by
failing to drive on the right side of Market Street for the ten to twenty yards he was in
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the oncoming left turn lane after proceeding through the intersection at 1 ih Street.
Section 3301 provides:
(a) General rule.-Upon all roadways of sufficient width, a vehicle
shall be driven upon the right half of the roadway except as follows:
. .. (Emphasis added.)
None of the five exceptions in the statute applied to defendant when he drove
into the oncoming left turn lane on Market Street. Fourth, based on defendant's erratic
driving which constituted a safety hazard, Officer Ressler had probable cause to
believe that he was violating the Vehicle Code by operating while under the influence
of alcohol to a degree that rendered him incapable of safe driving. First, Officer
Ressler had a reliable report from Officer Cornelius that the vehicle defendant was
driving on Market Street in the Borough of Lemoyne, (a) had just failed to make a left
turn from the left turn lane at 1 ih Street, and then moved completely into the
oncoming turn lane for ten to twenty yards before it moved into the eastbound lane,
and (b) in the 900 block of Market Street briefly straddle the center line between the
two lanes. Second, Officer Ressler saw defendant, (a) drive into the intersection at 3rd
Street toward a concrete island where there was no continuing eastbound lane
before he moved left into the eastbound lane, and (b) on two separate occasions
scrape the right side wheels on the curb of the eastbound lane. See Commonwealth
v. Mickley, 846 A.2d 686 (Pa. Super. 2004), and Commonwealth v. Klopp, 863 A.2d
1211 (Pa. Super. 2004).
5 Those markings are shown on the photograph marked as Commonwealth Exhibit 2.
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II. MOTION TO SUPPRESS BECAUSE DEFENDANT WAS READ A DEFICIENT
AND MISLEADING DL-26 WHICH RESULTED IN AN UNKNOWING,
UNINTELLIGENT AND COERCED CONSENT TO THE TAKING OF THE BREATH
TEST.
Defendant seeks to suppress the results of his breath test for blood alcohol
content, maintaining that the following part of the warning that Officer Ressler read him
from DL-26 (12-03) does not conform with Section 1547(b)(2)(ii) of the Vehicle Code:
[i]f you refuse to submit to the chemical test, you are convicted of, plead
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. (Emphasis added.)
Section 1547 of the Vehicle Code provides in part:
(b) Suspension for refusal.-
(1) If any person placed under arrest for a violation of section
3802 is required 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:
(i) Except as set forth in subparagraph (ii), for a period of 12
months.
(ii) For a period of 18 months if any of the following apply:
(A) The person's operating privileges have
previously been suspended under this subsection.
(B) The person has, prior to the refusal under this
paragraph, been sentenced for:
(I) an offense under section 3802;
(II) an offense under former section 3731;
(III) an offense equivalent to an offense
under subclause (I) or (II); or
(IV) a combination of the offenses set forth
in this clause. (Emphasis added.)
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(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.)
(c) Test results admissible in evidence.-In any summary
proceeding or criminal proceeding in which the defendant is charged with
a violation of section 3802 or any controlled substance in the defendant's
blood, as shown by chemical testing of the person's breath, blood or
urine, which tests were conducted by qualified persons using approved
equipment, shall be admissible in evidence.
(e) 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. (Footnotes omitted.)
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(a) provides:
(a) General impairment.-An individual who violates section 3802(a)
(relating to driving under influence of alcohol or controlled substance)
shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo a period of probation not to exceed six months;
(ii) pay a fine of $300 . . .
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(2) For a second offense, to:
(i) undergo imprisonment for not less than five days nor
more than six months;
(ii) pay a fine of not less than $300 nor more than $2,500
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than ten days nor more
than two years;
(ii) pay a fine of not less than $500 nor more than $5,000
Section 3804(c) provides:
(c) Incapacity; highest blood alcohol; controlled
substances.-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 fine of not less than $1,000 nor more than $5,000 . . .
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days nor more than
five years;
(ii) pay fine of not less than $1,500 . . .
(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 . .. (Emphasis added.)
Section 3806(b) provides that "the calculation of prior offenses for purposes of
sections. . . 3804 (relating to penalties) shall include any conviction. . . within the ten
years before the present violation occurred for any of the following: . . . (2) an offense
under former section 3731.6 Defendant was convicted of driving under the influence on
6 Subsection (b) of Section 3806 was clarified by Senate Bill 133, signed by the
governor on November 29, 2004, that added the words "section 3803 (relating to
grading)."
