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HomeMy WebLinkAbout94-0323 Criminal COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. STEVEN G. GUMBERT, : Defendant : 94-0323 CRIMINAL TERM IN RE: DEFENDANT'S ORIGINAL and SUPPLEMENTAL OMNIBUS PRETRIAL MOTIONS BEFORE OLER, J. ORDER OF COURT NOW, this ~ day of September, 1994, after careful AND consideration of Defendant's Original and Supplemental Omnibus Pretrial Motions, for the reasons stated in the accompanying Opinion, the Motions are DENIED. BY THE COURT, J~ Wesle~ 51~, Jr. } J. Office of the District Attorney Patrick F. Lauer, Jr., Esq. 2108 Market Street Camp Hill, PA 17011 Attorney for Defendant :rc COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : STEVEN G. GUMBERT, : Defendant : 94-0323 CRIMINAL TERM IN RE: DEFENDANT'S ORIGINAL and SUPPLEMENTAL OMNIBUS PRETRIAL MOTIONS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This criminal case arises out of an incident in which Defendant allegedly drove a motor vehicle while under the influence of alcohol.~ Defendant filed an initial omnibus pretrial motion for relief based upon an alleged lack of probable cause on the part of the arresting officer, seeking both suppression of evidence and dismissal of the information.2 He filed a supplemental omnibus pretrial motion for relief, based upon alleged constitutional infirmities in the recently-enacted provision of the drunk driving statute premising culpability upon one's blood alcohol level in a sample obtained within a certain period of driving.3 A hearing was held on the motions on Wednesday, June 8, 1994, and briefs have been submitted by the Commonwealth and Defendant. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered. 1 See Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. §3731 (1994 Supp.). 2 Defendant's Omnibus Pre-trial Motion, filed May 17, 1994. 3 Defendant's Amended Motion: Motion To Dismiss 75 Pa. C.S.A. S3731(a)(5), filed May 24, 1994. 94-0323 CRIMINAL TERM FINDINGS OF FACT 1. Defendant and moving party herein is Steven G. Gumbert. 2. Defendant has been charged with driving under the influence pursuant to Sections 3731(a)(1), 3731(a)(4) and 3731(a)(5) of the Vehicle Code. 3. The charges against Defendant arose out of an incident occurring on or about Saturday, January 22, 1994, in Lower Allen Township, Cumberland County, Pennsylvania. 4. On that date, Lower Allen Township Patrol Officer Justin Spaulding was dispatched to 3300 Hartzdale Drive in the Township at about 3:00 o'clock in the afternoon as a result of a citizen's report of a drunk driver. The officer was in a marked patrol car and in uniform, was a veteran of fourteen years in law enforcement, four as an officer with Lower Allen, and had been involved in hundreds of alcohol-related incidents as a law enforcement officer. 5. Upon his arrival at the scene, Patrol Officer Spaulding found the Defendant in the driver's seat of his parked motor vehicle and interviewed the citizen who had called the police. 6. The citizen identified herself, gave her address, and told the officer that she had observed the Defendant driving erratically on the public street, had succeeded in getting him stopped and off the roadway, perceived that he was drunk, and had taken his car keys. 7. She reported to the officer that Defendant slumped over 2 94-0323 CRIMINAL TERM the steering wheel and smelled of an alcoholic beverage. 8. Patrol Officer Spaulding formed the conclusion that Defendant was in fact under the influence of alcohol to a degree which rendered him incapable of safe driving after interviewing the citizen and after noticing that Defendant had an odor of an alcoholic beverage on his breath, had difficulty conversing, had slurred speech, fumbled with his cards, and fell over twice onto the ground. 9. The officer did not administer field sobriety tests to Defendant because Defendant was unable to stand without assistance. 10. Patrol Officer Spaulding placed Defendant under arrest for driving under the influence and transported him to Holy Spirit Hospital, where a sample of Defendant's blood was taken. 11. A test of Defendant's blood showed a blood alcohol content level by weight of .29%. DISCUSSION Motion To Suppress or Dismiss Based upon Lack of Probable Cause Statement of law. With respect to an officer's right to detain and arrest an individual, the following rules are pertinent. "[A]n officer may stop and briefly detain and question an individual if the investigating officer can point to specific and articulable facts which reasonably warrant the belief that criminal activity is afoot. These brief investigatory stops are not considered to be arrests." 