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SELECTED CASES BY TOPIC
CONTENTS
Vehicle....................................................................................................................... Page 2
Highway/Trafficway.................................................................................................. Page 2
Traffic Stops.............................................................................................................. Page 3
Crashes....................................................................................................................... Page 6
Event Data Recorder.................................................................................................. Page 8
Checkpoints................................................................................................................Page 8
DUI Search and Seizure............................................................................................. Page 10
Actual Physical Control............................................................................................. Page 12
Incapable of Safe Driving (General Impairment)...................................................... Page 12
Probable Cause for Arrest.......................................................................................... Page 13
Implied/Actual Consent............................................................................................. Page 15
Refusal Cases............................................................................................................. Page 16
DUI-Drugs................................................................................................................. Page 18
BAC/BrAC w/in 2 Hours.......................................................................................... Page 20
Admissibility of Breath Test..................................................................................... Page 21
Admissibility of Blood Test...................................................................................... Page 22
Charging Decisions – Crimes Code.......................................................................... Page 24
Sentencing................................................................................................................. Page 25
ARD........................................................................................................................... Page 27
Other Dispositional Alternatives............................................................................... Page 28
DUS/DUI................................................................................................................... Page 29
Restitution.................................................................................................................. Page 29
This digest is designed to address the most common issues that arise in DUI investigation,
charging, and litigation. It is intended as a convenient resource at preliminary hearings,
suppression hearings, etc. For in-depth research, please consult the PDAI/TSRP DUI Manual,
“Investigating, Charging, and Litigating DUI Cases – A Manual for Pennsylvania Prosecutors.”
This digest is updated periodically. For questions contact [email protected]
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VEHICLE
75 Pa. C.S.A. § 102
“Vehicle” Every device in, upon or by which any person or property is or may be transported or
drawn upon a highway, except devices used exclusively upon rails or tracks. The term does not
include a self-propelled wheel chair or an electrical mobility device operated by and designed for
the exclusive use of a person with a mobility-related disability.
Commonwealth v. Noel, 857 A.2d 1283 (Pa. 2004)
Pa. Supreme Ct. majority holds that the former DUI statute does not apply to riders of horses –
Justice Eakin dissents in rhyme.
Commonwealth v. Brown, 620 A.2d 1213 (Pa. Super. 1993)
Bicycle is a “vehicle” in the context of a DUI prosecution.
Kronenbitter v. PA DOT, Bureau of Driver Licensing, 615 A.2d 959 (Pa. Cmwlth. 1992)
Despite fact that driver had been operating a bicycle at the time of his DUI arrest, PennDOT was
correct in suspending his motor vehicle operating privileges upon his conviction.
HIGHWAY/TRAFFICWAY
75 Pa. C.S.A. § 3101(b) explains that serious traffic offenses (including 3802) apply upon
highways and trafficways throughout the Commonwealth.
Highway – The entire width between the boundary lines of every way publicly maintained when
any part thereof is open to the use of the public for purposes of vehicular travel. The term includes
a roadway open to the use of the public for vehicular travel on grounds of a college or university
or public or private school or public or historical park.
Trafficway – The entire width between property lines or other boundary lines of every way or
place of which any part is open to the public for purposes of vehicular travel as a matter of right
or custom.
Commonwealth v. Wyland, 987 A.2d 802 (Pa. Super. 2010)
Roadways within US Air Force base not open to the public as a matter of right or custom, thus
not “trafficways” for the purposes of DUI enforcement.
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Commonwealth v. Zabierowsky, 730 A.2d 987 (Pa. Super. 1999)
Public parking garage where driver takes ticket, and pays fee upon exit is open to the public as a
matter of right or custom and thus is a trafficway for the purposes of DUI enforcement.
Commonwealth v. Cameron, 688 A.2d 1163 (Pa. Super. 1995)
Apartment complex parking lot is a trafficway for the purposes of DUI enforcement.
Commonwealth v. Procter, 625 a.2d 1221 (Pa. Super. 1993)
Mall parking lot is a trafficway for the purposes of DUI enforcement.
Commonwealth v. Baughman, 516 A.2d 390 (Pa. Super. 1986)
“[D]irt track, through a field which was open to the public and occasionally used for vehicular
traffic “is a trafficway for purposes of DUI enforcement.
TRAFFIC STOPS
Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015)
Officer sees vehicle with no license plate lights. He turns is headlights off momentarily at a
distance of 75ft and confirms the lights are out. He conducts a traffic stop and the driver is
DUI. Trial court finds reasonable suspicion for stop (not DUI arrest), but on appeal says there
was no reasonable suspicion in 1925(a) opinion because distance lights must work at is 50ft.
Superior Court reverses finding sufficient probable cause because if the lights were inoperable
at 75ft, they were inoperable at 50ft.
Commonwealth v. Williams, 125 A.3d 425 (Pa. Super. 2015)
An officer may conduct a traffic stop based on reasonable suspicion to investigate violations of
the Department of Transportation Vehicle Equipment and Inspection regulations as a violation
of 75 Pa.C.S. § 4107(b)(2), Unlawful Activities.
Commonwealth. Ibrahim, ____ A.3d _____, 2015 PA Super 231 (Pa. Super. 2015)
Police officer needs probable cause to effect a traffic stop for violation of 75 Pa.C.S. §3308, One-
Way Roadways and Rotary Traffic Islands, which may be established even though the vehicle is
only observed a very short distance. The Court further held that this statute applies to bicycles.
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Commonwealth v. Boyles, 104 A.3d 591 (Pa. Super. 2014)
Campus police officer at State University had no authority to perform off-campus traffic stop
under MPJA Hot Pursuit provisions, because the original violation did not occur on campus
grounds.
Commonwealth v. Brown, 64 A.3d 1101 (Pa. Super. 2013)
Officer observed pickup truck make left turn from “left turn only” lane without using signal.
Based on this observation he stopped the truck and later drugs were seized. Held, traffic stop was
legal. Section 3334 requires signal to be used and contains no exception for “left turn only”
lanes.
Commonwealth v. Farnan, 55 A.3d 113 (Pa. Super. 2012)
Officers observed Defendant drive past his ex-wife’s house while they were investigating a
potential custody problem. Within the preceding 30 days, one of the officers had checked the
Defendant’s Driver’s License status, and found that his license was suspended-DUI related. As
a result the officer stopped Defendant’s vehicle, and found Defendant to be DUI. The Superior
Court held that the stop was supported by reasonable suspicion that Defendant was violating
Section 1543(b). Note: While recent knowledge of suspension is the minimum based on this case,
it is recommended that a brief in car check of the suspect’s license status be run whenever
practical.
