Com. v. Beshore

• Decision Date: 18 January 2007
• Citation: 916 A.2d 1128
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey BESHORE, Appellant (at 633). Commonwealth of Pennsylvania, Appellee v. Paul R. Imes, Appellant (at 634). Commonwealth of Pennsylvania, Appellee v. Jan L. Neufeld, Appellant (at 696).
• Court: Pennsylvania Superior Court

916 A.2d 1128

COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey BESHORE, Appellant (at 633).

Commonwealth of Pennsylvania, Appellee v. Paul R. Imes, Appellant (at 634).

Commonwealth of Pennsylvania, Appellee v. Jan L. Neufeld, Appellant (at 696).

Superior Court of Pennsylvania.

Argued October 26, 2006.

Filed January 18, 2007.

Paul R. Wagner, for appellants.

James P. Barker, Asst. Dist. Atty., Harrisburg, for Com., appellee (at 633 and 634) and Michelle H. Sibert, Asst. Dist. Atty., Carlisle, for Com., appellee (at 696).

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLYGREEN, TODD, KLEIN, BENDER and BOWES, JJ.

OPINION BY BENDER, J.:

¶ 1 Jeffrey Beshore, Paul R. Imes, and Jan L. Neufeld (Appellants) appeal from the judgments of sentence imposed following their various convictions for driving under the influence of alcohol (DUI). On appeal, Appellants are all represented by the same attorney who has filed a brief in each case, presenting eleven identical issues supported by ostensibly verbatim argument from one brief to the next. We have reviewed all the issues and find many to be without merit and others waived. What follows are our reasons for affirming all the judgments of sentence, organized into separate sections presenting the facts of each case and then one analysis section for each of the eleven questions presented, whereby we dispose of that question as it applies to each case before us.

FACTS

No. 633 MDA 2005

¶ 2 On May 23, 2004, two Pennsylvania State Police Troopers were on routine patrol in a marked car traveling southbound on I-81 when an automobile operated by Jeffrey L. Beshore entered the highway. The Troopers observed Beshore's vehicle travel on the right berm several times and clocked him at a speed of 72 mph in a 55 mph zone. The Troopers then initiated a traffic stop.

¶ 3 Beshore immediately exhibited signs of intoxication, as he had problems providing his driver's license, vehicle registration and proof of insurance. He also had blood-shot eyes, spoke with slurred speech, and emitted a strong odor of alcohol. The Troopers administered field sobriety tests, which Beshore failed. He was placed under arrest for suspicion of DUI and taken to a local hospital. There he was given an implied consent warning, but he refused to consent to a blood test.

¶ 4 Based on the foregoing, the Commonwealth charged Beshore with DUI under 75 Pa.C.S. § 3802(a)(1) and other summary offenses. Beshore filed a pretrial motion raising several constitutional challenges to the DUI statute and its related provisions, which had been amended in 2003. See 75 Pa.C.S. §§ 3801-3817 (hereinafter referred to as "the new DUI law"). The court denied the motion and following a bench trial, the court found Beshore guilty on all counts. This was Beshore's third conviction for DUI and the court sentenced Appellant to a term of imprisonment of five to twenty-three months and to pay a fine.

No. 634 MDA 2005

¶ 5 On May 28, 2004, Paul R. Imes was operating a vehicle when he was involved in a traffic accident. Police officers reported to the scene and observed Imes, who appeared to be intoxicated as he smelled of alcohol, had glassy and blood-shot eyes, and slurred his speech. The officers arrested Imes on suspicion of DUI and transported him to a local hospital where he consented to a breathalyzer test which revealed a blood alcohol content (BAC) level of .229%.

¶ 6 As a result of the foregoing, Imes was charged with DUI under Section 3802(a)(1) and Section 3802(c). Imes filed a pretrial motion raising several constitutional challenges to the new DUI law, which the court denied. Following a bench trial, the court found Imes guilty as charged. This was Imes' third DUI and he was sentenced to a term of imprisonment of one to two years and to pay a fine.

No. 696 MDA 2005

¶ 7 On February 14, 2004, Jan L. Neufeld was clocked traveling 54.7 mph in a 25 mph zone by a police officer from the West Shore Regional Police Department. The officer stopped Neufeld, who exhibited signs of intoxication. She emitted a strong odor of alcohol, her speech was slurred and her eyes were bloodshot and glassy. Despite being visibly intoxicated, she stated to the officer that she had drunk only one beer. After the officer administered a field sobriety test, he arrested Neufeld on suspicion of DUI.

