Com. v. Barud

• Citation: 681 A.2d 162,545 Pa. 297
• Parties: , 65 USLW 2159 COMMONWEALTH of Pennsylvania, Appellant, v. David M. BARUD, Appellee.
• Decision Date: 30 July 1996
• Court: United States State Supreme Court of Pennsylvania

Page 162

681 A.2d 162

545 Pa. 297, 65 USLW 2159

COMMONWEALTH of Pennsylvania, Appellant, v. David M. BARUD, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 18, 1995.

Decided July 30, 1996.

James R. Gilmore, Pittsburgh, Jerome T. Foerster, Harrisburg, for Commonwealth.

Joseph E. Vogrin, III, Pittsburgh, for David Barud.

Joseph P. Green, Jr., West Chester, Amicus Curiae.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

The issue presented in this appeal is whether the newly enacted Driving Under the Influence statute, 75 Pa.C.S. § 3731(a)(5), which imposes criminal penalties on individuals who have a blood alcohol content ("BAC") equal to or in excess of .10% within three hours of driving, violates the due process guarantees of the United States and Pennsylvania Constitutions. Because, § 3731(a)(5) unnecessarily encompasses both lawful and unlawful conduct; fails to provide a reasonable standard by which a person may gauge their conduct; encourages arbitrary and discriminatory enforcement; and fails to require proof that a person's BAC actually exceeded the legal limit at the time of driving;, we conclude that 75 Pa.C.S. § 3731(a)(5) is unconstitutional.

The facts of this case establish the following: On December 15, 1993, at approximately 2:20 a.m., Officer Szurlej of Reserve Township, Allegheny County, was monitoring traffic at the intersection of Spring Garden Avenue and Mount Troy Road when he observed appellee approach the intersection and drive his vehicle 12 to 15 feet past a stop sign before bringing the vehicle to a complete stop. Officer Szurlej followed appellee in his police cruiser for about a quarter of a mile before activating his emergency lights and pulling appellee over to the side of the road. Appellee on his own volition exited his vehicle, stumbled, and then began to walk toward Officer Szurlej. Officer Szurlej ordered appellee back to his car, approached the vehicle and observed that the vehicle's registration and inspection stickers were expired. Upon speaking with appellee, the officer noticed that appellee's speech was slurred, that his eyes were bloodshot and that he smelled strongly of alcohol. Officer Szurlej administered three field sobriety tests, all of which appellee failed.

Appellee was placed under arrest for Driving Under the Influence at 2:34 a.m. and subsequently consented to a blood test which was taken at 2:55 a.m., approximately thirty-five minutes after the stop. The test later revealed a BAC of 0.15%. After being informed of his Miranda rights, appellee waived his right to remain silent and informed the officer that he had consumed seven beers between the hours of 7:00 p.m. and 2:00 a.m.

The Commonwealth charged appellee with: (1) one count of driving under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1) (incapable of safe driving); (2) one count of driving under the influence of alcohol in violation of § 3731(a)(5), the statute at issue here; and (3) a summary offense for failing to stop at a stop sign. On May 20, 1994, appellee filed omnibus pre-trial motions, including a motion to dismiss the second count alleging that 75 Pa.C.S. § 3731(a)(5) violated the due process clause of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. Following a hearing in the Court of Common Pleas of Allegheny County, the trial court issued an opinion and order granting appellee's pre-trial motion dismissing the second count, holding that 75 Pa.C.S. § 3731(a)(5) was unconstitutional. The trial court further denied the remainder of appellee's pre-trial motions and denied the Commonwealth's motion to amend the criminal information. ¹ This direct appeal followed. ²

The issue raised in this appeal is whether § 3731(a)(5) of the Motor Vehicle Code violates the substantive due process guarantees of the United States and Pennsylvania Constitutions. ³ Appellee claims that § 3731(a)(5) violates substantive due process because it is void for vagueness and is overbroad, that it is not rationally related to the state's interest in curbing DUI offenders, and that the statute fails to provide a rebuttable presumption that the accused's BAC at the time of testing accurately reflects their BAC at the time of driving and fails to provide for an affirmative defense requiring the state to prove that the accused's BAC was at least .10% at the time of driving.