Commonwealth v. Busser, 56 A.3d 419 (Pa. Super. 2012)
Officer following Defendant’s vehicle in the outside lane of four lane roadway as an ambulance
approached from the opposite direction in the centermost lane with lights and sirens activated.
There was room to safely pull off to the side of the roadway when the ambulance approached, but
Defendant’s vehicle did not pull over. Officer stopped Defendant’s vehicle for failing to yield to
an emergency vehicle. Defendant was found to be under the influence of alcohol. The Superior
Court held that the officer had probable cause believe Defendant violated Section 3325(a) by
failing to yield the right of way to the oncoming ambulance.
Commonwealth v. Borovichka, 18 A.3d 1242 (Pa. Super. 2011)
Municipal officer heard radio call and notified State Police that he would respond. Parking lot
was located outside the officer’s principal jurisdiction. The officer observed Borovichka sleeping
and attempted to wake him by knocking on the window of the truck. He took no further action. The
trooper arrived within minutes, and eventually placed Borovichka under arrest for suspected
DUI. No violation of MPJA Section 8953(a)(5). The municipal officer acted reasonably,
preserving the status quo until the trooper could arrive.
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Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011)
Traffic stop for objects hanging from rearview mirror was upheld. When asked about the location
of the dice in relation to the windshield, the arresting officer testified “it can obstruct your view
if you had to turn.” Shabazz was found guilty of Drug DUI. Because there was sufficient record
evidence of potential for obstruction, the Superior Court found the stop was supported by
reasonable suspicion.
Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010)
Level of suspicion required to support a motor vehicle stop is determined by whether the stop was
for an investigatable or non-investigatable offense. A vehicle stop for an offense that cannot be
investigated further (i.e. speeding, failure to use turn signal, running a red light, etc.) must be
supported by probable cause. A stop for an offense that requires further investigation (i.e. DUI)
must be supported by reasonable suspicion that the driver is committing an offense. Key point to
take from this decision is that if you are stopping vehicle because you believe the driver is DUI,
you must be able to point to specific facts that, based on your training and experience, lead you
to believe that the motorist is driving under the influence.
Commonwealth v. Anthony, 1 A.3d 914 (Pa. Super. 2010)
Motor vehicle stops based solely on the fact that objects are hanging from a review mirror are not
permissible. In order to be a valid stop, officer must be able to articulate that the object hanging
from the mirror “materially obscured, obstructed or impaired the driver’s vision through the front
windshield” so as to create a safety hazard.
Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010)
A police officer who observes an inoperable center-mounted brake light may legally stop the
vehicle for a violation of Section 4303 (General Lighting Requirements).
Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008)
Section 6308(b) of Vehicle Code, authorizing traffic stops where a police officer has reasonable
suspicion that a violation of the Vehicle Code has occurred, is constitutional.
Commonwealth v. Basinger, 982 A.2d 121 (Pa. Super. 2009)
Police officer had reasonable suspicion to conduct investigatory stop of motorist – officer saw
motorist pull into the path of an oncoming car at such close proximity as to prompt oncoming car
to brake and come to an almost complete stop.
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Commonwealth v. Anthony, 977 A.2d 1182 (Pa. Super. 2009)
Reasonable suspicion found where officer did not observe erratic driving, but based stop on
detailed observations related by named citizen/complainant.
Commonwealth v. Kendall, 976 A.2d 503 (Pa. Super. 2009)
Where car on rural highway pulled over for no apparent reason, officer who stopped, turned on
overhead lights, and approached driver out of concern for “vehicle failure” was involved in a
mere encounter which needed no showing of reasonable suspicion. Driver had open beer in car,
BAC of .14%. Opinion discusses numerous fact patterns and prior decisions.
Pennsylvania v. Bruder, 488 U.S. 9 (1988)
DUI traffic stop, Defendant’s answers to “routine” police questions, field sobriety test
performance, and admissions of drinking not subject to suppression for failure to give Miranda
warnings – Defendant not in custody for purposes of Miranda.
CRASHES
Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014) en banc (Pending in Supreme Court)
Aggravated Assault/DUI convictions upheld where Defendant swerved in front of sober motorist.
Defendant did not crash, but motorist lost control during evasive maneuvers, injuring himself, his
passenger, and two onlookers.
Commonwealth v. Simmen, 58 A.3d 811 (Pa. Super. 2012)
Officer followed tracks from crash scene to Defendant’s house. Defendant had no reasonable
expectation of privacy in open driveway in front of house. Once officer noticed car was damaged
he knocked on the door and spoke with Defendant’s wife. Wife allowed officer to enter the house,
and speak with Defendant. Conviction upheld; no warrant needed to enter driveway, wife
consented to entry into residence, and officer had probable cause to arrest for DUI.
Commonwealth v. Rakowski, 987 A.2d 1215 (Pa. Super. 2010)
PSP Trooper arrived on scene of reported disabled vehicles at 0700 hours. Defendant was found
to be intoxicated and taken for blood testing at 0800 hours. His result was .188%. During an
interview, Defendant told the trooper that his vehicle became disabled at approximately 0610 –
0615 hours. The trooper also noted that he observed no liquor bottles in the vehicle. Evidence
sufficient to establish BAC within two-hours, and conviction for violating Section 3802(c) affirmed.
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Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009)
3801(a)(1) is an “at the time of driving” offense – Commonwealth is not required to provide
proof of Defendant’s non-consumption following crash – circumstantial proof of impairment at
the time of driving, including the occurrence of a crash, is sufficient to sustain a conviction under
3802(a)(1), even if specific time of crash cannot be established.
Commonwealth v. Young, 904 A.2d 987 (Pa. Super. 2006)
Defendant struck a utility pole and fled the scene – a witness gave a general description and was
later able to identify the Defendant – corpus delicti challenged, conviction affirmed – good
general discussion of corpus issues and case law.
Commonwealth v. Friend, 717 A.2d 568 (Pa. Super. 1998)
Driver outside vehicle after crash, officer observed injuries to driver’s face, others in the vicinity
were dressed “like they were ready for bed” – good discussion of corpus rule’s application.
Commonwealth v. Aiello, 675 A.2d 1278 (Pa. Super. 1996)
Police officer had probable cause to suspect driver of DUI. Officer arrived at crash scene, saw
driver behind the wheel with facial injuries. Driver refused medical assistance, “staggered and
was not good on her feet” and admitted to consuming “one or two mixed drinks.” Fact that
driver was not under arrest when asked to submit to testing did not violate driver’s rights to due
process.