1 Wasserbly, Pennsylvania Criminal 3 94-0323 CRIMINAL TERM Practice ~6.01 (1991). "A policeman who lacks the requisite level of information for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Id. §6.02. Even in the absence of probable cause, an investigating police officer may stop and briefly detain an individual, as long as the officer can point to specific and articulable facts, which, in conjunction with the natural inferences derived from those facts, warrant the intrusion.4 "An investigative detention, of course, may ripen into an arrest based on probable cause when police uncover additional information confirming earlier suspicions." 1 Wasserbly, Pennsylvania Criminal Practice ~6.02 (1991); see, e.g., Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). Probable cause is "those facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). Information from a private citizen can, of course, constitute sufficient grounds for an investigatory stop of one suspected of 1 Wasserbly, Pennsylvania Criminal Practice S6.02(1991). Vehicle stops for suspected Vehicle Code violations are governed by the same principles. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. ~6308 (1994 Supp.); see Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993). 4 94-0323 CRIMINAL TERM drunk driving,s Third-party information can also be relevant to the issue of probable cause for an arrest.6 With respect to the remedy for an illegal detention or arrest, it is noted that "[a]s a general rule the effect of an illegal arrest is the exclusion of resultant evidence, as opposed to a direct discharge of the defendant. See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990)." Commonwealth v. Barndt, No. 94-0247 Criminal Term, at 8 (Cumberland Co., July 12, 1994). Application of law to facts. In the present case, the information received by the officer from an identified citizen represented specific and articulable facts warranting his approach and investigatory detention of Defendant in the foregoing circumstances. This information, in conjunction with the officer's detection of an alcoholic beverage on Defendant's breath and his observations of Defendant's conversational difficulties, slurred speech, fumbling, and inability to stand, sufficed to establish probable cause for Defendant's arrest. For these reasons, Defendant's motion to suppress evidence and dismiss the information based upon a lack of probable cause must be denied. 5 Commonwealth v. Janiak, 368 Pa. Super. 626, 534 A.2d 833 (1987); see Commonwealth v. Smith, 396 Pa. Super. 6, 577 A.2d 1387 (1990). 6 See Commonwealth v. Prengle, 293 Pa. Super. 64, 437 A.2d 992 (1981). 5 94-0323 CRIMINAL TERM Motion To Dismiss Charge under S3731(a)(5) of Vehicle Code on Constitutional Grounds Defendant presents a challenge to the constitutionality of Section 3731(a)(5) of the Vehicle Code7 in three respects. First, he contends that this subsection is unconstitutionally vague and therefore violates his due process rights because it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and encourages arbitrary and discriminatory enforcement.8 Second, Defendant maintains that Section 3731(a)(5) of the Vehicle Code is violative of due process because it does not bear a real and substantial relationship to accomplishment of the legislative goal of reducing driving under the influence.9 Third, Defendant contends that Section 3731(a)(5) creates an illegal presumption that a person is under the influence of alcohol while driving a vehicle if the prosecution proves that the person has a BAC of 0.10% or greater at any time during a certain period after the person has been in control of a vehicle - again in violation of the 7 Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. ~3731 (1994 Supp.). 8 Defendant's Amended Motion to Dismiss, paragraphs 15-16. 9 Defendant's Amended Motion to Dismiss, paragraph 17. 6 94-0323 CRIMINAL TERM due process clause.~° With regard to the last issue, Defendant appears to contend in his brief that, because the statute continues to denominate, in its heading, the offense as driving under the influence, an indispensable element of the crime to be proven by the Commonwealth is a person's being under the influence at the time of driving,n With regard to judicial review of statutes challenged as unconstitutional, our courts have held that there is a "strong presumption of constitutionality and [a] heavy burden of persuasion upon one who challenges the constitutionality of an Act of the General Assembly." Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983). Therefore, to be declared unconstitutional, the challenged legislation must "clearly, palpably, and plainly" violate the constitution. Id. The legislature amended Pennsylvania's driving under the influence (DUI) law in 1992 to include, in pertinent part, the following: (a) Offense defined.- A person shall not drive, ~0 Defendant's Amended Motion to Dismiss, paragraph 18. There is no suggestion in the present case that the sample of Defendant's blood at issue was taken more than three hours after his episode of driving. For this reason, the "certain period" which will be considered in this Opinion as prescribed by the statute will be the three-hour period specified in Section 3731(a)(5)(i) of the Vehicle Code. n See Defendant's Brief in Support of Defendant's Motion to Dismiss the Charge of 75 Pa. C.S.A. §3731(a)(5), at 30-31. 7 94-0323 CRIMINAL TERM operate or be in actual physical control of the movement of any vehicle: ... (5) if the amount of alcohol by weight in the blood of a 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 3 hours after the person drove, operated or was in actual physical 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. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. S3731(a)(5) (1994 Supp.). Our research has failed to uncover any appellate cases dealing with a constitutional challenge to Section 3731(a)(5) of the Vehicle Code. However, several of our sister states have enacted analogous provisions to their DUI laws which have survived constitutional scrutiny.~2 Defendant's initial contention is that Section 3731(a)(5) is unconstitutionally vague and therefore violative of his due process rights because it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and encourages arbitrary and discriminatory enforcement.~3 "As generally stated, the void-for-vagueness ~2 See N.Y. Vehicle and Traffic Law ~§1192 and 1194 (McKinney 1994 Supp); Ariz. Rev. Stat. Ann. ~29-692(A)(2) (19__); Minn. Stat. ~169.121(1)(e) (1984); N.D. Cent. Code §39-20-07(3) (1993 Supp.). 8 94-0323 CRIMINAL TERM doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolander v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983). "The [principal] aspect of the doctrine is the requirement that legislation establish minimal guidelines to govern law enforcement for, without such minimal guidelines, a criminal statute might permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Commonwealth v. Mikulan, 504 Pa. 244, 251, 470 A.2d 1339, 1342 (1983), quoting Kolander v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983). However, it has also been said that the root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. Commonwealth v. DeFrancesco, 481 Pa. 595, 608, 393 A.2d 321, 327 (1978), quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. 2d 584, 590 (1972). The Pennsylvania Supreme Court has further stated that ~3 See Defendant's Amended Motion to Dismiss, paragraphs 15, 16. 9 94-0323 CRIMINAL TERM a penal statute "must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction." However, statutes alleged to be vague are not "to be tested against paradigms of draftmanship. Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct." [Citations omitted.] Commonwealth v. Mikulan, 504 Pa. 244, 252, 470 A.2d 1339, 1343 (1983), quoting Commonwealth v. Heinbaugh, 467 Pa. 1, 5-6, 354 A.2d 244, 246 (1976). Statutes with provisions similar to those of Section 3731(a)(5) - i.e., provisions proscribing operation of a vehicle with a specified BAC as measured by a test within a designated time period following the operation of the vehicle - have been enacted in several states and, upon challenge on the basis of being unconstitutionally vague, have been upheld. In State v. Martin, 847 P.2d 619 (Ariz. Ct. App. 1992), the defendant challenged Ariz. Rev. Stat. Ann. ~28-692(A)(2), proscribing operation of a vehicle with a blood alcohol concentration of 0.10 or more as measured by a test within two hours of driving, on the ground, inter alia, that it was unconstitutionally vague. The Arizona Court, in upholding the statute against the constitutional challenge, held that "[b]y establishing a specific, objective criterion of a predefined BAC with which to compare an individual's BAC, the statute provides notice of the prohibited conduct with sufficient particularity." State v. Martin, 847 P.2d 619, 623 (Ariz. Ct. App. 1992). 