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February 23, 1999 for an offense that occurred on November 21, 1998. Therefore, any
conviction on the current charges will be a second offense for penalty purposes.
Having undertaken a test of his blood alcohol content, if he is now convicted of
violating Section 3802(c), the highest rate of alcohol, (.16% or higher), a misdemeanor
in the first degree, it will carry a mandatory minimum term of imprisonment of ninety
days and the
maximum of five years. 75 PaC.S. S 3804(c)(2). If he is convicted of violating only
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Section 3802(a)(1), general impairment, that is an ungraded misdemeanor that will
carry a mandatory minimum term of imprisonment of five days and a maximum of six
months. Section 3804(a)(2).
In a civil license suspension case, this court concluded in Garner v.
Commonwealth of Pa., Department of Trans., Bureau of Driver Licensing, 53
Cumberland L.J. 165 (2004), Hess, J., where the driver refused a test and because of a
prior DUI conviction faced a mandatory minimum term of imprisonment of ninety days,
that the warnings from DL-26 provided by an officer before the refusal did not comply
with Section 1547(b)(2)(ii). In reversing a license suspension based on Section
1547(b)(1), the Court stated:
Here, [defendant] was informed that he faced a minimum of seventy-two
hours in jail. In fact, he faced a minimum of ninety days in jail. The
information which was given to him was, plainly put, misleading.
Moreover, [defendant] was discouraged from seeking any clarification by
the admonition that if he did so, he would be deemed to have refused the
test.
In Commonwealth v. Jaggers, et aI., (224 Criminal 2004, Mercer County,
December 30,2004), Reed, J., the Court of Common Pleas of Mercer County, in a test
refusal case of a defendant with a prior conviction, concluded that the defendant must
be informed of all the penalties in subsection 3804(c), not just the minimum penalties.
The Court suppressed the test refusal in the criminal case because the warnings from
DL-26 "[o]nly provides the penalties set forth in subsection 3804(c)(1) and fails to
provide the penalties set forth in subsections 3804(c)(2) or (3)."
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Former Section 1547(b) set a civil sanction of a license suspension for refusing
to take the test, and the admission of the refusal into evidence at a criminal trial. The
new Section 1547(b) retains both. It also requires a warning of "the penalties provided
in Section 3804(c)" that have increased when a person is convicted of violating
Section 3802(a)(1) has refused to take a test. Section 3802(a)(1) makes it illegal to
operate a motor vehicle "after imbibing a sufficient amount of alcohol such that the
individual is rendered incapable of safely driving." That is the section that must be
changed when, because of a refusal, there is no test of blood alcohol content. If there
has been a test and a person's blood alcohol content within two hours of driving is at
least 0.08%, then depending on how high the blood alcohol content is, a person may
be prosecuted under Section 3802(a)(2), (b) or (c). In the case sub judice, defendant
took the breath test of his blood alcohol content. Any suppression remedy that may be
applicable for a failure to give a required warning under Section 1547(b)(2)(ii) when
there is a refusal to take a test that results in a prosecution for violating Section
3802(a)(1), does not apply when a test is taken. Defendant argues that the warning
given to him by Officer Ressler that upon conviction of driving under the influence he
would 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," when in fact he could be subject to a minimum sentence of more than seventy-
two hours in jail and a fine greater than $1,000, resulted in him making an unknowing,
unintelligent and coerced consent to take the test. That is illogical. If he has been
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advised that there were more severe penalties for refusal to take a test, it would have
been even more likely that he would have consented. Accordingly, we will deny the
motion to suppress the results of the breath test.
III. MOTION TO STRIKE/DISMISS REFERENCE IN THE INFORMATION TO
COUNT "1" AND COUNT "2" OF ~ 3802.
This court addressed this issue and rejected in it Commonwealth v. Altice,
(CP-21-CR-1717 -2004, December 28, 2004). A copy of Altice is attached hereto and
incorporated herein in support of a denial of the relief requested.
IV. 1. MOTION TO DISMISS AND/OR SUPPRESS DUE TO THE
UNCONSTITUTIONALITY OF ~ 3802.
2. ACT 24 OF 2003, CHAPTER 38, ~ 3802 AND ITS RELATED PROVISIONS
VIOLATES PROCEDURAL DUE PROCESS UNDER ARTICLE I, ~ 9 OF THE PA.
CONSTITUTION AND THE 5TH AND 14TH AMENDMENTS OF THE U.S.