Commonwealth v. Hogans, 584 A.2d 347 (Pa. Super. 1990)
Defendant standing near crashed vehicle on its side, other individuals present – Defendant
admitted driving, failed sobriety tests and BAC was .266% – Defendant’s admissions not barred
by corpus delicti rule, despite two witnesses who saw Defendant as passenger in the vehicle earlier
the same day – corpus delicti may be proved circumstantially.
Commonwealth v. Verticelli, 706 A.2d 820 (Pa. 1988)
Closely-related crimes exception to corpus rule applied in the context of DUI and leaving the
scene of a crash – NOTE: In holding that the crimes of leaving the scene and DUI were “closely-
related,” the Court emphasized that each crime shared an element – this reasoning was
abrogated by Commonwealth v. Taylor, 831 A.2d 587 (Pa. 2003) – Taylor actually expands the
application of the exception by not requiring “closely-related” offenses to share an element, and
should not over-rule the application of the exception to DUI and leaving the scene.
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EVENT DATA RECORDERS
Federal Driver Privacy Act 2015 (S.766 — 114th Congress)
The law applies to any data retained by an EDR installed in a vehicle, and that the data belongs
to the owner of the vehicle or, in the case of a leased vehicle, the lessee of the vehicle in which
the event data recorder is installed. It does not matter when the vehicle was made. The Act
provides that data recorded or transmitted by an EDR may not be accessed by a person other
than the vehicle's owner or lessee. There are some exceptions:
As authorized by a court or judicial or administrative authority, subject to the standards
for admission into evidence required by that court or other administrative authority;
If pursuant to written, electronic, or recorded audio consent of the vehicle owner or
lessee;
To carry out certain investigations or inspections authorized by federal law, subject to
limitations on the disclosure of personally identifiable information and the vehicle
identification number;
To determine the need for, or facilitate, emergency medical response in response to a car
accident;
For traffic safety research, so long as the personally identifiable information of the
owner or lessee and the vehicle identification number is not disclosed.
Commonwealth v. Safka, 95 A.3d 304 (Pa. Super. 2014)
Data recovered from an event data recorder (EDR) in a vehicle is not novel scientific evidence
and, thus, did not violate the Frye test for admissibility of scientific evidence in prosecution for
homicide by vehicle. The Court found that the technology had existed for almost 40 years, had
been adopted by major automobile manufacturers, and had been recognized as an acceptable
tool used by accident reconstruction experts.
** This case is currently on appeal at the PA Supreme Court where the issue under review
is limited to a procedural question not the admissibility of EDR evidence.**
CHECKPOINTS
Commonwealth v. Marconi, 64 A.3d 1036 (Pa. 2013)
Sheriffs do not have the authority to independently establish and conduct sobriety checkpoints
under Section 6308(b) of the Vehicle Code.
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Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008)
Checkpoint supervisor's decision to suspend operations while traffic backup eased was
permissible under Tarbert and Blouse, and was not an application of "unfettered discretion" as
to whom to stop, on the part of the officers at the checkpoint – other situations discussed, such as
the need for emergency vehicles to move through checkpoint – supervisor is in the best position
to respond to such exigencies.
Commonwealth v. Yastrop, 768 A.2d 318 (Pa. 2001)
DUI checkpoint, conducted in substantial compliance with the Tarbert/Blouse guidelines, did not
violate Pennsylvania Constitution.
Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super. 2015) (en banc)
DUI conviction reversed. Defendant was stopped during a seat belt checkpoint, found to be under
the influence of marijuana. At the suppression hearing, the checkpoint administrator did not
provide sufficiently specific data to support the timing and location of the seat belt checkpoint.
In Re J.A.K., 908 A.2d 322 (Pa. Super. 2006)
Mandatory passenger restraint (seatbelt) enforcement found to be an appropriate justification for
a checkpoint.
Commonwealth v. Rastogi, 816 A.2d 1191 (Pa. Super. 2003)
Checkpoint DUI conviction affirmed where Defendant alleged reliance upon out-of-date
information in location decision, and faulty notice – court stated that police are not required to
produce statistics in support of location decision, and need not publish notice of checkpoint in
media to satisfy Tarbert/Blouse guidelines.
Commonwealth v. Scavello, 734 A.2d 386 (Pa. 1999)
Driver who made legal U-turn to avoid going through checkpoint was followed and stopped -- no
reason for stop other than perceived checkpoint avoidance – Court held that failure to proceed
through checkpoint, in and of itself, provides no basis for police intervention.
Commonwealth v. Kendall, 767 A.2d 1092 (Pa. Super. 2001)
Defendant lived beyond checkpoint and had already entered the checkpoint before attempting to
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turn left from center lane – officers directed him back to the lane where checkpoint was operating
–Defendant claimed he was “stopped” because he tried to avoid the checkpoint, but trial court
found that he was merely directed to stay in the lane where the checkpoint was taking place –
Superior Court affirmed – once a motorist enters a checkpoint, they may not bypass the
checkpoint.
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992)
"[T]he conduct of the roadblock itself can be such that it requires only a momentary stop to allow
the police to make a brief but trained observation of a vehicle's driver, without entailing any
physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the
existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance
or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be
significantly curtailed by the institution of certain safeguards. First the very decision to hold a
drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved
for prior administrative approval, thus removing the determination of those matters from the
discretion of police officers in the field. In this connection it is essential that the route selected for
the roadblock be one which, based on local experience, is likely to be travelled by intoxicated
drivers. The time of the roadblock should be governed by the same consideration. Additionally,
the question of which vehicles to stop at the roadblock should not be left to the unfettered
discretion of police officers at the scene, but instead should be in accordance with objective
standards prefixed by administrative decision."
DUI - SEARCH AND SEIZURE
Commonwealth v. Loughnane, ___A.3d___, 2015 Pa Super 245 (Pa. Super 2015)
Vehicle involved in hit and run fatality was located in a driveway visible from a public roadway.
No owner could be located near the vehicle or home. Vehicle seized without a warrant and later
searched after a warrant was received. Held that pursuant to Gary (if there is probable cause) the
mere mobility of vehicle creates exigent circumstance to conduct a warrantless search. The Court
also held that the driveway is not curtilage and there is no expectation of privacy.