10 94-0323 CRIMINAL TERM Moreover, according to the court, "the phrase 'within two hours of driving or being in actual physical control of the vehicle' provides specific and objective guidelines to the potential offender and to those charged with enforcing the law." Id., quoting Cacavas v. Bauer, 168 Ariz. 114, 116, 811 P.2d 366, 368 (Ariz. Ct. app. 1991). The Court continued: The principal difference between the former section 28-692(A)(2) and the present section is that the legislature has "concluded that a person with a BAC of 0.10 or greater within the two hour period poses a sufficient danger to the public to justify broadening the statutorily proscribed conduct." Neither the time frame imposed nor the requirement of driving or being in actual physical control defy common understanding. The statute gives fair notice to a driver who has been drinking that blood alcohol testing may take place over a two-hour period and that a BAC of 0.10 within that time violates section 28- 692(A)(2). State v. Martin, 847 P.2d 619, 623 (Ariz. Ct. App. 1992). In City of Fargo v. Stensland, 492 N.W.2d 591, 592 n.3 (N.D. 1992), the North Dakota Supreme Court upheld N.D.C.C. ~39-20-07(3), a statute providing that Ia] person having an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after driving or being in physical control of a vehicle is under the influence of intoxicating liquor at the time of driving or being in physical oontrol of a vehicle. In City of Fargo, the defendant contended, in part, that the statute was unreasonable because it allowed for convictions for DUI 11 94-0323 CRIMINAL TERM where a person was not under the influence at the time of operating the vehicle. City of Fargo v. Stensland, 492 N.W.2d 591, 594 (N.D. 1992). Additionally, he contended that the statute was arbitrary because a conviction might hinge on the time a blood-alcohol content test was administered. Id. The court, in acknowledging that a person with a BAC below 0.10% while driving might be convicted under the statute, pointed out that "[t]he precise blood- alcohol content at the time of operation or control is not an element of the per se offense." Id. According to the court, the legislature, in adopting N.D.C.C. 39-20-07(3), sought to deter persons consuming a substantial amount of alcohol from driving, and even though the statute might lead to the conviction of a person with less than a 0.10% BAC, the law was neither unreasonable nor arbitrary. The Court noted that, in enacting N.D.C.C. 39-20-07(3), the North Dakota legislature "considered testimony regarding impairment levels and factors that affect alcohol absorption and reduction rates." Id. It was held that the "legislature could reasonably conclude that those who drive a vehicle with a blood alcohol content that is .10% or greater, within two hours after relinquishing control of a vehicle, pose an unreasonable risk to public safety. The statute is reasonably related to removing the risk." Id. at 594-95. Finally, a New York statute analogous to Section 3731(a)(5) withstood a challenge based on the contention that it was 12 94-0323 CRIMINAL TERM unconstitutionally vague in People v. Lebron, 501 N.Y.S.2d 975 (Sup. 1986). Pursuant to N.Y. Vehicle and Traffic Law S1192(2), it was illegal to operate a motor vehicle with a BAC of 0.10 percent or greater as shown by a chemical test made pursuant to §1194. According to N.Y. Vehicle and Traffic Law ~1194(2)(a)(1), if a police officer had probable cause to believe that a person was in violation of ~1192, the test had to be made within two hours of operating the vehicle. In holding these provisions constitutional, the New York Supreme Court wrote: Such a statute is not impermissibly "vague"; on the contrary, it is evident that, at least in terms of promoting even-handed law enforcement, the statute could not be more precise because it establishes an empirical standard which may be readily ascertained by the use of reliable testing procedures. Nor does due process necessarily require that a defendant, in order to conform his conduct to the statute, have the ability to identify his exact blood alcohol level at the time he undertakes to operate a vehicle. The Constitution only requires reasonable precision; it does not impose "impossible ls." There is now a substantial body ~~ ~ ntific evidence that virtually all suffer cognizable impairment of their ~ ~ riving ability at .10 per cent blood ~ % One who drives a vehicle after ~ ~/~ C~ ~J nsumed sufficient alcohol to approach ~7~ ~ ! the level proscribed is fairly on ~ ~t he is in jeopardy of violating the ~eople v. Lehman, 501 N.Y.S. 2d 975, 977 (Sup. 1986) (citations omitted). In addition to the foregoing cases from our sister states, we 13 94-0323 CRIMINAL TERM find support for upholding Section 3731(a)(5) against the challenge that it is unconstitutionally vague in the Pennsylvania Supreme Court decision of Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). In Mikulan, the Court upheld, against a challenge that it was unconstitutionally vague, Section 3731(a)(4) of the Vehicle Code, which provides: (a) Offense defined.