CONSTITUTION FACIALLY AND AS APPLIED TO THE DEFENDANT.
3. CHAPTER 38 OF ACT 24 OF 2003, ~ 3802 AND ITS RELATED
PROVISIONS VIOLATES EQUAL PROTECTION GUARANTEED BY THE STATE
AND FEDERAL CONSTITUTIONS, FACIALLY AND AS APPLIED TO THE
DEFENDANT, IN THAT IT TREATS SIMILARLY SITUATED PERSONS
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DIFFERENTLY AND SUCH DIFFERENT TREATMENT IS NOT RATIONALLY
RELATED TO THE PROTECTION FROM INTOXICATED DRIVERS.
4. DEFENDANT WAS ADVISED THAT THERE WAS NO RIGHT TO AN
ATTORNEY AT THE TIME OF A REQUEST FOR THE CHEMICAL TEST WHICH
VIOLATES HIS 6TH AMENDMENT (U.S. CONSTITUTION) AND ARTICLE I, ~ 9 (PA.
CONSTITUTION) RIGHT TO COUNSEL, FACIALLY AND AS APPLIED TO HIM.
The issues raised in the above four claims were rejected by this court in
Commonwealth v. Neufeld, _ Cumberland L.J. _ (CP-21-CR-1393, January 19,
2005). The analysis in that case which is attached hereto and incorporated herein is
made a part of this opinion.
V. ACT 24 OF 2003 VIOLATES THE CONSTITUTIONAL AND DUE PROCESS
PROTECTIONS AGAINST EX POST FACTO LAWS IN VIOLATION OF U.S.
CONSTITUTION, ARTICLE I, ~ 10 AND PA. CONSTITUTION, ARTICLE I, ~ 17,
FACIALLY AND AS APPLIED TO THE DEFENDANT AND IMPROPERLY PROVIDES
FOR AN IMPERMISSIBLE RETROACTIVE APPLICATION.
Defendant is charged with driving under the influence on August 26, 2004. The
new driving under the influence law at 75 PaC.S. Sections 3801-3817 went into effect
on February 1,2004. For the reasons set forth in Commonwealth v. Neufeld, supra,
attached hereto and incorporated herein, this ex post facto claim is without merit.
VI. ACT 24 OF 2003 VIOLATES THE DEFENDANT'S RIGHT TO A TRIAL BY
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JURY.
As set forth in the information, defendant is charged with "Driving Under the
Influence - Highest Rate of Alcohol (.16+), 2nd Overall, 2nd Mandatory," a misdemeanor
of the first degree under Section 3804(c)(2) of the Vehicle Code. The maximum
penalty for a misdemeanor of the first degree is five years imprisonment. 18 Pa. C. S.
Section 1104(1). There is a right to a jury trial because the maximum penalty is more
than six months, Blanton v. City of North Las Vegas, Nevada, 489 U.S. 538, 109
S.Ct. 1289,203 L.Ed.2d 550 (1989). As this court said in Commonwealth v. Altice,
supra, notwithstanding how the information is worded defendant can only be convicted
of one count of violating Section 3802 of the Vehicle Code even if there is an
alternative basis for convicting him. The alternative basis set forth in the information is
"Driving Under the Influence, General Impairment, 2nd Overall, 2nd Mandatory," an
ungraded misdemeanor under Section 3804(a)(2) of the Vehicle Code. While a
violation of this Section is an ungraded misdemeanor carrying a maximum penalty of
six months imprisonment under Section 3804(a)(2) of the Vehicle Code, it is still for a
jury to determine whether defendant is guilty of violating Section 3804(c)(2) of the
Vehicle Code or the lesser included offense of Section 3804(a)(2).
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this day of March, 2005, the motion of defendant for
omnibus pretrial relief, IS DENIED.
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Geoffrey Mcinroy, Esquire
Assistant District Attorney
John Mancke, Esquire
F or Defendant
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By the Court,
Edgar B. Bayley, J.
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
ANTHONY JOHN LUCAS
CP-21-CR-2766-2004
IN RE: OMNIBUS PRETRIAL MOTION FOR RELIEF
ORDER OF COURT
AND NOW, this
day of March, 2005, the motion of defendant for
omnibus pretrial relief, IS DENIED.
By the Court,
Edgar B. Bayley, J.
Geoffrey Mcinroy, Esquire
Assistant District Attorney
John Mancke, Esquire
F or Defendant
:sal