Commonwealth v. Nguyen, 116 A.3d 657 (Pa. Super 2015)
Traffic stop for speeding. The trooper observed the driver to be acting in a way consistent with
someone involved in illegal activity. He also ran the record of the passenger and found numerous
prior drug convictions. Upon completing the traffic stop he told the driver they were free to leave,
but reengaged and asked for consent to search. The passenger was found with drugs and money.
The Superior Court found that under the totality of the circumstances this was a second
investigative detention but there was no reasonable suspicion.
11
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)
The Supreme Court of Pennsylvania adopted the federal automobile exception to the search
warrant requirement. Accordingly, in Pennsylvania, a law enforcement officer may now conduct
a warrantless search of a motor vehicle as long as probable cause exists that the motor vehicle
contains contraband or evidence of a crime. No exigency is required to support this warrantless
search beyond the inherent mobility of the motor vehicle.
Key Points
1. Probable cause is still required before a vehicle may be searched. If you have probable
cause to search a vehicle, you have the right to search the trunk of the vehicle, but you do
not have the right to search the person of passengers in the vehicle.
2. If the vehicle is towed or impounded and not promptly searched, some district attorneys,
in an abundance of caution, may recommend that a search warrant be obtained. Please
consult with your local district attorney for the policy in your county.
3. If you do not have probable cause to believe that contraband or evidence of a crime may
be found in a vehicle, and your only authority to search is incident to the arrest of the
driver, your access to the interior of the vehicle is prohibited once the driver has been
removed from the vehicle. Arizona v. Gant remains the governing law regarding searches
of a vehicle incident to the arrest of the driver.
Arizona v. Gant, 556 U.S. 332 (2009)
Police may search the wingspan of the arrestee where they reasonably believe the arrestee “could
have access[] car at the time of the search or that evidence of the offense for which he was arrested
might [be] found therein.”
Commonwealth v. Gatlos, 76 A.3d 44 (Pa. Super. 2013)
Driver crashed, lost consciousness, and required medical attention. In an effort to identify the
driver a responding officer looked through her purse, noticing two cigar boxes while locating
driver’s ID. Two days later the same trooper located a burnt cigar tip (blunt) on the floor of the
car while checking for insurance and registration documents. Testing confirmed the presence of
marijuana. Held, both the cigar boxes and the blunt were properly seized during permissible
inventory searches.
Commonwealth v. Miller, 56 A.3d 424 (Pa. Super. 2012)
After traffic stop, officers detected alcohol intoxication. One officer observed an unopened bottle
of Heineken in SUV’s interior. Defendant was eventually arrested, and the officer retrieved the
Heineken bottle. In doing so, the officer noticed two other Heineken bottles – one empty and one
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3/4 full and cold. Held, the seizure of the bottles was permissible under the Plain View Doctrine.
Once inside the SUV to obtain the first bottle, the officer had a lawful right of access to the other
two bottles observed in plain view.
ACTUAL PHYSICAL CONTROL
Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010)
Defendant found sleeping vehicle in front of a store that did not serve alcoholic beverages –
Engine was running, headlights were illuminated, and there was a cold six-pack of beer on the
floor behind the driver’s seat – Reasonable inference was that Defendant drove there.
Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008) en banc
Car off road, straddling railroad track – engine running, drive wheels spinning – Defendant
asleep in back seat –APC may be proved wholly through circumstantial evidence.
Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005)
Car parked in the middle of outdoor basketball court – engine running – Defendant asleep in
driver's seat, open 40 oz. bottle in car.
Commonwealth v. Lehman, 820 A.2d 766 (Pa. Super. 2003)
Car perpendicular to roadway, in parking lot "as if poised to pull out"– engine running, headlights
on, radio playing – Defendant passed out in driver's seat, slumped across center toward passenger
seat.
Commonwealth v. Yaninas, 722 A.2d 187 (Pa. Super. 1998)
Car parked on berm of rural highway – engine running, parking lights on – Defendant asleep in
the driver's seat with a can of beer between his legs and two more in the passenger seat.
INCAPABLE OF SAFE DRIVING (General Impairment)
Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011)
Evidence of erratic driving is not necessary to support a conviction for DUI-General impairment.
Rather, the Commonwealth may prove that a person is incapable of driving safely based on their
performance of field sobriety tests. Here, Mobley coasted through a stop sign in full view of the
13
arresting officer, and impairment was observed during FSTs.
Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009)
PA Supreme Court held that Section 3802(a)(1) is an “at the time of driving offense.” Evidence
that Defendant was under the influence of alcohol to a degree that rendered him incapable of safe
driving prior to a crash was established through his admission that he was on his way home from
dinking at a bar, his failure of field sobriety tests, his appearance, as well as his strikingly high
BAC. The Court also noted that the Commonwealth did not have to prove that he did not drink
after the crash.
Commonwealth v. Smith, 904 A.2d 30 (Pa. Super. Ct. 2006)
Opinion evidence of officers relating performance on field sobriety tests to alcohol-induced
inability to drive safely is admissible – Defendant drove onto a grassy median, drove in the wrong
lane of traffic, smelled of alcohol, was unsteady on her feet, was combative, failed the field sobriety
tests, and refused a blood alcohol test.
Commonwealth v. Hartle, 894 A.2d 800 (Pa. Super. 2006)
Defendant ran stop sign, had strong odor of alcoholic beverage, was unsteady on his feet – he
refused FST and blood test. Officers' observations and opinion of intoxication were sufficient to
sustain conviction.
Commonwealth v. Gruff, 822 A.2d 773 (Pa. Super. 2003)
Evidence sufficient where Defendant was driving at a high rate of speed, had bloodshot eyes and
a “strong odor” of alcohol, admitted drinking four 16-oz. beers before driving, and refused blood
test.
PROBABLE CAUSE FOR ARREST
Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015)
Traffic stop based on inoperable license plate lights. No erratic or bad driving. Officer observed
signs of intoxication had defendant do SFSTs. Based on that the defendant was arrested for DUI.
Trial court found that there is no connection between SFSTs and impaired driving, no explanation
of reliability of SFST, SFSTs are not administered standardized, and there may have been other
explanations for poor SFST performance. Superior Court held that erratic driving is not a “super-
factor, much less one determinative of DUI,” SFSTs are grounded in theories which link an
individual’s lack of coordination and loss of concentration with intoxication, and the fact or other
explanations of performance does not make probable cause determination unreasonable.