- A person shall not drive, operate or be in actual physical control of the movement of any vehicle: ... (4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater. As the Mikulan court observed, "there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving and there is little doubt that the legislature could, if it so chooses, prohibit driving within a certain reasonable time after drinking any amount of alcohol, (so long as the prohibition was rationally related to the legitimate legislative purpose)." Commonwealth v. Mikulan, 504 Pa. 244, 254, 470 A.2d 1339, 1344 (1983). In holding that Section 3731(a)(4) of the Vehicle Code provided adequate warning of the activity proscribed, the Court noted that "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Id. at 254-55, 470 A.2d at 1344, quoting United States v. Powell, 423 U.S. 87, 93, 96 S. Ct. 316, 320, 46 L. Ed. 2d 228, 234 (1975). 14 94-0323 CRIMINAL TERM Furthermore, according to the Mikulan Court, "[t]he legislature has squarely, and fairly, placed the risk of erroneous judgment of alcohol consumption on the person who has the choice, the drinking driver, rather than upon the unwitting and innocent victims of his or her erroneous judgment." Commonwealth v. Mikulan, 504 Pa. 244, 255, 470 A.2d 1339, 1344 (1983). Moreover, the widespread availability of charts as a guide to the amount of alcohol that can safely be consumed by persons of varying weights has been judicially noted in other jurisdictions. Similarly, in Pennsylvania, the use of such charts, provided for instance by the Pennsylvania Liquor Control Board and the American Automobile Association and frequently published in newspapers and magazines, particularly near the holidays, can greatly ameliorate the relatively minor inconvenience to the drinking driver. Id., 470 A.2d at 1344-45 (citations omitted). In addition, the Court observed that "[t]here is no room for argument that Section 3731(a)(4) encourages arbitrary and erratic enforcement. Not only is the discretion of policemen, judges and juries limited by ascertainable standards, law enforcement discretion is completely eliminated by this statutory scheme once the blood alcohol content is determined." Commonwealth v. Mikulan, 504 Pa. 244, 253 n.8, 470 A.2d 1339, 1343 n.8 (1983). Therefore, relying on the persuasive authority from our sister states and the Pennsylvania Supreme Court's decision in Mikulan, we hold that ~3731(a)(5) of the Vehicle Code is not unconstitutionally 15 94-0323 CRIMINAL TERM vague. The statute provides a sufficient, objective standard in the form of a rule that a person who consumes an amount of alcohol sufficient to raise his or her BAC to 0.10% as determined by a test, conducted within three hours of relinquishing control of his or her vehicle, will be subject to prosecution. The statute does not require that the BAC be 0.10% or greater when the individual is operating a vehicle. Thus, an individual is given fair notice that he or she may be tested for alcohol in the blood within three hours of driving. As the Mikulan Court observed, charts are widely available to inform the driver how much alcohol consumption is needed to reach a BAC of 0.10%. Therefore, the burden is properly on the driver to limit his or her consumption of alcohol so as not to drive after consuming an amount sufficient to raise his or her BAC to 0.10%. Additionally, it cannot be said that Section 3731(a)(5) will encourage arbitrary enforcement. The statute provides a specific and objective standard by which to compare a person's BAC, namely 0.10%. Moreover, given the logistics of the usual arrest for drunk driving, on a highway at a distance from the equipment necessary to perform the test to accurately determine the BAC, a time lag is inevitable. We do not feel that the three-hour standard of Section 3731(a)(5) is unreasonable or vague. With regard to Defendant's contention that Section 3731(a)(5) of the Vehicle Code is unconstitutional and violates due process because it does not bear a real and substantial relationship to 16 94-0323 CRIMINAL TERM accomplishment of the legislative goal of reducing driving under the influence, we find it equally unpersuasive. Our analysis of this issue begins with a consideration of the purpose of Pennsylvania's DUI law, which was carefully examined in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). "[P]robably the most important function of government is the exercise of the police power for the purpose of preserving the public health, safety and welfare, and it is true that, to accomplish that purpose, the legislature may limit the enjoyment of personal liberty and property." Id. at 247, 470 A.2d at 1340. Moreover, "[t]he police powers of the Commonwealth are particularly broad in the matter pertaining to the safety and efficient functioning of the highways, and are perhaps strongest in matters pertaining to the sale, consumption and regulation of alcoholic beverages." Id. at 247-48, 470 A.2d at 1340 (citations omitted). The United States Supreme Court has recognized that "[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield." Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 412, 1 L. Ed. 2d 448, 453 (1957). In reciting the statistics of over 50,000 traffic deaths annually in the United States, Chief Justice Burger noted that approximately half of them were alcohol related. Mackey v. Montrym, 443 U.S. 1, 17 n.9, 99 S. Ct. 2612, 2621 n.9, 61 L.Ed.2d 321, 334 n.9 (1979). In Mikulan, the 17 94-0323 CRIMINAL TERM Pennsylvania Supreme Court also emphasized such concerns: When we consider as well that over three- quarters of a million human beings are seriously, and often permanently, injured and maimed as a result of alcohol related accidents, the emotional trauma and economic loss experienced by the victims and their families, and the millions of dollars of property damage, it is easy to see that society is faced with a problem of frightening and epidemic proportions. Commonwealth v. Mikulan, 504 Pa. 244, 249, 470 A.2d 1339, 1341 (1983). "One of the solutions chosen by our legislature to this epidemic was to make it unlawful to drive, operate or physically control the movement of any vehicle while the amount of alcohol by weight in the blood is 0.10% or greater. It is now virtually universally accepted that a person with a [blood alcohol level] of 0.10 should not be driving." Id. Accordingly, the Court held that [i]t is beyond dispute that the General Assembly has a compelling interest in protecting the health and safety of the travelers upon our highways and roads against the ravage caused by drunken drivers, and that the means chosen to serve that interest - the per se Motor Vehicle Code violation contained in section 3731(a)(4) - is rationally and reasonably related to achievement of that legitimate goal. Id. at 251, 470 A.2d at 1342. Additionally, the Court noted that [w]hile a person's ability to consume substantial quantities of alcohol prior to driving and remain within the bounds of the law may indeed have become "chilled" by section 3731(a)(4), this "chilling effect" on the person's "right" to drink to the cutting 18 94-0323 CRIMINAL TERM edge of sobriety is exactly what our legislature intended, is well within the police powers of the Commonwealth and is not proscribed by the due process clause. Id. at 254, 470 A.2d at 1344. The General Assembly amended Section 3731 of the Vehicle Code in 1992 to include subsection (a)(5). This amendment was in response to certain decisions dealing with the statute as then existing. Pa. House Legis. J., November 17, 1992, at 1853. Although not mentioned in the Pennsylvania Legislative Journal, it is probable that the cases referred to included Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601A.2d 1233 (1992). In Jarman, the defendant was charged with a violation of Section 3731(a)(4) of the Vehicle Code based on a BAC of 0.114% as determined by a blood test approximately one hour after he was stopped. In Modaffare, the defendant was charged with a violation of S3731(a)(4) based on a BAC of 0.108% measured by a blood test taken approximately one hour and fifty minutes after being stopped. In both cases, the defendants challenged their convictions, claiming that the results of the tests did not accurately reflect the content of alcohol in their blood at the time of driving. The Court held that the evidence of the defendants' blood alcohol levels was insufficient, in terms of expert testimony relating back the test results, to prove beyond a reasonable doubt that their alcohol levels were equal to or greater than 0.10% while driving. 