¶ 8 Neufeld was taken to a booking center where she was given an Implied Consent warning. However, Neufeld refused to take a breathalyzer test. Based on the foregoing, the Commonwealth charged Neufeld with DUI under Section 3802(a)(1) and other summary offenses. Neufeld filed a pretrial motion raising several constitutional challenges to the new DUI law, which the court denied. Following a bench trial, the court found Neufeld guilty and sentenced her to a term of imprisonment of ninety days to twenty three months and to pay a fine.

ANALYSIS

¶ 9 All three briefs presented by Appellants contain the same eleven questions, which are as follows:

A. Should Act 24 of 2003 be analyzed under the strict scrutiny test as effecting [sic] a fundamental right?

B. Does Act 24 of 2003 violate the United States Constitutional Amendment 5 as being void for vagueness?

C. Does the statute violate the 5^th Amendment of the United States Constitution if it is overly broad in its application to constitutionally protected activity?

D. Does the Act 24 of 2003 violate the due process guarantees in that it permits and promotes arbitrary and discriminatory enforcement by police officers?

E. Is Act 24 of 2003 arbitrary in its application and therefore violative of the due process guarantees of the constitution?

F. Does Act 24 of 2003 violate the defendant's 6^th Amendment right to counsel at a time of request for chemical test or refusal to take such test?

G. Does the Act violate the defendant's 5^th Amendment right to remain silent?

H. Does Act 24 of 2003 violate the equal protection clause by creating classifications that do not bear a rational relationship to a legitimate state interest?

I. Does Act 24 of 2003 violate the due process clause of the federal and state constitutions and the notice and trial guarantees of the 6^th Amendment by increasing the penalty for a crime without charging the element that increases that penalty and without requiring proof of that element?

J. Does Act 24 of 2003, as it amends § 6308 of the Motor Vehicle Code, violate the Pennsylvania Constitution, Article I, § 8 and § 4?

K. Are the penalty provisions of Act 24 of 2003 ambiguous and inconsistent with other provisions of the act so as to fail to provide notice to the accused that his contemplated conduct is unlawful?

Brief for Appellant Beshore at 4-6; Brief for Appellant Imes at 4-6; Brief for Appellant Neufeld at 5-7.¹

¶ 10 We note that all eleven questions present constitutional challenges of one sort or another to the new DUI law.

[W]hen evaluating challenges to a statute-whether those challenges are based on vagueness, overbreadth, the Commonwealth's burden of proof, the right to defend, or any other considerations-we must also keep in mind that there is a strong presumption that legislation is constitutional. A party challenging legislation bears a heavy burden to prove otherwise. Accordingly, this Court will strike the statute in question only if Appellant convinces us that it clearly, palpably and plainly violates the federal or state constitutions.

Commonwealth v. Thur, 906 A.2d 552, 560-61 (Pa.Super.2006) (citations omitted).

Question A.

¶ 11 In the first question presented for our review, Appellants claim that a strict scrutiny test should be applied in determining the constitutionality of the new DUI law. However, as the Commonwealth argues, Appellants have conflated two issues here, i.e., the fact that a penal statute is to be strictly construed, see Commonwealth v. Henderson, 444 Pa.Super. 170, 663 A.2d 728, 733 (1995); 1 Pa. C.S. § 1928(b)(1), and on the other hand the highest level of scrutiny applied in an equal protection analysis.

When addressing an equal protection challenge, we must initially ascertain the appropriate degree of scrutiny to which the challenged act is to be subjected. Equal protection analysis recognizes three types of governmental classification, each of which calls for a different standard of scrutiny. The appropriate standard of review is determined by examining the nature of the classification and the rights thereby affected.

In the first type of case, where the classification relates to who may exercise a fundamental right or is based on a suspect trait such as race or national origin, strict scrutiny is required. When strict scrutiny is employed, a classification will be invalid unless it is found to be necessary to the achievement of a compelling state interest.

The second type of case involves a classification which, although not suspect, is either sensitive or important but not fundamental. Such a classification must serve an important governmental interest and be substantially related to the achievement of that objective.

The third type of situation involves classifications which are neither suspect nor sensitive or rights which are neither fundamental nor important. Such classifications will be valid as long as they are rationally related to a legitimate governmental interest.

In re Private Complaint of Owens Against Coker, 810 A.2d 172, 177 (Pa.Super.2002). Thus, when analyzing the constitutionality of a statute that affects a suspect class or a fundamental right, courts are to apply to strict scrutiny test to determine whether the statute advances a compelling state interest. This is entirely unrelated to the requirement that penal statutes are to be strictly construed, which prescribes the manner in which courts are to read penal statutes.

¶ 12 Certainly, the new DUI law, as a penal statute, is subject to strict construction. However, as we shall discuss below, since the law does not affect a suspect class or...