14
Commonwealth v. Jones, 121 A.3d 524 (Pa. Super. 2015)
Defendant was the sole occupant in a vehicle stopped for a suspended registration. Officer
smelled “strong odor of burnt marijuana” upon contact with Defendant. Officer arrested
Defendant on suspicion of DUI-D and blood testing showed 7.7 ng/ml Delta-9 THC and
metabolites. Defendant argued “mere odor” of marijuana could not form probable cause for
arrest. Superior Court disagreed with Defendant and affirmed conviction and sentence.
Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super. 2013) Affirmed per curiam by SCOPA.
HGN evidence may be used at a suppression hearing where defendant challenges the officer’s
probable cause for arrest. Note: this was a drug-DUI case where HGN was critical to arrest
decision. The driver was unable to perform other SFSTs because of prior injuries.
Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008) en banc
“Probable cause to arrest exists when the facts and circumstances within the police officer's
knowledge and of which the officer has reasonably trustworthy information are sufficient in
themselves to warrant a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested."
Commonwealth v. Angel, 946 A.2d 115 (Pa. Super. 2008)
Defendant challenged reasonable suspicion for stop and probable cause for arrest – Court found
that officer could take into account Defendant's refusal to perform SFST when determining
whether probable cause exists.
Commonwealth v. Semuta, 902 A.2d 1254 (Pa. Super. 2006)
Probable cause to arrest found where: Defendant was driving without headlights, stopped at an
unsafe location (after passing several safe spots), had the odor of an alcoholic beverage, eyes
were glassy and bloodshot, admitted to consuming alcoholic beverages, exhibited 3 clues on WAT,
2 clues on OLS, and a PBT showed the presence of alcohol.
Commonwealth v. Dommel, 885 A.2d 998 (Pa. Super. 2005)
Defendant fled from crash scene after striking witness's car – witness contacted 911 dispatcher
and followed Defendant to his residence, giving ongoing description of Defendant's erratic
driving, including running red lights – police arrived as Defendant was getting out of his truck,
Defendant appeared “trance-like” despite officer's attempts to hail him, and proceeded to enter
residence – officer followed and placed him under arrest for suspected DUI – Held, arrest was
15
authorized and supported by both probable cause and exigent circumstances – probable cause
based upon witness's description of crash and subsequent running of red lights communicated to
officer by 911, along with officer's observation of “trance-like” condition of Defendant.
IMPLIED/ACTUAL CONSENT
Section 1547 of the Vehicle Code provides for a drivers implied consent to a chemical test were
officers have probable cause to believe that the person is “in violation of Section 1543(b)(1.1)
(relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving
under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a
motor vehicle not equipped with ignition interlock).” 75 Pa. C.S.A. § 1547(a)(1).
Section 3755 of the Vehicle Code provides that “[i]f, as a result of a motor vehicle accident, the
person who drove, operated or was in actual physical control of the movement of any involved
motor vehicle requires medical treatment in an emergency room of a hospital and if probable
cause exists to believe a violation of [S]ection 3802 (relating to driving under influence of alcohol
or controlled substance) was involved, the emergency room physician or his designee shall
promptly take blood samples from those persons and transmit them within 24 hours for testing to
the Department of Health or a clinical laboratory licensed and approved by the Department of
Health and specifically designated for this purpose. . . . Test results shall be released upon request
of the person tested, his attorney, his physician or governmental officials or agencies.” 75 Pa.
C.S.A. § 3755(a).
Nardone v. Commonwealth of PA DOT BDL, ___A.3d___, 141 MAP 2014 (Pa. 2015)
Police Officer selects the type of testing to be administered under 75 Pa.C.S. 1547, Chemical
testing to determine amount of alcohol or controlled substance, and refusal of the suspect to
submit to that test will be a “refusal” even if the suspect offers an alternate test. The Opinion of
the Court explicitly leaves open the question of “whether subsections 1547(a) and (b) implicitly
confer a right to alternative testing where a motorist asserts that an ostensible injury or condition
prevents him from submitting to an official request for chemical testing.”
Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013)
Officer responding to serious crash requested driver to provide blood sample to “rule out alcohol
or /drugs.” Driver was not under arrest and was told he could refuse. The driver agreed to the
test and was later charged and convicted of HBV/DUI. The Pa. Supreme Court held that officer
was not required to warn driver that results of test could be used against him in a criminal case.
Sprecher vs. PA DOT, BDL, 100 A.3d 768 (Pa. Cmwlth. 2014)
Civil license suspension appeal for refusal was denied by the trial court. On appeal driver argued
16
that Pennsylvania’s Implied Consent Law (75 Pa.C.S. 1547) was unconstitutional, in light of the
US Supreme Court’s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013). Held, Section 1547
does not violate the 4th Amendment.
Commonwealth v. Gorbea-Lespier, 66 A.3d 382 (Pa. Super. 2013)
Section 1547 provides for consent to “one or more” tests. After crash, suspect was arrested for
DUI. Officer read O’Connell warnings on the way to hospital for blood draw. DA’s office
requested a second draw to help determine whether BAC was rising or falling. Without re-reading
O’Connell the officer requested and obtained second blood draw. Trial Court suppressed second
test result finding no consent, but Superior Court reversed.
Commonwealth v. Barton, 690 A.2d 293 (Pa. Super. 1997)
“Our courts have found that, together, [S]ections 1547 and 3755 [of the Vehicle Code] comprise
a statutory scheme which, under particular circumstances, not only imply the consent of a driver
to undergo chemical or blood tests, but also require hospital personnel to withdraw blood from a
person, and release the test results, at the request of a police officer who has probable cause to
believe the person was operating a vehicle while under the influence.”
Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001).
Where a BAC test is conducted for independent medical purposes and not under the requirements
of Section 3755, police may not obtain the results of those tests without a search warrant.
REFUSAL CASES
Commonwealth v. Olsen, 82 A.3d 1041 (Pa. Super. 2013)
Officer’s testimony that he attempted to read DL-26 warnings to uncooperative suspect was
sufficient to prove refusal beyond a reasonable doubt. Court distinguished Xander, (below)
because the officers in Xander did not attempt to warn the suspect.
Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013)
Prosecution must prove that a refusal occurred beyond a reasonable doubt for increased penalty
to apply. Thus, prosecution must also prove that suspect was warned properly of consequences
of refusal (DL-26 warnings given).
17
Commonwealth v. Xander, 14 A.3d 174 (Pa. Super. 2011)
Belligerent Defendant refused testing and created such a ruckus that officers did not read DL-26
warnings to her before charging her with general impairment DUI. She was convicted of 3802(a)
and appealed her sentence. Held, enhanced penalties for refusal did not apply where Defendant
was not given DL-26 warnings by officers. Conviction upheld, but remanded for resentencing.