19 94-0323 CRIMINAL TERM Commonwealth v. Jarman, 529 Pa. 92, 95, 601A.2d 1229, 1230 (1992); Commonwealth v. Modaffare, 529 Pa. 101, 104, 601A.2d 1233, 1235 (1992). In so holding, the Court reasoned as follows: In 75 Pa. C.S. S3731(a)(4), supra, it is made an offense to drive a vehicle while one's blood alcohol content is 0.10% or greater. In contrast, we note that the legislatures of certain other states have enacted statutes making it an offense to drive with a blood alcohol content of 0.10% "as shown by" or "as determined by" a blood alcohol test administered within a specified time after driving has ceased. Under such statutes, the facts of the present case might readily support a conviction. Our statute, however, is more limited in its focus. It makes one's blood alcohol content while driving the pivotal issue. Id. (citations omitted). Arguably, statutes such as [those passed by other states making driving with a BAC of 0.10% or greater as measured within a certain time after driving unlawful] may be more responsive to societal concerns about drunk driving, making it easier to obtain convictions. Such arguments could properly be addressed to our legislature, rather than to this Court, for we are constrained to apply the plain language of the existing statute. Jarman, 529 Pa. at 95 n.1, 601 A.2d at 1230 n.1; Modaffare, 529 Pa. at 104, 601A.2d at 1235. The California Court of Appeals, in upholding the constitutionality of a statute analogous to Section 3731(a)(5) of the Vehicle Code, succinctly summed up the relationship between the state's interest in keeping inebriated drivers off the road and 20 94-0323 CRIMINAL TERM statutes such as S3731(a)(5), which proscribe driving with a BAC of 0.10% or greater as measured by a test performed within several hours: To accept defendant's thesis that in the ordinary course of events defendant may not be inebriated at the time of driving, but inebriated at the time of the taking of the test, we would necessarily be required to presume that an automobile driver would hurriedly gulp down, as in this instance he would have to have done, eight drinks, jump in his car and hope to reach his destination before he became intoxicated. This variety of Russian roulette leaves a very small margin for error, inasmuch as medical studies demonstrate that the majority of ingested alcohol is absorbed by the body within 15 to 20 minutes and that the brain, requiring as it does a large blood supply, is one of the first organs of the body affected. People v. Schrieber, 119 Cal. Rptr. 812, 814 (Cal. Ct. App. 1975). In enacting Section 3731(a)(5), the General Assembly utilized its broad police powers in the areas of maintenance of the safety and efficient functioning of the highways and regulation of the sale and consumption of alcohol. As our Supreme Court has stated, the State has a compelling interest in protecting those on its highways from drunk drivers. To allow a person to drive after consuming sufficient alcohol to, at some point within three hours of cessation of the operation of a vehicle, raise his or her BAC to 0.10% would, in the words of the California court, be playing Russian roulette with the lives of others on the roadways of the Commonwealth. Thus, in preventing someone from driving with a BAC 21 94-0323 CRIMINAL TERM of 0.10% or greater as measured within three hours of driving, Section 3731(a)(5) is reasonably related to the goal of the legislature of protecting the health and safety of the travelers of highways from drunk drivers. Defendant's final contention is that Section 3731(a)(5) of the Vehicle Code creates an illegal presumption that a person has been under the influence of alcohol while driving a vehicle if the prosecution proves that the person had a BAC of 0.10% or greater at any time during a three-hour period after the person had driven a vehicle - in violation of the due process clause. Defendant points to Section 3731(a.1) of the Vehicle Code, which requires the defendant to bear the burden of persuasion with regard to having consumed alcohol after driving. Moreover, in his brief, Defendant appears to be contending that, because the State continues to denominate the offense as driving under the influence, an element of the offense which must be proven by the Commonwealth is a person's being under the influence at the time of driving.TM Section 3731(a.1) provides: 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 his blood would not have exceeded 0.10% at the ~4 See Defendant's Brief in Support of Defendant's Motion to Dismiss the Charge of 75 Pa. C.S.A. ~3731(a)(5), 30-31. 22 94-0323 CRIMINAL TERM time of the test but for such consumption. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A. S3731 (a.1) (1994 Supp.). Once again, unable to find any appellate case law in the Commonwealth relating to this matter, we look to our sister states for guidance. In Cacavas v. Bower, 811P.2d 366 (Ariz. Ct. App. 1991), the court addressed similar arguments in upholding a statute analogous to Section 3731(a)(5) of the Vehicle Code, including a similar affirmative defense. In so doing, the Court held that the affirmative defense provision of the statute, Ariz. Rev. Stat. Ann. ~28-692(B),~ did not "establish an essential element of the crime and then place the burden of disproving that defined element on the accused." Cacavas v. Bowen, 811 P.2d 366, 368 (Ariz. Ct. App. 1991). Moreover, the court noted, Ariz. Rev. Stat. Ann. ~28- 692(A)(2)~6 was violated by "having the requisite BAC not only at the time of operating or controlling the motor vehicle but also ~ It is an affirmative defense to a charge of a violation of subsection A, paragraph 2 of this section if the person did not have an alcohol concentration of 0.10 or more at the time of driving or of being in actual physical control of a vehicle. If a defendant produces some credible evidence that his blood alcohol concentration at the time of driving or being in actual physical control of a vehicle was below 0.10, the state must prove beyond a reasonable doubt that the defendant's blood alcohol content was 0.10 or more at the time of driving or being in actual physical control of a vehicle. ~6 A. It is unlawful and punishable as provided in ~28-692.01 for any person to drive or be in actual physical control of an~ vehicle within this state under any of the following circumstances, (2) If a person has an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle. 23 94-0323 CRIMINAL TERM within two hours thereafter... Id. at 369. As the same court observed in State v. Martin, 847 P.2d 619, 624 (Ariz. App. Ct. 1992), It]he essential element of 28-692(A)(2) is having a BAC of 0.10 percent within two hours of driving. Section 28-692(B) neither establishes that element nor places the burden of disproving it on the defendant. To convict a defendant of a violation of section 28- 692(A)(2), the state must still prove beyond a reasonable doubt that defendant's blood alcohol concentration was 0.10 or more within two hours of driving. Similarly, the Minnesota Court of Appeals, in State v. Chirpich, 392 N.W.2d 34 (Minn. Ct. App. 1986), upheld Minn. Stat. S169-121(1)(e)~? against a challenge that it acted as an irrebuttable presumption of guilt and impermissibly shifted the burden of proof to the defendant to prove that, if defendant's BAC was .10% or more within two hours of driving, it was not .10% or more at the time of driving. According to the court, The State still must prove beyond a reasonable doubt that the blood alcohol concentration was .10 or more. Of necessity, juries understand that blood alcohol tests are not taken the instant a driver is stopped and exits the car. By definition, there must be a time lag while the driver is first investigated at roadside and then later transported to an appropriate facility where blood alcohol concentration can ~7 (1) It is a misdemeanor for any person to drive, operate or be in physical control of any motor vehicle within this state (e) When the person's alcohol concentration as measured within two hours of the time of driving is 0.10 or more. 24 94-0323 CRIMINAL TERM be determined. Expert testimony is available to both sides, if needed, of the effects of alcohol in the blood over a period of time. There is no impermissible burden shift to the defendant in a prosecution under subdivision l(e). State v. Chirpich, 392 N.W.2d 34, 37 (Minn. Ct. App. 1986). With regard to Defendant's reliance upon the heading of the Pennsylvania statutory section in issue in support of his position, we note the following provision of the Statutory Construction Act: The title and preamble of a statute may be considered in the construction thereof. Provisions shall be construed to limit rather than to extend the operation of the clauses to which they refer. Exceptions expressed in a statute shall be construed to exclude all others. The headings prefixed to titles, parts, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof. Act of December 6, 1972, P.L. 1339, S3, 1 Pa. C.S.A. S1924 (1994 Supp.) (emphasis added). In summary, we find compelling the rationale of our sister state appellate courts in upholding laws similar to Section 3731(a)(5) against challenges that they create unconstitutional presumptions by shifting the burden of proof, and thus find Defendant's argument unavailing. For the reasons stated in this Opinion, the following Order shall be entered: ORDER OF COURT AND NOW, this ~ day of September, 1994, after careful 25 94-0323 CRIMINAL TERM consideration of Defendant's Original and Supplemental Omnibus Pretrial Motions, for the reasons stated in the accompanying Opinion, the Motions are DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. ~. Wesley Oler, Jr., J. Office of the District Attorney Patrick F. Lauer, Jr., Esq. 2108 Market Street Camp Hill, PA 17011 Attorney for Defendant .re 26