Generally, this amended driving under the influence statute, § 3731(a)(5), makes it an offense under the Motor Vehicle Code to have a BAC of .10% or greater within three hours after a person drove, operated or was in actual physical control of the movement of a motor vehicle. Section 3731(a)(5) provides in relevant part:

§ 3731 Driving under influence of alcohol or controlled substance

(a) Offense defined.--A person shall not drive, 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 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 control of the vehicle....

The statute also provides for a defense to charges under § 3731(a)(5) if the accused can establish by a preponderance of evidence that he or she consumed enough alcohol after the last instance in which the person drove which caused their BAC to rise above .10% at the time of testing. Section 3731(a.1) states in full:

(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 his blood would not have exceeded 0.10% at the time of the test but for such consumption.

75 Pa.C.S. § 3731(a)(5).

At the outset, we note that it is evident that § 3731(a)(5) was enacted in response to this Court's decisions in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), in which this Court found that there was insufficient evidence to sustain the defendants' convictions for operating a motor vehicle with a BAC of .10% or greater in violation of 75 Pa.C.S. § 3731(a)(4) (BAC of .10% or greater) of the Motor Vehicle Code. ⁴ In both Jarman andModaffare, which were decided on the same day, the defendants were arrested for driving while under the influence of alcohol and were subsequently transported to area hospitals for the administration of a blood test. Jarman's blood test, which was taken approximately one hour after he was stopped, revealed a BAC of .114%. Jarman, 529 Pa. at 94, 601 A.2d at 1229. Modaffare revealed a BAC of .108% approximately one hour and fifty minutes after he was stopped. Modaffare, 529 Pa. at 103, 601 A.2d at 1234. At trial, the Commonwealth's expert witnesses testified that the defendants' BAC may not have peaked until after the defendants had operated their motor vehicles since a person's blood alcohol level steadily rises after drinking until a peak is reached some 60 to 90 minutes after the drinking has ceased. Jarman, 529 Pa. at 96, 601 A.2d at 1231; Modaffare, 529 Pa. at 105, 601 A.2d at 1234. See also, Commonwealth v. Gonzalez, 519 Pa. 116, 130, 546 A.2d 26, 33 (1988) ("[g]enerally, it takes from 30 to 90 minutes for alcohol to be fully absorbed and reach its peak level") (citation omitted). This Court concluded that because: (1) there was a significant delay between the time the defendants were stopped and the time that their BAC was tested and (2) that the blood test revealed that the defendants' BAC only minimally exceeded .10% at the time of testing, the evidence was insufficient to prove that the defendants' BAC was equal to or greater than .10% at the time of driving. Jarman, 529 Pa. at 97, 601 A.2d at 1231; Modaffare, 529 Pa. at 106-07, 601 A.2d at 1236. Subsequent to this Court's decisions in Jarman and Modaffare, this Court held that where a person's blood alcohol test reveals levels of alcohol significantly above the legal threshold (.10%) and where there was a not a significant lapse of time between the time when the driver was stopped and when the blood test was administered, the Commonwealth was not required to present expert testimony to prove that a driver operated a vehicle with a BAC of .10% or also Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995) (holding that where evidence is insufficient to support a conviction under § 3731(a)(4) (BAC of .10% or greater) and defendant has not also been charged with violating § 3731(a)(1) (incapable of safe driving), additional evidence of the defendant's alleged intoxication is not relevant to determining whether defendant violated (a)(4)).

With the preceding case law in mind, we begin our analysis by recognizing that there is a strong presumption in the law that legislative enactments do not violate the constitution. Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983); Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). Moreover, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. Commonwealth v. Mikulan, supra. While penal statutes are to be strictly construed, the courts are not required to give the words of a criminal statute their narrowest meaning or disregard the evident legislative intent of the statute. Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 880 (1988). A statute, therefore, will only be found unconstitutional if it "clearly, palpably and plainly" violates the constitution. Commonwealth v. Mikulan, supra.

I. Void for Vagueness and Overbreadth

Appellee contends that § 3731(a)(5) is void for vagueness and...