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HomeMy WebLinkAbout99-1063 criminalCOMMONWEALTH CHRISTOPHER PATRICK MURRAY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA · 99-1063 CRIMINAL TERM IN RE: OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., October 18, 1999:-- Defendant is charged with a count of driving under the influence,' operating a vehicle with a suspended registration? driving under suspension? and operating a vehicle without financial responsibility? He filed an omnibus pretrial motion for relief upon which a hearing was conducted on October 11, 1999. We find the following facts. At 1:20 a.m. on October 31, 1998, Lower Allen Township Police Officer Curt Heckler was dispatched to an area along Spangler Mill Road in Lower Allen Township. Upon arrival Officer Heckler saw a pick-up truck was in a field off the road. Defendant ' 75 Pa.C.S. § 3731(a)(1), (2) and (3). 2 75 Pa.C.S. § 1371. 3 75 Pa.C.S. § 1543(a). "75 Pa.C.S. § 1786(0. 99-1063 CRIMINAL TERM told Officer Heckler that the truck was his and he had driven it into the field after running out of gas. He said that he was going to siphon some gasoline into the truck from a field machine. Defendant told Officer Heckler that he had been driving to a Halloween party when he ran out of gas. His face was painted like a "tiger." He was disheveled, his speech was slurred, and he had a strong odor of alcohol on his breath. Defendant told the officer that he had bought a six-pack of beer, consumed one and was consuming another when he ran out of gas. He said that he had nothing to drink after he ran out of gas. Officer Heckler saw a twelve-pack of beer inside the pick-up truck. There were eight full cans of beer in the pack and one opened can inside the truck. The officer performed field sobriety tests which defendant failed. He also conducted a portable noncertified breath test on defendant that registered .04. Given defendant's condition the officer was suspicious that defendant had not blown enough air into the unit to register a valid result. Officer Heckler was of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving, and at 1:48 a.m., he arrested him for driving under the influence of alcohol. He transported defendant to a booking center and upon arrival had defendant empty his pockets. In one pocket there was a spoon and a baggie with a substance in it that the officer thought might be cocaine? Believing that defendant might be under the influence of both alcohol and a The officer later learned that the substance was not a controlled substance. -2- 99-1063 CRIMINAL TERM controlled substance, Officer Heckler took him to the Harrisburg Hospital where he filled out the following written "Police Request:" I, Officer Curt A. Heckler, hereby certify that I have reasonable grounds to believe that Christopher P. Murray has been driving under the influence of alcohol and/or controlled substance(s), and I hereby request that a chemical test(s) be performed by or under the supervision of the Laboratory Medical Director to determine that: CHECK ONE ONLY: A. Alcohol Content in Blood (WHOLE BLOOD SPECIMEN) B. Controlled Substance in Urine (URINE SPECIMEN REQUIRED) C. Both Alcohol Content and Controlled Substance Officer Heckler checked item C. Based on that request the hospital drew blood to test for alcohol and obtained a urine sample to test for controlled substances.6 Officer Heckler then took defendant back to the booking center where he was processed. With a video and audio camera rolling, a booking agent, Stephanie Gross, advised defendant as follows: MS. GROSS: Chris, I am going to read your Miranda warning and your audio visual warning. Okay? THE DEFENDANT: Urn-hum. (EYES CLOSED) MS. GROSS: Wake up there, bud. You have to pay attention to me. Okay? THE DEFENDANT: (NODDED/EYES CLOSED/NO AUDIBLE RESPONSE) MS. GROSS: Are you all right? THE DEFENDANT: (NODDED/EYES CLOSED) MS. GROSS: You are charged with driving under the influence. You have the right to remain silent. Anything you say can and 6 The blood and urine were obtained by consent from defendant after Officer Heckler