Commonwealth v. McCoy, 975 A.2d 586 (Pa. 2009)
Defendant not entitled to consult with attorney before deciding whether to submit to request for
chemical testing. Defendant's Sixth Amendment/Art. 1, Section 9 right to counsel did not attach
at the time of the request for testing, even though refusal may result in additional criminal
exposure – request is an evidence-gathering stage as opposed to a "critical stage in the
proceedings" under right-to-counsel analysis.
Commonwealth v. Homer, 928 A.2d 1085 (Pa. Super. 2007)
Subsection 1547(e) does not condition the admissibility of refusal evidence on the sufficiency of
the warnings provided to the motorist – the trier of fact may consider the refusal and any
explanations given by the defense in determining the weight to be given to the fact of refusal.
Solomon v. Pa. DOT, Bureau of Driver Licensing, 966 A.2d 640 (Pa. Cmwlth. 2009)
At 0300 hours the officer discovered Defendant asleep in the reclined driver seat of his car within
walking distance of a bar. It was cold and snowing, the engine was running, and the area where
the car was parked was commonly used for parking by patrons of the bar. Defendant was of
course intoxicated and refused a chemical test. Based on these circumstances, the Commonwealth
Court found that the officer did not have reasonable
grounds to believe Defendant was in actual physical control of the movement of his vehicle, and
as a result rescinded Defendant’s suspension for the chemical test refusal.
Weems v. Pa. DOT, Bureau of Driver Licensing, 990 A.2d 1208 (Pa. Cmwlth. 2010)
Commonwealth Court finds that license suspension for refusal was justified – numerous issues
challenged including officer's reasonable suspicion for stop based upon estimate of speed and
Municipal Police Jurisdiction Act) MPJA claims – good discussion of what constitutes refusal for
license suspension purposes.
18
DUI – DRUGS
Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011)
There is no requirement that expert testimony be used in every drug DUI prosecution under
3802(d)(2). Defendant was convicted at trial on charge of 3802(d)(2). She was driving unsafely
and admitted to taking prescription drugs. A blood test indicated the presence of valium and its
metabolite nordiazepam. The arresting officer testified he believed her impairment was caused
by drugs. The defense argued (unsuccessfully) that expert testimony was necessary to “link”
officer’s observations with prescription drug impairment.
Commonwealth v. Tucker, 103 A.3d 796 (Pa. Super. 2014)
Agg Assault/DUI-D case, involving “Bath Salts” (MDPV). Impairment proved by mechanism of
crash, observations of officers on scene, blood test results, and expert testimony. Toxicologist
testified that MDPV is a stimulant, but that it can cause lethargy as it metabolizes. This was
crucial, since officers observed “lethargic” behavior at the scene.
Commonwealth v. Wilson, 101 A.3d 1151 (Pa. Super. 2014)
“Two-Hour Rule” does not apply to Drug DUI offenses. The Legislature, by omitting language
“within two hours” from 3802(d), intended Drug DUI to be an “at the time of driving” offense.
Commonwealth v. Graham, 81 A.3d 137 (Pa. Super. 2013)
Experienced officer’s observations of drug and alcohol impairment, along with Defendant’s
admissions regarding prescription drug use, are sufficient to prove 3802(d)(3)charge. No need
for expert testimony, under Griffith (above).
Commonwealth v. Claffey, 80 A.3d 780 (Pa. Super. 2013)
3802(d)(2) conviction upheld on procedural grounds. However, the opinion discusses the
significance of Griffith (above). Defendant was convicted of driving while impaired by Soma
(carisoprodol).
Commonwealth v. Tarrach, 42 A.3d 342 (Pa. Super. 2012)
Superior Court upheld Drug DUI conviction under 3802(d)(2). Defendant was impaired by
numerous prescription drugs, all within “therapeutic range.”
19
Commonwealth v. Hutchins, 42 A.3d 302 (Pa. Super. 2012)
Marijuana DUI convictions upheld, both under 3802(d)(1) AND 3802(d)(2). Officer’s
observations of impairment and Defendant’s admissions to smoking marijuana were sufficient to
uphold the 3802(d)(2) conviction, even though the court found that the blood test results by
themselves could not prove impairment without expert testimony.
Commonwealth v. LaBenne, 21 A.3d 1287 (Pa. Super. 2011)
Defendant crossed over the center line into oncoming lane 4 times, and remained partially in the
wrong lane for 150-200 feet before returning to the proper lane. Upon contact the trooper
immediately noticed that LaBenne’s eyes were red and glassy and her pupils were
constricted. Her speech was slurred, and her movements were sluggish. After failing field
sobriety tests, she was taken for blood testing which revealed the presence of morphine and
hydrocodone. Forensic toxicologist said symptoms were consistent with an individual under the
influence of opiates. Evidence was clearly sufficient to sustain the verdict.
Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010)
Expert testimony is not needed to establish that Defendant was under the influence of a drug or
combination of drugs that rendered them incapable of driving safely under Section 3802(d)(2)
where the drug is an illicit one such as cocaine or marijuana.
Commonwealth v. Williamson, 962 A.2d 1200 (Pa. Super. 2008)
Defendant was charged with 3802(d)(2) general impairment – drugs. Urine test result was
admissible to corroborate evidence of impairment, even though test results did not specify an
amount of drug detected in urine. NOTE: for charging under 3802(d)(1), ONLY blood testing is
admissible.
Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007)
Evidence of impairment is not necessary to establish conviction under 3802(d)(1)(i). Defendant’s
blood test showed the presence of marijuana metabolites. Despite evidence that he may not have
been impaired, conviction under per se law was upheld.
Commonwealth v. Roser, 914 A.2d 447 (Pa. Super. 2006)
Defendant claimed that he had ingested gasoline and bug and tar remover prior to driving. He
had also consumed relatively small amount of beer. Conviction under 3802(d)(3), general
impairment alcohol and drugs was upheld. Definition of “drug” found at 35 Pa. C.S. 780-102
20
was affirmed: “any substance, other than food, intended to affect the function of the human body.”
Commonwealth v. Yedinak, 676 A.2d 1217 (Pa. Super. 1996)
Officer may testify to his opinion, based on his training and experience that an individual is under
the influence of a controlled substance. Here, officer could testify that Defendant was under the
influence of marijuana based on his observations of Defendant as informed by his narcotics
training, prior drug arrests, and knowledge of the effects of marijuana.
