Com. v. Duda
| Decision Date | 31 May 2007 |
| Docket Number | No. 24 WAP 2005.,24 WAP 2005. |
| Citation | 923 A.2d 1138 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Bradley G. DUDA, Appellee. |
| Court | Pennsylvania Supreme Court |
Leonard J. Berger, Jr., Esq., for Bradley G. Duda.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.
In this direct appeal, we consider the constitutionality of a provision of Pennsylvania's DUI statute that prohibits driving after having consumed enough alcohol to elevate one's blood alcohol concentration to a certain level within two hours after driving.
On August 21, 2004, at 12:32 a.m., a Pittsburgh police officer was dispatched to the scene of a two-car accident. He arrived at the scene two minutes later and spoke to Appellee, who had been driving one of the vehicles. In doing so, he noted a moderate odor of alcohol about Appellee and observed that his eyes appeared "glassy" and that he had a staggered gait. The officer administered several field sobriety tests which Appellee failed to perform to his satisfaction. Accordingly, Appellee was arrested and transported to police headquarters for breath testing. At 1:33 a.m., approximately one hour after the officer's arrival at the accident scene, Appellee took a breathalyzer test, which revealed a blood-alcohol content (BAC) of 0.081 percent.
Appellee was charged by information with misdemeanor DUI counts under Sections 3802(a)(1) and (a)(2) of the Vehicle Code, which provide:
§ 3802. Driving under influence of alcohol or controlled substance
(a) General impairment. —
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802(a).1
After pleading not guilty, Appellee filed an omnibus pre-trial motion, inter alia, challenging the constitutionality of Section 3802(a)(2) under the Due Process Clause of the United States Constitution, as well as Article I, Section 9 of the Pennsylvania Constitution.2 The trial court heard argument on the motion, and ultimately issued an order, dated July 5, 2005, finding Section 3802(a)(2) unconstitutional and dismissing the count of the information involving that provision.3 The Commonwealth filed a timely notice of appeal to this Court, certifying that the trial court's ruling substantially handicapped the prosecution, see Pa.R.A.P. 311(d), and we noted probable jurisdiction. See 42 Pa.C.S. § 722(7). As required by Rule of Appellate Procedure 1925(a), the trial court issued an opinion in support of its July 5th order.
In its opinion, the trial court found Section 3802(a)(2) to be unconstitutionally vague and overbroad. In particular, the court observed that the title of Section 3802 references the conduct of driving while under the influence, but noted that, in contrast, the Commonwealth only need prove a certain BAC level within two hours after driving. Thus, in the court's view, a person of ordinary intelligence would likely be confused as to what conduct was prohibited because he or she would not know the exact level of alcohol permitted in the blood while in operation of the vehicle. Furthermore, in the court's view, subsection (a)(2) sweeps too broadly as it includes within its proscription the activity of driving with a BAC of less than 0.08 percent so long one's BAC reaches 0.08 percent within two hours after driving, thereby criminalizing activity that would otherwise be lawful.
To understand the trial court's reasoning and the parties' present arguments, it is helpful to undertake a brief review of the historical background underlying this case. DUI statutes have existed in Pennsylvania since at least 1909.4 See generally Commonwealth v. Ullman, 204 Pa.Super. 145, 148, 203 A.2d 386, 387 (1964). In 1976, the offense was defined in the newly-enacted Motor Vehicle Code, see Act of June 17, 1976, P.L. 162, No. 81, as "driving any vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving." 75 Pa.C.S. § 3731 (repealed); see Commonwealth v. DeLeon, 276 Pa.Super. 36, 40, 419 A.2d 82, 84 (1980). Six years later, the General Assembly added, inter alia, subsection (a)(4), proscribing driving "while . . . the amount of alcohol by weight in the blood of the [driver] is 0.10% or greater." 75 Pa. C.S. § 3731(a)(4) (repealed); see Act of December 15, 1982, P.L. 1268, No. 289, § 9.
Although this latter provision — known as an "illegal per se" law — was subsequently upheld against a due process void-for-vagueness challenge, see Commonwealth v. Mikulan, 504 Pa. 244, 256, 470 A.2d 1339, 1345 (1983), litigation ensued concerning the manner and propriety of establishing a 0.10 percent BAC at the time of driving premised upon post-driving chemical testing. The reason is that there is necessarily a delay between an accident and the arrival of police at the scene, or between the moment a vehicle is stopped by the police and the time the driver is subjected to chemical testing for purposes of determining his BAC level. See generally Commonwealth v. Speights, 353 Pa.Super. 258, 263-64, 509 A.2d 1263, 1266 (1986); see also 75 Pa.C.S. § 1547(c)(1) (); 67 Pa.Code § 77.24 (). During such interval, it is likely that the individual's BAC level will change to some degree. In Commonwealth v. MacPherson, 561 Pa. 571, 578 n. 3, 752 A.2d 384, 387 n. 3 (2000), for example, this Court explained that alcohol, once ingested, is typically absorbed into the bloodstream over a 30-to-90-minute period, and then dissipated from the body gradually. Thus, to support a conviction under subsection (a)(4), the BAC reading obtained from the test was required to be extrapolated, or "related back," to the time of driving. See Commonwealth v. Gonzalez, 519 Pa. 116, 125-34, 546 A.2d 26, 30-35 (1988) (). Because, however, the police will not generally know when the driver's BAC peaks, expert evidence was, in some instances, required to satisfy the Commonwealth's burden of proof. This, in turn, led to disputes concerning whether or not expert relation-back testimony was always needed to prove the Commonwealth's case, particularly as prosecutions were brought that subsumed evidentiary factors that varied from case to case — such as the time delay between driving and BAC testing, whether the test revealed a BAC substantially or only minimally over 0.10 percent, whether the defendant's driving had been erratic, and whether there was testimony concerning the number of alcoholic drinks that the defendant ingested before driving.
Ultimately, the Superior Court settled on an interpretation of Section 3731(a)(4) whereby the prosecution did not always have to present relation-back evidence to support a conviction under that subsection. The court, for example, held that the result of a breathalyzer test, by itself, could support a conviction under subsection (a)(4), although the jury was free to acquit the defendant if there was other evidence tending to undermine the probative value of the test result, see Speights, 353 Pa.Super. at 266, 509 A.2d at 1267; see also Commonwealth v. Slingerland, 358 Pa.Super. 531, 536, 518 A.2d 266, 269 (Pa.Super.1986) (). Two years later, the Superior Court likewise affirmed a Section 3731(a)(4) conviction absent relation-back testimony because the "totality of the evidence" — including a BAC level of 0.15 percent 53 minutes after the accident, slurred speech, a staggered walk, and an odor of alcohol about the defendant — was sufficient to support the guilty verdict. See Commonwealth v. Johnson, 376 Pa.Super. 121, 128, 545 A.2d 349, 352-53 (1988).5
On the other hand, this Court found the evidence insufficient to convict in a matter where a blood test performed one hour after driving revealed a BAC only slightly above 0.10 percent, the defendant had not been driving erratically, and the Commonwealth's expert witness testified that the laboratory equipment used to perform the test had a ten percent margin of error. See Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); see also Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) ().
In Jarman, Mr. Justice Cappy, now Chief Justice, joined by former Justice McDermott, filed a dissenting opinion in which he set forth his view of the difficulties involved in the majority's approach:
In the case sub judice, the expert called by the Commonwealth testified that alcohol reaches its peak in the bloodstream within 60-90 minutes after consumption; that...
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