HomeMy WebLinkAbout93-1466 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 1466 CRIMINAL 1993
v. : CHARGES:(A) DUI
: (B) DUS
: (C) REQUIRED FINANCIAL
JAMES IRVIN BREHM, JR. : RESPONSIBILITY
OTN: E367235-1 :
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this (~day of August, 1994, upon consideration of
Defendant's Omnibus Pretrial Motion, and for the reasons stated in
the accompanying Opinion, the Motion is DENIED.
BY THE COURT,
JUWes±ey Oler~r., j. ~'
Jaime Keating, Esq.
Assistant District Attorney
Timothy L. Clawges, Esq.
Assistant Public Defender
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 1466 CRIMINAL 1993
v. : CHARGES: (A) DUI
: (B) DUS
: (C) REQUIRED FINANCIAL
JAMES IRVIN BREHM, JR. : RESPONSIBILITY
OTN: E367235-1 :
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J.
This case presents the issue of whether, in a prosecution for
driving under the influence, the Commonwealth may include on the
information a charge of violation of Section 3731(a)(5) of the
Vehicle Code, where the criminal complaint alleged violations of
Sections 3731(a)(1) and 3731(a)(4) of the Code only and where only
those charges were bound over for court. For the reasons stated in
this Opinion, the Court holds that the Commonwealth may include the
charge on the information.
Statement of Facts
In accordance with a stipulation of counsel, the facts
necessary for resolution of this issue are as follows:
On June 21, 1993, a criminal complaint
was filed in which the Defendant was charged
with violating 75 Pa. C.S.A. ~3731(a)(1) and
(a)(4) as well as summary offenses. On
September 1, 1993, a preliminary hearing was
held, and the prima facie case was found on 75
Pa. C.S.A. §3731(a)(1) and (a)(4).
Defendant was not charged with violating
§3731(a)(5) in the criminal complaint, nor was
a violation of that subsection at issue during
the preliminary hearing. On February 25,
1994, an information was filed by the
Commonwealth charging Defendant with violating
1466 CRIMINAL 1993
75 Pa. C.S.A. ~3731(a)(1), (a)(4) and (a)(5).
Defendant was formally arraigned on the
above charges on February 28, 1994. On March
30, 1994, Defendant filed an omnibus pre-trial
motion requesting the Court to dismiss, or
[sic] the charge of violating 75 Pa. C.S.A.
~3731(a)(5) or quash that portion of the
information charging Defendant with violating
75 Pa. C.S.A. §3731(a)(5) or remand said case
for a preliminary hearing regarding violation
of that subsection.
Stipulation of Facts, August 5, 1994; see Order of Court, August 9,
1994 (acceptance of stipulation in lieu of hearing).
Statement of Law
Section 3731 of the Vehicle Code provides, in pertinent part,
as follows:
(a) Offense defined. - A person shall not
drive, operate or be in actual physical
control of the movement of any vehicle:
(1) while under the influence
of alcohol to a degree which renders
the person incapable of safe
driving; ...
(4) while the amount of alcohol
by weight in the blood of the person
is 0.10% or greater; or
(5) if the amount of alcohol by
weight in the blood of the person is
0.10% or greater at the time of a
chemical test of a sample of the
person's breath, blood or urine,
which sample is:
(i) obtained within
three hours after the
person drove, operated or
was in actual physical
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1466 CRIMINAL 1993
control of the vehicle;
or
(ii) if the
circumstances of the
incident prevent
collecting the sample
within three hours,
obtained within a
reasonable additional
time after the person
drove, operated or was in
actual physical control
of the vehicle.
(a.1) Defense. - It shall be a defense to
a prosecution under subsection (a) (5) if the
person proves by a preponderance of evidence
that the person consumed alcohol after the
last instance in which he drove, operated or
was in actual physical control of the vehicle
and that the amount of alcohol by weight in
this blood would not have exceeded 0.10% at
the time of the test but for such consumption.
Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.
~3731(a), (a.1) (1994 Supp.).
In Commonwealth v. Slingerland, 358 Pa. Super. 531, 518 A.2d
266 ( 1986 ) , the Pennsylvania Superior Court held that the
Commonwealth may, in a prosecution for driving under the influence,
include on the information a charge of violation of Section
3731(a) (4) of the Vehicle Code, where the criminal complaint
alleged violation of Section 3731(a)(1) of the Code only and where
only that charge had been bound over for Court. The rationale of
the decision was that the two forms of driving under the influence
are cognate offenses. Id. at 534-35, 518 A.2d at 268.