BAC/BrAC WITHIN TWO HOURS
Commonwealth v. Houck, 102 A.3d 443 (Pa. Super. 2014)
Defendant was charged with 3802(c), after a breath test result of .17 was reported. The defense
attempted to dispute the breath instrument’s accuracy. The verdict slip gave the jury the option
of finding a lower BrAC, and the jury found Defendant guilty of 3802(b). Held, 3802(b) is a
lesser-included offense, and the jury’s verdict was affirmed. Also, Trooper had reasonable
suspicion to stop Defendant based upon erratic driving recorded by patrol vehicle’s dashboard
camera.
Commonwealth v. Teems, 74 A.3d 142 (Pa. Super. 2013)
PA State Trooper arrived on scene of a disabled—damaged wheel—vehicle on I-81. Defendant
exhibits classic signs of severe intoxication, and cannot even provide a PBT. Following a blood
test, BAC found to be .143%. Court noted that applying the reasoning of Segida, supra, there
was sufficient evidence to support the General Impairment Charge. With respect to the BAC,
Court noted that the location—travel lane of a metropolitan portion of I-81—was sufficient to
establish that the crash must have occurred within two-hours.
Commonwealth v. Rakowski, 987 A.2d 1215 (Pa. Super. 2010)
PA State Trooper arrived on scene of reported disabled vehicles at 0700 hours. Defendant was
found to be intoxicated and taken for blood testing at 0800 hours. His result was .188%. During
an interview, Defendant told the trooper that his vehicle became disabled at approx. 0610 – 0615
hours. The trooper also noted that he observed no liquor bottles in the vehicle. Evidence sufficient
to establish BAC taken within two-hours, and conviction for violating Section 3802(c) affirmed.
Commonwealth v. Sibley, 972 A.2d 1218 (Pa. Super. 2009)
Blood test result was .102% – Defendant called lab director who testified that the equipment used
had a +/- 3% accuracy range – when presented with "margin of error" or coefficient of variation
21
evidence, it is a question for the trier of fact whether to accept test result – coefficient of variation
goes to weight, not sufficiency of evidence.
Commonwealth v. Duda, 923 A.2d 1138 (Pa. 2007)
Statute is Constitutional – Commonwealth not required to prove BAC at the time of driving –
Legislature's intent was to prohibit driving after imbibing enough alcohol to elevate the BAC to
.08 or higher within two hours of driving – There is no Constitutional, statutory, or common-law
right to drink and drive.
Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987)
Breath test result .102% under former statute – trier of fact could conclude that this was a reliable
result – Defendant convicted at trial, sentence affirmed.
ADMISSIBILITY OF BREATH TEST
Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013)
Breath instrument calibration records were not testimonial for purposes of 6th Amendment
confrontation. Prosecution did not have to call the officer who calibrated the instrument where
breath test operator testified regarding the Defendant’s actual breath test and its results.
Commonwealth v. Barlow, 776 A.2d 273 (Pa. Super. 2007)
Sufficient evidence to establish 20-minute observation period mandated under 67Pa.C.SA.
§ 77.24(a).
Commonwealth v. Mickley, 846 A.2d 686 (Pa. Super. 2004)
Breath test admissible where it took four attempts to obtain a reading. First attempt failed because
Defendant failed to give a sufficient sample, second attempt failed because instrument aborted
due to RF interference, third attempt failed because instrument picked up alcohol on Defendant’s
breath during pre-test internal checks, finally results successfully obtained on fourth try.
Instrument needs to be placed out of service “only if failed or malfunctioned during a calibration
inspection test, during an actual test of a suspect, or if the simulation test exceeded the prescribed
deviation during a calibration test. None of these events occurred in this case.”
22
Commonwealth v. Stoops, 723 A.2d 184 (Pa. Super. 1998)
Breath test result found inadmissible where printout of Intox 3000 failed to state "air blank"
performed before each consecutive breath test. Eakin, J. dissented, finding evidence in the record
that air blank had nonetheless occurred.
Commonwealth v. Mabrey, 594 A.2d 700 (Pa. Super. 1991)
Breath test result inadmissible because instrument's prior tests had differed by more than .020,
and instrument had not been taken out of service as regulations require.
Commonwealth v. Diulus, 571 A.2d 418 (Pa. Super. 1990)
Defendant blew once, refused to blow again – first test result held inadmissible because
regulations require two consecutive tests.
ADMISSIBILITY OF BLOOD TEST
Missouri v. McNeely, 133 S.Ct. 1552 (U.S. 2013)
United States Supreme Court does not permit warrantless, non-consensual blood draws unless
exigent circumstances can be shown. The dissipation of alcohol in the body does not by itself
constitute exigent circumstances.
Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015)
Blood results suppressed where Defendant had been transported to hospital for “medical
clearance” before officer arrived to seek blood. Before officer arrived Defendant was given a
sedative – officer unable to obtain consent read O’Connell warnings in non-responsive
Defendant’s presence, and directed staff to draw blood. Superior Court, following McNeely,
found no exigencies in the record and affirmed suppression order.
Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013)
Where numerous scientists and technicians had worked on a blood sample, reviewing toxicologist,
who certified the test results, was only necessary witness for 6th Amendment confrontation
purposes. The reviewing toxicologist’s certification was the “testimonial” statement to be
confronted, even though others had actually performed the work.
Commonwealth v. Landis, 89 A.3d 694 (Pa. Super. 2014)
23
3802(c) conviction reversed where hospital technician could not explain the lab’s 10% “margin
of error.” BAC was reported as .164% but hospital lab had only tested defendant’s sample once,
rather than testing twice and reporting the lower value.
Commonwealth v. Haight, 50 A.3d 137 (Pa. Super. 2012)
Defendant’s “supernatant” blood test result was .181%. At trial the prosecution introduced
testimony asserting no need to convert the result to “whole blood.” Defense expert testified
regarding possible conversion factors, and trial court opted to apply a factor based upon that
testimony. Defendant was convicted of 3802(b), Superior Court affirmed.
Commonwealth v. Karns, 50 A.3d 158 (Pa. Super. 2012)
Defendant’s “supernatant” blood test result was .189%. He was convicted of 3802(c) and
3802(a). On appeal, the Superior Court affirmed the general impairment charge, but vacated the
per se 3802(c) conviction. The Court found the per se charge unsupported by sufficient evidence
because no whole-blood conversion factor was presented by the Commonwealth.