advised him of the provisions of the Implied Consent Law. -3- 99-1063 CRIMINAL TERM will be used against you in a court of law. Do you understand me? THE DEFENDANT: (NO AUDIBLE RESPONSE) MS. GROSS: Are you listening? THE DEFENDANT: (NODDED) MS. GROSS: Okay. YOu have a right to talk to an attorney before and have an attorney present with you during questioning. Wake up, Chris. Chris, just pay attention to me. Okay. Keep your eyes open. Okay? THE DEFENDANT: (SHRUGGED SHOULDERS) MS. GROSS: Okay? THE DEFENDANT: I am going to. MS. GROSS: Chris, wake up. Try to keep your eyes open. O',<~,y? THE DEFENDANT: (NO AUDIBLE RESPONSE) MS. GROSS: Are you all right? THE DEFENDANT: Why am I - (!NAUDIBLE) MS. GROSS: I don't know. Are you going to listen to me? THE DEFENDANT: Yes. (EYES CLOSED/HEAD DOWN) MS. GROSS: Okay. We are going to start over. You are charged with driving under the influence. Wake up. You have the right to remain silent. Anything you say can and will be used against you in a court of law. Do you understand that? THE DEFENDANT: Yes. MS. GROSS: Okay. You have the right to talk to an attorney before and have an attorney present with you during questioning if you so desire. Do you understand, Chris? THE DEFENDANT: Um-hum. (EYES CLOSED) MS. GROSS: Okay. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before questioning if you so desire. Are you listening to me? THE DEFENDANT: Urn-hum. (EYES CLOSED) MS. GROSS: THE DEFENDANT: MS. GROSS: THE DEFENDANT: MS. GROSS: Did you hear what I just said? Um-huh. (EYES CLOSED) Are you sure? Uh-hum. (EYES CLOSED) Okay. If you do decide to answer any questions, you may stop at any time you wish. Do you understand what I just said? THE DEFENDANT: (NO AUDIBLE RESPONSE EYES CLOSED/HEAD DOWN) MS. GROSS: Chris, do you understand me? -4- 99-1063 CRIMINAL TERM THE DEFENDANT: MS. GROSS: THE DEFENDANT: MS. GROSS: THE DEFENDANT: MS. GROSS: Okay? THE DEFENDANT: MS. GROSS: Uh-huh. (EYES C. LOSED) Okay. As I said - Chris, sit up. (GRUNTED and COMPLIED) Don't put your head down. I'm tired. I understand that but I need you to stay awake. (NO AUDIBLE RESPONSE) Chris. All right. Like I said, if you do decide to answer any questions, you may stop at any time you wish. Do you understand me? THE DEFENDANT: Uh-huh. (EYES CLOSED/HEAD DOWN) MS. GROSS: All right. I need you to sign this piece of paper. If you understand your rights, you circle yes or no - THE DEFENDANT: Um-hum. (EYES CLOSED) MS. GROSS: -- all depending on what you feel. Now, I want you to put your initials there at the X. THE DEFENDANT: (LOOKING FOR "X") MS. GROSS: Look. I need you to circle your answer right there, either yes or no. Do you understand your rights? THE DEFENDANT: Uh-huh. (SQUINTING) MS. GROSS: Okay. Do you see that, yes, right there? Do you see that? THE DEFENDANT: No, I can't see that. MS. GROSS: Okay. Do you see that right there? THE DEFENDANT: What's my level? MS. GROSS: I have no idea. I need you to circle either yes or no to whether you understand your rights. Do you see? THE DEFENDANT: (SQUINTING, RUBBING EYES TO FOCUS) there, MS. GROSS: please. Do you see THE DEFENDANT: MS. GROSS: THE DEFENDANT: MS. GROSS: (COMPLIED) Okay. I need you to put your initials right the X? Um-hum. (FOCUSING/ONE EYE SHUT) I need you to put your initials there. (COMPLIED) That will work. The space under the five written Miranda warnings on the form contained the statement "DO YOU UNDERSTAND THE RIGHTS WHICH YOU HAVE JUST READ? -5- 99-1063 CRIMINAL TERM (YES/NO) RESPONSE REQUIRED? Defendant circled "No" with the circle intersecting between the "e" and the "s" in the word yes. The form did not contain a specific waiver of Miranda rights nor did Agent Gross ever asked defendant if he was willing to waive his Miranda rights. Agent Gross then ask defendant 56 questions. As she asked these questions she had to continually keep "tapping" defendant to keep him awake. Defendant answered the questions although on several questions he said he did not know the answer. I. MOTION TO SUPPRESS STATEMENTS AT SCENE Defendant maintains that the statements he made to Officer Heckler at the scene of his arrest should be suppressed because he was detained during that period and not free to leave. These were noncustodial statements. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L. Ed.2d 317 (1984), the United States Supreme Court held that a motorist was not in custody when he is stopped by a police officer and asked a number of questions and is requested to perform field sobriety tests. In accord, Commonwealth v. Toanone, 381 Pa. Super. 336 (1989). Accordingly, the statements made by defendant to Officer Heckler at the scene prior to his arrest for driving under the influence are not suppressible. II, MOTION TO SUPPRESS IN CUSTODY STATEMENTS Defendant maintains that his response to all questions asked by Agent Gross when he was in custody should be suppressed because he did not make a knowing, Miranda v. Arizona, 384 U.S. 436, 86 $.Ct. 1602, 16 L. Ed.2d 694 (1966). -6- 99-1063 CRIMINAL TERM voluntary and intelligent waiver of his rights under Miranda v. Arizona, supra. Applying Commonwealth v. Bussey, 486 Pa. 221 (1979), and Commonwealth v. Speaks, 351 Pa. Super. 149 (1986), we agree with defendant that his answers to all questions asked by the booking agent must be suppressed. Not only was he not asked to waive his Miranda rights, nor did he waive such rights, when he was asked, "Do you understand the rights which you have just read," he circled "No." Furthermore, from our viewing and listening to the tape it is obvious that defendant was falling asleep during the administration of the Miranda rights, he was not faking, he was disoriented and he was not responding coherently and intelligently to the questions asked. Defendant's subsequent stumbling through the fifty-six questions asked by Agent Gross while continually falling asleep did not constitute a knowing, voluntary, intelligent waiver of his Miranda rights. See Commonwealth v. Grimes, (94-0775 Criminal Term, slip opinion filed November 9, 1994). Accordingly, all of defendant's responses to Agent Gross's questions will be suppressed. III. MOTION TO SUPPRESS BLOOD TEST AND URINE TEST Defendant maintains that the results of both the blood and urine test must be suppressed because there was no legal basis to perform two tests, one to obtain his blood to test for alcohol and another to obtain his urine to test for controlled substances. Section 1547(a) of the Vehicle Code provides: (a) General Rule.--Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more -7- 99-1063 CRIMINAL TERM chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood .... In Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Commw. 303 (1988), the Commonwealth Court of Pennsylvania interpreted this section as follows: [A] police officer with reasonable grounds to believe a licensee was operating a vehicle while under the influence initially has unfettered discretion under Section 1547(a) to request the licensee to submit to one of the following types of chemical tests: breath, blood, or urine. Once the police officer selects the type of test to be administered, however, his or her discretion is curbed. If a breath test is chosen, the police officer must administer it twice. If a blood or urine test is chosen, it may only be administered once unless the police officer establishes a reasonable ground for requesting a second test. (Footnote omitted.) The terms "reasonable grounds" and "probable cause" are used interchangeably. Commonwealth v. Cieri, 346 Pa. Super. 77 (1985). Probable cause exists where the officer had knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver had been driving under the influence of alcohol or a controlled substance. Commonwealth v. Smith, 382 Pa. Super. 288 (1989). Based on defendant's overt signs of intoxication, his statements to the officer as to his having been drinking alcohol, and his failing the field sobriety tests, there were reasonable grounds for Officer Heckler to believe that he had been operating a motor vehicle under the influence of alcohol. In Millili v. Commonwealth of Pennsylvania, Department of Transportation, 727 A.2d 120 (Pa. 1999), the Supreme Court of Pennsylvania, reversing the Commonwealth Court, held that "All drivers licensed in Pennsylvania -8- 99-1063 CRIMINAL TERM impliedly consent to submit to at least one chemical test if arrested for driving under the influence of alcohol." Thus, the result of the alcohol test performed on defendant's blood is not suppressible. In Commonwealth of Pennsylvania, Department of Transportation v. Patton, 159 Pa. Commw. 