Com. v. Jarman

• Decision Date: 22 January 1992
• Citation: 601 A.2d 1229,529 Pa. 92
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Luther L. JARMAN, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 1229

601 A.2d 1229

529 Pa. 92

COMMONWEALTH of Pennsylvania, Appellee, v. Luther L. JARMAN, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 27, 1991.

Decided Jan. 22, 1992.

[529 Pa. 93] Richard K. Renn, for appellant.

John B. Mancke, Mancke and Wagner, Harrisburg, for amicus curiae Pennsylvania Ass'n of Criminal Defense Lawyers.

H. Stanley Rebert, Dist. Atty., Gerald A. Lord, Asst. Dist. Atty., Glenn S. Coffey, York, for appellee.

Stuart Suss, Deputy Dist. Atty., for amicus curiae Pennsylvania District Attorneys Ass'n.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

In 1988, in a trial by jury in the Court of Common Pleas of York County, the appellant, Luther L. Jarman, Jr., was convicted of operating a motor vehicle while under the influence of alcohol. An appeal was taken to the Superior Court, whereupon the judgment of sentence was affirmed. 398 Pa.Super. 645, 573 A.2d 620. We granted allowance of appeal. 525 Pa. 611, 577 A.2d 543.

At 9:11 p.m. on October 15, 1987, a state trooper noticed that appellant was driving a vehicle with a burned-out headlight bulb. He followed appellant for approximately one-half mile but did not notice anything unusual about his driving. Appellant maintained a steady course within his lane and did not travel at an excessively fast or slow speed. The trooper nevertheless decided to stop appellant because of the burned-out bulb.

Upon making the stop, the trooper noticed that there was an odor of alcohol on appellant's breath. He ordered appellant to exit from his vehicle to perform three field sobriety tests. Appellant's performance of the tests was somewhat substandard. When asked to walk heel-to-toe for nine steps, appellant walked only eight steps. When asked to close his eyes and touch one of his fingers to the tip of his nose, appellant touched below his nose in the region of his upper lip. And when asked to raise one of his feet in the air for fifteen seconds, appellant set his foot down too soon. The trooper, believing that appellant was under the influence of alcohol, placed him under arrest. Appellant was transported to a hospital where, at 10:10 p.m., a blood test was performed. The test revealed a blood alcohol content of 0.114%.

Appellant was charged under two provisions of the drunk driving law. The first provision, 75 Pa.C.S. § 3731(a)(1), makes it an offense to drive "under the influence of alcohol to a degree which renders the person incapable of safe driving." At trial, however, appellant was acquitted on this charge. Presumably the jury did not believe that appellant's faculties were sufficiently impaired as to render his driving unsafe. Appellant was convicted, however, of a violation of 75 Pa.C.S. § 3731(a)(4), which provides:

(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

....

(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

The issue presented is whether the evidence was sufficient to sustain the conviction. In reviewing the sufficiency of the evidence we are required to view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Hughes, 521 Pa. 423, 430, 555 A.2d 1264, 1267 (1989). The test is whether the evidence, when so viewed, is sufficient to prove every element of the crime beyond a reasonable doubt. Id.

Appellant argues that, because his blood sample was drawn approximately one hour after he was stopped by the trooper, it did not accurately reflect the content of alcohol in his blood at the time he was driving. See generally Commonwealth v. Gonzalez, 519 Pa. 116, 125-34, 546 A.2d 26, 30-35 (1988) (an opinion discussing the difficulty of "relating back" blood alcohol test results to the time of driving). In particular, appellant argues that expert testimony adduced by the Commonwealth on the issue of blood alcohol content was sufficiently ambiguous as to leave open to speculation the question of his blood alcohol content while driving. Upon the record presented, we agree that the evidence of appellant's blood alcohol level was insufficient to prove beyond reasonable doubt that his blood alcohol level was equal to or greater than 0.10% while driving.

In 75 Pa.C.S. § 3731(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. See generally People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657 (1986) (compilation of various states' statutes on drunk driving). Under such statutes, the facts of the present case might readily support a conviction. ¹ Our statute, however, is more limited in its focus. It makes one's blood alcohol content while driving the pivotal issue.

The legislature has provided that blood tests conducted after suspected drunk drivers have been stopped will be used as evidence of the suspects' blood alcohol contents while driving. See generally 75 Pa.C.S. § 1547 (chemical testing to determine amount of alcohol). In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.

The blood test in this case was not performed until approximately one hour after appellant was stopped. It revealed a blood alcohol content that was only narrowly above the 0.10% level, i.e., 0.114%. The Commonwealth introduced testimony from an expert witness who was the director of the hospital laboratory where appellant's blood test was performed. He stated that the laboratory's blood testing equipment had a margin of error of plus or minus 10%, and that this fact could have meant that appellant's blood alcohol level was as low as 0.104%. He testified also that a person's blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly sixty to ninety minutes after drinking has ceased, and that, thereafter, the level slowly declines. This testimony was uncontradicted.

Appellant testified that he consumed alcohol at a bar just prior to entering his vehicle and driving. He testified that he stopped at the bar for approximately two hours, during which time he consumed four or five "lite" beers. ² He finished the last of these around 9 p.m. and then departed in his vehicle. There is no evidence in the record that contradicts this testimony.

Appellant argues, based upon testimony of the Commonwealth's expert witness, that his blood alcohol level likely peaked sometime after he was stopped, perhaps around 10:10 p.m. when the blood test was performed. Indeed, during cross-examination the expert witness for the Commonwealth stated that, if appellant finished his last drink at 9 p.m., as was appellant's uncontradicted testimony, then his blood alcohol level would probably still have been rising at 10:10 p.m. The expert stated further that, if the level was rising at 10:10 p.m., appellant's blood alcohol level at the time of driving was probably less than 0.10%. He could not determine with any degree of clinical certainty, however, whether the level was in fact rising or falling at 10:10 p.m. In short, there was no evidence upon which the expert could offer an opinion as to whether appellant's blood alcohol level was in fact greater than or equal to 0.10% at the time of driving.

This evidence left the jury free to engage in unbridled speculation as to whether appellant's blood alcohol level was at or above 0.10% at the critical time. It is well recognized, however, that a criminal conviction cannot be based upon mere speculation or conjecture. Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978).

Given the lapse of one hour between appellant's driving and the taking of a blood sample, the small amount by which the test result exceeded the 0.10% level, the 10% margin of error in the test, and the testimony provided by the Commonwealth's expert witness that appellant's blood alcohol level may indeed have been below 0.10% before the test was administered, we do not believe that it was proven beyond a reasonable doubt that appellant's blood alcohol exceeded permissible limits while driving. Appellant's conviction cannot, therefore, be sustained.

Judgment of sentence reversed.

CAPPY, J., files a dissenting opinion which is joined by McDERMOTT, J.

CAPPY, Justice, dissenting.

Until this Court directly addresses the issue of whether the Commonwealth must present expert testimony to relate the blood alcohol test results back to the time of driving, the Courts of the Commonwealth will continue to be besieged with appeals like the one sub judice.

Assuming a lawful arrest and proper blood alcohol testing procedures, I believe that once the Commonwealth has introduced evidence to establish that the defendant's blood...