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HomeMy WebLinkAboutCP-21-CR-2761-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRIAN DAVID SEMUTA CP-21-CR-2761-2004 IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., June 6, 2005:-- Defendant, Brian David Semuta, is charged with driving under the influence by either general impairment,1 andlor highest rate.2 Defendant seeks to suppress all evidence obtained by the police after the arrest. We find the following facts. On October 15,2004, at 11 :55 p.m., Patrolman Douglas Foltz of the Lower Allen Township Police Department was operating a marked patrol car on Letchworth Avenue in Lower Allen Township. He saw a car coming toward him with a pick-up truck behind it. The headlights of the pick-up truck were not on. Officer Foltz blinked the headlights on his patrol car, but the pick-up truck passed him without the headlights coming on. The officer turned around, caught up to the pick- up truck, and turned on the red lights of his patrol car. The pick-up truck proceeded for 175 Pa.C.S. S 3802(a)(1). 275 Pa.C.S. S 3802(b). CP-21-CR-2761-2004 a short distance and stopped at 11 :59 p.m.3 Defendant was the driver and there was a passenger in the front seat. Officer Foltz told defendant he stopped him for driving without headlights. Defendant told the officer he had just pulled out from a house and had forgotten to turn on the headlights. When Officer Foltz had seen defendant driving without headlights, defendant was about ten houses away from the house that he said he had just left. Defendant's face was flushed and his eyes were glassy. Officer Foltz smelled alcohol. He asked defendant if he had been drinking. Defendant said he had two drinks at Gullifty's, which is a nearby restaurant/club. Officer Foltz had defendant get out of the car. He smelled alcohol coming from his person. Defendant performed a walk-and-turn test and a one-leg stand test. During the walk-and-turn test he started too soon and his turn was incorrect. During the one-leg stand test he put his arms up and lost his balance on one occasion. At the request of Officer Foltz, defendant took a portable breath test which registered .13%. Based on his opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving, Officer Foltz arrested him for driving under the influence. He took him to a booking center where they arrived at 12:29 a.m. on October 16. While at the center, defendant took a breath test on an Intoxilyzer 5000. DISCUSSION The Vehicle Code provides at 75 Pa.C.S. Section 1547(k): 3 Officer Foltz turned on his red lights while in Lower Allen Township. The pick-up truck stopped in the Borough of Lemoyne which is within the police jurisdiction of the West -2- CP-21-CR-2761-2004 A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. (Emphasis added) When Officer Foltz asked defendant to submit to a preliminary breath test, he knew that: (1) defendant had been driving a pick-up truck on a road at midnight without headlights; (2) defendant's face was flushed and his eyes were glassy; (3) the smell of alcohol was coming from defendant; (4) defendant had admitted that he had been drinking at a restaurant/club; (5) defendant started too soon and his turn was incorrect during a walk-and-turn test; and (6) defendant put his arms up and lost his balance on one occasion during a one-leg stand test. These facts constituted reasonable suspicion by Officer Foltz to believe that defendant had been driving his pick-up truck while under the influence of alcohol. After defendant took the preliminary breath test, the officer saw that it registered .13%. The Superior Court of Pennsylvania has stated that while a preliminary breath test is not admissible at trial, it does serve "[a]s an aid to police in determining probable cause for arrest." Commonwealth v. Myrtetus, 397 Pa. Super. 299 (1990). The test for probable cause is whether the facts and circumstances of a particular situation would warrant a person of reasonable caution to believe that a crime has been or is being committed. Commonwealth v. Young, 222 Pa. Super. 355 (1972). Based on all of the information known to Officer Foltz when he arrested Shore Regional Police Department. -3- CP-21-CR-2761-2004 defendant for driving under the influence, we are satisfied he had probable cause to make that arrest. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2005, the motion of defendant to suppress evidence, IS DENIED. By the Court, Edgar B. Bayley, J. John Dailey, Esquire For the Commonwealth Marlin Markley, Esquire F or Defendant :sal -4- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRIAN DAVID SEMUTA CP-21-CR-2761-2004 IN RE: MOTION TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this day of June, 2005, the motion of defendant to suppress evidence, IS DENIED. By the Court, Edgar B. Bayley, J. John Dailey, Esquire For the Commonwealth Marlin Markley, Esquire F or Defendant :sal