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HomeMy WebLinkAboutCP-21-CR-2761-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CP-21-CR-2761-2004 BRIAN DAVID SEMUT A IN RE: OPINION PURSUANT TO RULE 1925 The defendant, Brian David Semuta, was sentenced on August 16, 2005, following his June 6th conviction on a count of driving under the influence. Trial and sentencing occurred before the Honorable Edgar B. Bayley of this court. Both Judge Bayley and I ruled on various pretrial motions which rulings are the subj ect of the defendant's concise statement of matters complained of on appeal. Judge Bayley has authored an opinion setting forth the facts of this case. They will not be reiterated here. The defendant complains that three errors were made by the undersigned. We will deal with them seriatim. First, the defendant contends that it was error to deny his omnibus pretrial motion to dismiss based on a violation of substantive due process under the Pennsylvania (Article I, Section 9) and the United States (Fifth and Fourteenth Amendments) Constitutions. Pennsylvania's driving under the influence statute, 75 Pa.C.S.A. 3802, makes it unlawful to drive a motor vehicle after imbibing a sufficient amount of alcohol to reach certain blood alcohol concentrations within two hours after the individual has driven. The thrust of the defendant's due process argument is that because the statute fails to require the state to prove a given blood alcohol level at the time of driving, it is overbroad and void for vagueness. Similar constitutional issues were dealt with by the Supreme Court in Com. v. Barud, 681 A.2d 162 (Pa. 1996). The issue presented there was whether the then newly enacted driving CP-21-CR-2761-2004 under the influence statute, 75 Pa.C.S.A. 3731(a)(5), which imposed criminal penalties on individuals with a blood alcohol content in excess of .10% within three hours of driving, violates the due process guarantees of the United States and Pennsylvania Constitutions. In Barud, the Supreme Court concluded that Section 3731(a)(5) was void for vagueness and overbreadth. The court noted that it was illegal under the DUI law to operate a vehicle with a blood alcohol content of .10% at the time of driving. The court observed that under Section 3731 (a)( 5), a person could be below .10% at the time of driving and yet test higher within three hours after driving. As Judge Bayley, of this court, observed in Com. v. Neufeld, 54 Cumbo 96 (2005), the provisions of the new DUI law are markedly different from the statutory provisions which were found unconstitutional in Barud. Unlike the prior driving under the influence law at 75 Pa.C.S. Section 3731 as amended by Section 3731(a)(5), the new law does not contain a .10% "legal limit." The new legal limit is "0.08 percent within two hours after an individual has driven, operated or been in actual physical control of the movement of the vehicle." Therefore, unlike in Barud, the new law does not encompass both lawful and unlawful conduct. The new legal limit of.08 percent or above within two hours after driving that constitutes the offense is a reasonable standard by which people may gauge their conduct. Thus, the statute does not encourage arbitrary and discriminatory enforcement. Neufeld, at 102-103. In other words, the new law's provision setting a limit of .08% within two hours of driving does not conflict with any other provision of the statute providing for a maximum blood alcohol level at the time of driving. Implicit, we believe, in the new law, however, is an understanding that the blood alcohol being measured is the alcohol in the driver's body at the 2 CP-21-CR-2761-2004 time of the cessation of driving. We find nothing that would preclude the defendant, for example, from defending the charge on the basis that the blood alcohol reading resulted from alcohol consumed after he ceased operating a motor vehicle. In fact, any other construction of the statute would be absurd. 1 The defendant next contends that we erred in denying his motion to suppress evidence of a test of his breath for alcohol. Specifically, Semuta contends that, due to the enhanced nature of the penalties for refusing to submit to a breath test, he is entitled to counsel at the time he is requested to submit to same. As we noted in our order disposing of this matter, this issue was decided adversely to him in the case of Com. v. Nerat, C.P. 21-CR-983-2004, 54 Cumb.L.J. 36 (2004). We attach the Nerat case hereto and incorporate the same herein by reference. Finally, the defendant contends that the breath sample in this case was obtained pursuant to an unreasonable search and seizure. Specifically, he contends that as the police now have two hours after an arrest within which to obtain a blood alcohol reading, there is sufficient time to obtain a search warrant and that Dill arrests no longer present an exception to the search warrant requirement based exigent circumstances. It is well established as a matter of Pennsylvania constitutional law that blood alcohol testing may be conducted without a search warrant. This is so not because there are "exigent circumstances" but because the implied consent law creates a statutory mechanism which implies the consent of a driver to undergo alcohol testing. See Com. v. Keller, 823 A.2d 1004 (Pa. Super. 2003), appeal denied 832 A.2d 437 (Pa. 2003). The defendant cites no authority for the 1 A basic presumption in ascertaining legislative intent is to the effect that the General Assembly "does not intend a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S.S. 1922(1). 3 CP-21-CR-2761-2004 proposition that a search warrant is now required, the implied consent law notwithstanding. Such a sea change in established Pennsylvania law will not begin in this court? October 27, 2005 Kevin A. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Marlin L. Markley, Jr., Esquire F or the Defendant :rlm 2 As the distinguished jurist Learned Hand observed in Spector Motor Service v. Walsh, 139 F.2d 809 (1943): "Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time but whose birth is distant." 4