The meaning of "cognate" in this context was discussed by the
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1466 CRIMINAL 1993
Slingerland Court in the following terms:
The word "cognate" is defined in
Webster's Third New International Dictionary
(1965) as "related, akin or similar esp. in
having the same or common or similar nature,
elements, qualities or origin .... " Applying
this common usage of the word, it would seem
that the two subsections of 75 Pa. C.S.
~3731(a) define cognate offenses. Even though
the elements of the offenses defined in
subsections (a)(1) and (a) (4) are not
identical, the offenses are similar in nature
and spring from a common concern. The
substantive nature of the offenses is clearly
the same, namely the operation of a vehicle
after alcohol has been consumed to a degree
which renders the operator a hazard to others
and to himself or herself. Subsection (a)(4)
presumes that an operator with a blood alcohol
content of 0.10% or greater is unfit to drive,
see: Commonwealth v. Mikulan, 504 Pa. 244,
249-251, 470 A.2d 1339, 1341-1342 (1983);
whereas subsection (a)(1) requires proof that
the defendant was, in fact, incapable of safe
driving because of an excessive consumption of
alcohol. Both subsections, therefore,
proscribe the same conduct: driving a motor
vehicle while under the influence of alcohol.~
In Commonwealth v. Hackworth, No. 1164 Criminal 1993
(Cumberland Co. November 3, 1993), the Honorable Harold E. Sheely
of this Court utilized the decision in Slingerland to dispose of
the issue herein - holding that an offense under Section 3731(a)(5)
of the Vehicle Code is cognate to the offenses under Sections
3731(a)(1) and 3731(a)(4), and that the Commonwealth may include a
charge under the former section on an information, notwithstanding
~ Commonwealth v. Slingerland, 358 Pa. Super. 531, 535, 518
A.2d 266, 268 (1986).
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1466 CRIMINAL 1993
that only charges under the latter sections were contained in the
complaint and bound over for court.2 In Hackworth, President Judge
Sheely wrote as follows:
At the preliminary hearing, the defendant was
charged with 75 Pa. C.S.A. ~3731(a)(1)(4) and
not (a)(5). After those charges were bound
over the Commonwealth added the (a)(5) charge.
Section 3731(a)(5) pertains to the relating a
person's BAC of .10% back to the time the
person is driving. It does not create [a]
separate offense or different elements. It
merely addresses the evidentiary issue of
relating the BAC back to the time of operating
the vehicle. If, under the reasoning of
Commonwealth v. Slingerland, 358 Pa. Super.
531, 518 A.2d 266 (1986), Section 3731(a)(1)
and (a)(4) are cognate offenses, Section
3731(a)(5) must be a cognate offense.3
"It is well-settled that, absent the most compelling
circumstances, a judge should follow the decision of a colleague on
the same court when based on the same set of facts." Yudacufski v.
Commonwealth, Department of Transportation, 499 Pa. 605, 612, 454
A.2d 923, 926 (1982).
2 The Court appreciates the reference to Commonwealth v.
Hackworth in Defendant's brief, as well as the Commonwealth's.
~ Commonwealth v. Hackworth, No. 1164 Criminal 1993
(Cumberland Co. November 3, 1993) (slip. op. at 6-7).
Although Defendant in the present case argues that Section
3731(a)(5) of the Vehicle Code differs significantly from Sections
3731(a)(1) and 3731(a)(4), in terms of the time pertinent to
commission of the offense and the explicit recognition in the
former case of a post-driving consumption defense, the gravamen of
all three forms of the offense - driving while under the influence
of alcohol - seems.basically the same to this Court. See Brief in
Support of Defendant's Omnibus Pre-trial Motion, at 3-5.
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1466 CRIMINAL 1993
Application of Law to Facts
An application of the foregoing legal principles and precedent
to the facts of the present case leads to a conclusion that the
Commonwealth permissibly included on the information a charge of
violation of Section 3731(a)(5) of the Vehicle Code,
notwithstanding that the complaint against Defendant charged
violations of Sections 3731(a)(1) and 3731(a)(4) only, and that
only the latter charges were bound over for court. For this
reason, the following Order will be entered:
ORDER OF COURT
AND NOW, this i~day of August, 1994, upon consideration of
Defendant's Omnibus Pretrial Motion, and for the reasons stated in
the accompanying Opinion, the Motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jaime Keating, Esq.
Assistant District Attorney
Timothy L. Clawges, Esq.
Assistant Public Defender
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