Com. v. Rishel

• Decision Date: 13 April 1995
• Citation: 441 Pa.Super. 584,658 A.2d 352
• Parties: COMMONWEALTH of Pennsylvania v. Lori RISHEL, Appellant.
• Court: Pennsylvania Superior Court

Page 352

658 A.2d 352

441 Pa.Super. 584

COMMONWEALTH of Pennsylvania v. Lori RISHEL, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 2, 1995.

Filed April 13, 1995.

Joseph K. Cottrell, Williamsport, for appellant.

Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before TAMILIA, HUDOCK and FORD ELLIOTT, JJ.

TAMILIA, Judge.

Appellant, Lori Rishel, takes this appeal from the judgment of sentence of February 11, 1994 imposing a term of imprisonment of five (5) days to twenty-three (23) months, and a fine of $25. Appellant was found guilty by a jury of two counts of driving under the influence of alcohol, ¹ and the trial court adjudicated appellant guilty of the summary offense of failing to drive at a safe speed. ²

On appeal, appellant first argues one of the statutes under which she was found guilty of driving under the influence violates her due process rights, and is therefore unconstitutional. Appellant claims part of the driving under the influence statute, 75 Pa.C.S. § 3731(a)(5)(i), as well as the statutory defense provided, 75 Pa.C.S. § 3731(a.1), impermissibly shifts the burdens of proof and persuasion from the Commonwealth to the defendant. The statute provides as follows:

§ 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[.]

(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.

Id. Appellant claims "[i]nsofar as the Commonwealth must establish the .10% element of the offense, the defense set forth in subsection (a.1) clearly operates to negate an essential element of the offense." We disagree.

As an initial matter, we note the heavy burden of persuasion upon one who challenges the constitutionality of an Act of Assembly and the strong presumption of constitutionality of that legislative enactment. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Barnes, 427 Pa.Super. 326, 629 A.2d 123 (1993). A statute will not be invalidated unless there is a clear, palpable and plain demonstration that the statute violates a constitutional provision. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992).

Subsections (a)(5) and (a.1) are the most recent additions to the driving under the influence statute. P.L. 1411, No. 174, § 12, Dec. 18, 1992, effective February 16, 1993. As such, this Court has not been presented with a challenge to the constitutionality of the new enactments. ³ However, we find an analogous situation exists in section (a)(4) of the statute. Section (a)(4) provides that a person "shall not drive, operate or be in actual physical control of the movement of any vehicle ... while the amount of alcohol by weight in the blood of the person is 0.10% or greater...." 75 Pa.C.S. § 3731(a)(4). Soon after its enactment, the validity of section (a)(4) was challenged and it was found to be constitutional. Mikulan, supra.

In upholding the validity of section 3731(a)(4), the Mikulan Court found the statute was not overly broad or vague in setting an arbitrary figure, 0.10%, for the blood alcohol level beyond which motor vehicle operation is prohibited, and further found the per se Motor Vehicle Code violation contained in section 3731(a)(4) rationally and reasonably related to achieving the compelling interest in protecting the health and safety of motorists from drunken drivers. Id. 504 Pa. at 250, 470 A.2d at 1342. Moreover, the Court found "no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving and there is little doubt that the legislature could, if it so chooses, prohibit driving within a certain reasonable time after drinking any amount of alcohol (so long as the prohibition was rationally related to the legitimate legislative purpose)." Id. at 254, 470 A.2d at 1344. Absent a more specific claim from appellant, we find the holding in Mikulan equally applicable to our analysis of section 3731(a)(5)(i), and we find the statute constitutionally valid.

Appellant does claim specifically, however, that the statutory defense to section 3731(a)(5), codified at 75 Pa.C.S. § 3731(a.1), is unconstitutional because it negates an essential element of the offense of driving under the influence. Again, we disagree.