351 (1993), the defendant appealed from an order of a trial court that dismissed his appeal from a one-year suspension of his operating privilege imposed by the Department of Transportation. The facts were: Patton was stopped by Officer William Hindman of the Mt. Lebanon police on May 10, 1992. After placing Patton under arrest for driving while under the influence of alcohol and/or controlled substances in violation of 75 Pa.C.S. § 3731, Hindman searched Patton's car and found, inter alia, a pipe containing what the officer believed to be marijuana. Hindman took Patton to St. Clair Hospital and asked him to submit to a blood test. The officer informed Patton of the consequences of refusal and Patton permitted blood to be drawn. Hindman then asked Patton to submit to a urine test because the Allegheny Toxicology Lab allegedly had informed the police that the urine test was more effective in determining the presence of controlled substances. Hindman again informed Patton of the consequences of a refusal. Patton agreed to provide a urine sample and was taken to a bathroom. According to Hindman's testimony, Patton failed to provide a urine sample after spending fifteen to twenty minutes in the bathroom. Hindman took this as a refusal. Patton testified in his own behalf and stated that he told Hindman that he was unable to urinate on demand. Patton also introduced a document from the hospital which indicated that he was taken to the bathroom at 0022 hours and released from the hospital to Hindman's custody at 0026 hours. The Commonwealth Court reversed the suspension of defendant's operating privilege for failure to consent to a urine test. Citing Blair v. Commonwealth of Pennsylvania, 115 Pa. Commw. 293 (1988), and assuming arguendo that the officer -9- 99-1063 CRIMINAL TERM had reasonable cause to believe that defendant was operating his vehicle under the influence of a controlled substance merely on the presence of a piece of drug paraphernalia, the Commonwealth Court concluded that there was no competent medical evidence to support the taking of a urine test following a blood test as necessary to detect any controlled substances in defendant's blood. In the present case, defendant having a spoon and a baggie on his person with a substance that the officer thought might be cocaine, his being very sleepy, and the Iow reading on the portable noncertified breath test, coupled with the his overt signs of intoxication, gave the officer reasonable grounds to believe that he may be under the influence of both alcohol and drugs. Having set forth that contention on the Police Request form to the personnel at the Harrisburg Hospital, the hospital personnel deemed it necessary to perform tests on both defendant's blood and his urine to which defendant consented. That medical decision warranted the taking of both tests. Therefore, the result of the urine test is not suppressible. For the foregoing reasons, the following order is entered, ORDER OF COURT AND NOW, this ____~ ~"' day of October, 1999, IT IS ORDERED: (1) The motion of defendant to suppress all statements he made to Officer Curt Heckler before he was arrested for driving under the influence, IS DENIED. (2) The motion of defendant to suppress all statement he made to law enforcement personnel after his arrest and based on his not voluntarily, knowingly and -10- 99-1063 CRIMINAL TERM intelligently waiving his Miranda rights, IS GRANTED. (3) The motion of defendant to suppress the result of his blood test, IS DENIED. (4) The motion of defendant to suppress the result of his urine test, IS DENIED. By the Edgar B. Bayley, O. Mary-Jo Mullen Esquire For the Commonwealth William Braught, Esquire For Defendant :saa -11-