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HomeMy WebLinkAboutCP-21-CR-2476-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-2476-2004 DOLORES O'BRIEN IN RE: OPINION IN SUPPORT OF ORDER The defendant in this case has appealed from her conviction and sentence on a count of driving under the influence. In her statement of matters complained of on appeal, she alleges that the undersigned judge erred in not granting her motion to suppress evidence. Our order denying her motion was entered on February 11,2005. The defendant was found guilty at a nonjury trial held before the Honorable Edgar B. Bayley on March 22,2005. She was thereafter sentenced to a term of imprisonment of ninety days to twenty-three months. Judge Bayley permitted the defendant to remain on bail contingent on her effecting a direct appeal to the Superior Court. Her appeal was timely filed. This opinion is issued in support of our order of February 11, 2005, denying the defendant's omnibus pretrial motion. The incident giving rise to the charges in this case occurred on August 21,2004. At approximately 11:42 p.m., Officer Robert Ressler of the West Shore Regional Police Department was watching northbound and southbound traffic while sitting in a stationary location on Front and Ferry Streets in Wormleysburg. Officer Ressler observed defendant, Dolores O'Brien, driving southbound using both southbound lanes of travel. According to the officer, the defendant, at one point, swerved violently. (N. T. 6) Officer Ressler then observed the defendant traveling in the northbound turning lane, the opposite lane of traffic, for about eighty to one-hundred yards. (N. T. 6) Officer Ressler decided to stop the vehicle CP-21-CR-2476-2004 based on its traveling in the opposite lane of travel in violation of75 Pa.C.S.A. 3301. (N.T. 10) Upon pulling the vehicle to the side of the road, Officer Ressler noticed the indicia of intoxication including the odor of alcohol and bloodshot eyes. Officer Ressler concluded that the defendant was under the influence of alcohol. She was given field sobriety tests which she failed. (N.T. 5) The defendant was then taken to the booking center where Officer Ressler read the defendant the chemical warnings from the DL-26 form. (N. T. 11) Two breath samples were subsequently obtained which yielded a blood-alcohol measurement of .193. The defendant was previously arrested for DUI in June of 1997 in Dauphin County. This resulted in her entrance into ARD. The defendant has raised two issues: First, were there reasonable grounds for Officer Ressler to stop the defendant's vehicle; and second, does the method and process of obtaining breath test results in Pennsylvania violate the United States Constitution by denying access to counsel at the time she is requested to submit to a breath or blood test. Initially, the defendant seeks to suppress all evidence obtained by Officer Ressler after she was stopped, maintaining there is no basis to effect the proper traffic stop. In Com. v. Swanger, 307 A.2d 875 (Pa. 1973), the Supreme Court of Pennsylvania held that before a police officer may stop a vehicle to determine whether it is being operated in compliance with the Motor Vehicle Code, the officer must have probable cause based on specific facts, which indicate to him either the vehicle or the driver are in violation of the Code. Id at 879. Over the years considerable confusion arose in case law as to whether, in order to stop a vehicle for a traffic violation, a police officer must possess "probable cause to believe" or a "reasonable suspicion to believe" that a violation of the Vehicle Code had occurred. 2 CP-21-CR-2476-2004 In an effort to end the confusion surrounding this issue, the Pennsylvania Supreme Court recognized that the difference in the two phrases was merely semantic and concluded that police officers may stop a vehicle "whenever they have articulable and reasonable grounds to suspect that a violation of the Vehicle Code had occurred. Hamilton [Com. v. Hamilton, 673 A.2d 915 (Pa. 1996)] at 918 ... (citing Com. v. Whitmyer, 542 Pa. 545,668 A.2d 1113 (Pa. 1995); 75 Pa.C.S. Section 6308(b))." Com. v. Anderson, 753 A.2d 1289, 1292-1293 (Pa. Super. 2000). In this case, Officer Ressler had probable cause to believe that the defendant violated Section 3301 of the Vehicle Code which provides: a. General Rule - Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway. . . There are five enumerated exceptions under the statute; none of the five exceptions in the statute apply to the defendant in this case. The obvious intent of the legislature in requiring operators to drive upon the right half of the roadway as closely as possible to the right-hand edge or curb was to permit oncoming traffic to pass with safety and traffic approaching from behind to pass with safety and prevent the operator from becoming confronted with a sudden emergency. Com. v. Lewis, 52 D&C.2d 528, 530 (Warren Co. 1971). The evidence in this case indicates that the defendant was driving southbound and crossed the center line of traffic and proceeded in the opposite lane of travel for eighty to one hundred yards. Officer Ressler 3 CP-21-CR-2476-2004 certainly had articulable and reasonable grounds to suspect that a violation of the Motor Vehicle Code had occurred. Next, the defendant asserts that Pennsylvania's Implied Consent Law is an unconstitutional method of obtaining breath test results being violative of the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution dealing with self incrimination, and the Sixth Amendment to the United States Constitution dealing with the right to counsel. By its provisions, each person who operates a motor vehicle within the Commonwealth is deemed to have given his or her consent to the taking of a chemical test of their breath, blood, or urine upon the request of a police officer where the officer has reasonable grounds to believe the person to have been driving while under the influence of alcohol. 75 P.S. 1547. While the motorist has the option of actually refusing to submit to a chemical test, the Implied Consent Law mandates that a motorist who does so will have his or her operating privileges suspended for one year. Id The United States Supreme Court has made it clear that a defendant does not have a constitutional right to refuse a blood test. Com. v. Graham, 703 A.2d 510 (Pa.Super. 1997), citing 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. 384 U.S. at 765. 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 4 CP-21-CR-2476-2004 blood as physical evidence when it is material. Id at 763-764. The U S. 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 a 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 US. 582,604, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). Thus, it would appear that Pennsylvania's Implied Consent Law does not implicate any privilege against self-incrimination. Nonetheless, the defendant contends that the test results should be suppressed in this case because she consented to the test without first having been advised of the right to seek the advice of counsel before making that decision. The defendant maintains that the mandatory enhanced penalties for refusal to undertake a test after arrest convert the request for a chemical test into a critical stage under the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution, thus triggering a right to counsel. This same issues was decided against the defendant, by Judge Bayley, in Com. v. Jen L. Neufeld, C.P.-21-CR-1393-2004, 55 CLJ 96 (2005). We adopt Judge Bayley's holding and summarize it as follows. In Com. v. West, 536 A.2d 447 (Pa.Super. 1998), a defendant convicted of driving under the influence sought to suppress evidence of a test of his blood alcohol content, arguing that he should have been permitted to speak to an attorney before deciding 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 US. Supreme Court in United States v. Wade, 388 US. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and have held that submission to a 5 CP-21-CR-2476-2004 breathalyzer test is not a critical stage of a criminal proceeding and, thus, no constitutional right to counsel attaches thereto. The court, in West, reiterated the general principle that the right to counsel attaches at all critical stages of a criminal proceeding. The court then, citing Wade, defined a "critical stage" of a prosecution 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." West, supra, at 449. The court, West, then went on to note: 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 US. 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. 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). 6 CP-21-CR-2476-2004 Id at 450. In sum, 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 a charge of driving while under the influence of alcohol. Thus, the right to counsel is not implicated when the defendant is asked to take the test. June , 2005 Kevin A. Hess, 1. Jaime Keating, Esquire Chief Deputy District Attorney Timothy L. Clawges, Esquire F or the Defendant :r1m 7