In order to obtain a conviction under section 3731(a)(4), the Commonwealth must prove two elements: (1) that the defendant was driving, operating or in control of a vehicle, and (2) that the defendant had an amount of alcohol in the blood that was equal to or greater than 0.10% by weight. Commonwealth v. Wanner, 413 Pa.Super. 442, 605 A.2d 805 (1992). Section (a)(5)(i) adds a third element: (3) ... as determined by a chemical test of a sample of the defendant's breath, blood or urine obtained within 3 hours after the person drove, operated or was in control of the vehicle.

In a prosecution under section 3731(a)(5)(i), the defendant is provided with a statutory defense allowing him to prove, by a preponderance of evidence, that he consumed alcohol after he drove, operated or was in control of a vehicle, and that the amount of alcohol in the blood would not have exceeded 0.10% at the time of the test but for such consumption. 75 Pa.C.S. § 3731(a.1). This defense in no way relieves the Commonwealth of its burden of proving beyond a reasonable doubt each of the above three elements of section 3731(a)(5)(i), and does not negate any of those elements. The Commonwealth has the heavy burden of proving beyond a reasonable doubt that appellant operated/controlled the vehicle, while having a blood alcohol level of .10% by weight, as established within three hours of operating/controlling the vehicle. § 3731(a)(1). In contrast the defendant is permitted to rebut this evidence by only a preponderance of the evidence that he (1) consumed alcohol after driving and controlling the vehicle and (2) his blood alcohol level would not have exceeded .10% at the time of the test but for such consumption.

By its very nature, alcohol ingestion results in a change in the blood alcohol level dependent upon various factors including body weight, food ingestion, length of time between ingestion and testing and number and frequency of drinks depending on their alcoholic content. As stated above, use of alcohol while driving is theoretically capable of zero toleration by the legislature because of its inherently dangerous consequences. At this point in time, regulating the danger and establishing a reasonable and fair standard of proving violation of the law, which has arbitrarily been placed at driving while having a blood alcohol level of .10%, the legislature has bracketed this blood level as falling within three hours of the time it can be established beyond a reasonable doubt that a party was operating or in control of the motor vehicle. This is necessary to give reasonable notice as to the charge, what the Commonwealth must prove and what the defendant can put forth in the way of mitigation or in affirmative defense. Appellant argues that the burden should never shift from the Commonwealth to prove all elements of a charge, beyond a reasonable doubt, however, she contends that addition of section 3731(a)(1) unconstitutionally shifts the burden to the defendant to disprove her guilt. Such is not the case.

It has long been the law that despite apparently overwhelming evidence of various crimes which standing alone would establish proof beyond a reasonable doubt, affirmative defenses in the nature of insanity, intoxication, self-defense automatism, coercion, alibi and duress are available to a defendant. (Black's Law Dictionary 55 (5th ed. 1979).) Obviously such defenses are not legally sufficient by mere allegation, and the law demands that they be established by at least the minimum level of reliability acceptable which is a preponderance of the evidence. It is noted that defenses in these class of cases are unique in that they deal with states of minds or physical/mental conditions that lie within the particular purview of a defendant's knowledge and capacity to raise a reasonable doubt. The result of producing such facts is to negate the effect of the Commonwealth's prima facie showing of guilt beyond a reasonable doubt. The classic example is the case in which a person charged with theft of property carries the burden of showing possession of the property was without knowledge that it was stolen. Barnes v. U.S., 412 U.S. 837, 846 n. 11, 93 S.Ct. 2357, 2363 n. 11, 37 L.Ed.2d 380, 387 n. 11 (1973). We have long held that the burden of proving an affirmative defense which does not negate an element of an offense may be placed on the defendant. Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Shenkin, 337 Pa.Super. 517, 487 A.2d 380 (1985). In this respect, we find section 3731(a.1) analytically similar to other statutory defenses embodied in the Crimes Code. ⁴ cf. 18 Pa.C.S. §§ 3102, Mistake as to age, 3923, Theft by extortion, (b) Defenses.

Even more to the point are the legal principles and supporting case law which hold that logic and the ends of justice require that a defense, particularly where statutorily imposed as an exception, be proved by the defendant. Where the facts relating to an...