Commonwealth v. Shaffer, 40 A.3d 1250 (Pa. Super. 2012)
Phlebotomist was not a necessary witness at DUI trial where testifying officer had witnessed blood
drawn from Defendant. Officer testified about the packaging of the blood samples and his signing
the lab request form. Defendant did not have constitutional right to confront the phlebotomist.
Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010)
Actual analyst who tested blood sample must testify at trial, unless the witness is unavailable and
the defense has had a prior opportunity to conduct a full and fair cross-examination. Defendant’s
right to confront witnesses was violated where lab supervisor introduced test results as a business
record.
Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super. 2008)
If a facility is approved by the Department of Health and listed in the Pennsylvania Bulletin, then
the trial court may take judicial notice that the facility satisfies the requirements of Section 1547.
Only specific allegations of testing errors require the Commonwealth to provide evidence of the
test's reliability other than by reference to the Pennsylvania Bulletin.
24
Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002)
Serum/plasma result may support the Commonwealth's burden at the preliminary hearing/habeas
stage -- some evidence of conversion to whole blood necessary for conviction at trial.
Commonwealth v. Demark, 800 A.2d 947 (Pa. Super. 2002)
“BAC tests are basis and routine and, therefore, highly reliable. . . . Only specific allegations of
testing errors, and not general, boiler plate objections to the admission of the test results, will
require the Commonwealth to provide evidence of the test's reliability other than by reference t0
the Pennsylvania Bulletin.
Commonwealth v. Newsome, 787 A.2d 1045 (Pa. Super. 2001)
Evidence sufficient to convict where serum test admitted and whole blood conversion factors from
1.10 to 1.35 applied – even the lowest whole-blood equivalent was greater than per se limit.
Commonwealth v. Demis, 588 A.2d 30 (Pa. Super. 1991)
Defendant not entitled to preservation of blood sample for independent testing, despite having
made request through attorney prior to sample's destruction.
CHARGING DECISIONS – CRIMES CODE
Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014)
Defendant who attempted to flee from police while under the influence of marijuana ran a red
light at high speed, struck and killed two boys, and continued to flee. Held, the evidence was
sufficient to support the jury’s finding of malice. Third Degree Murder convictions affirmed.
Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super. 2012)
Defendant fled police at high rate of speed, went through a red light without braking, and collided
with another vehicle causing serious injuries to occupants of that vehicle. Defendant then fled on
foot, and was ultimately found with a bag of marijuana. Subsequent blood tests showed that
Defendant was under the influence of marijuana at the time of the crash. Additionally, Defendant
was involved in three prior high speed chases with police officers. Defendant was charged with
and convicted of Aggravated Assault under the Crimes Code. Based on the foregoing facts, the
Superior Court found that the Commonwealth had established the malice required for an
Aggravated Assault conviction under the Crimes Code.
25
Commonwealth v. Fabian, 60 A.3d 146 (Pa. Super. 2013)
Defendant was in charge of maintaining school vans for used by a transportation company. After
a driver reported that the brakes were not working correctly, Defendant was assigned to examine
the van and conduct necessary repairs. That same day, after the van was cleared by Defendant,
the brakes failed resulting in the death of a passenger. The investigation revealed brake defects
that should have kept the van in the garage, and would have been noticed had Defendant done a
proper inspection. Defendant was charged with and convicted of involuntary manslaughter. The
Superior Court noted that his actions need not be the sole or immediate cause of death if they are
a direct and substantial factor. Here, it was reasonable for a jury to conclude that had he done
his job, the brakes would not have failed and the accident resulting in death would not have
happened.
Commonwealth v. Hutchins, 42 A.3d 302 (Pa. Super. 2012)
Defendant was involved in a two-vehicle crash that resulted from him turning in front of an
oncoming vehicle. Defendant had three young children with him and admitted to having smoked
marijuana earlier in the day. A subsequent blood test showed the presence of the marijuana
metabolite in Defendant’s system. Defendant was charged with and convicted of
DUI, REAP and Possession of Marijuana. REAP conviction was reversed. In order to establish
REAP in a DUI case, there must be evidence or reckless conduct beyond mere intoxication.
Com. v. Dunphy, 20 A.3d 1215 (Pa. Super. 2011)
Edward Dunphy was observed leaving a nightclub at a high rate of speed. His truck struck a
pedestrian and sped away. The victim, Hanna Cintron, was struck with such force that her body
came to rest 178 feet from the initial point of impact. Dunphy’s BAC was .183%. Evidence was
sufficient to show malice required for 3rd Degree Murder. Dunphy had been travelling at nearly
twice the speed limit at the time of the crash. Nonetheless, he continued to accelerate after impact,
said he was “trying to make a light.” In addition, there were no climatic conditions or road
obstructions that could have contributed to the crash. And, the fact that Dunphy fled the crash
scene provided circumstantial evidence of his state of mind before the crash.
SENTENCING
Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super 2015)
The Superior Court vacated a flat four month sentence for the defendant’s 20th driving under
suspension conviction as violating the min-max rule in 42 Pa.C.S. § 9756. The case was remanded
for resentencing.
26
Commonwealth v. Taylor, 104 A.3d 479 (Pa. 2014)
Pennsylvania Supreme Court majority, interpreting 75 Pa.C.S. 3814(2), finds a Drug and Alcohol
assessment is mandated for repeat offenders prior to sentencing. The majority found the defendant
did not waive an assessment here, because one was not made available to him. However, the
majority did not decide whether assessment can be waived as a matter of law.
Commonwealth v. Wilson, 111 A.3d 747 (Pa. Super. 2015)
“Child in Car enhancement (M1 if child in the vehicle at time of offense) found at 75 Pa.C.S.
3803(b)(5) controls issue of maximum penalty for 1-st offense conviction. Defendant, guilty of
1st-offense 3802(b), properly sentenced to 12 months’ probation because standard five-year
maximum applies to the M1.
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) Issue Resolved by amendment to 75
Pa. C.S. 3803.
Under (former) Section 3803(a)(1), the maximum sentence for a General Impairment DUI –
Second Offense is 6 months incarceration, despite the fact that the statute grades the offense as a
misdemeanor of the first degree.
Commonwealth v. Tanner, 61 A.3d 1043 (Pa. Super. 2013)
Sentence for underlying DUI charge merges with Homicide by Vehicle/DUI and Aggravated
Assault/DUI for sentencing purposes. Remanded for Resentencing.
Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012) en banc
Application of enhanced offense gravity score (OGS) for Homicide by Vehicle (HBV) with a DUI
conviction did not violate constitutional equal protection principles. Defendant was convicted of
3802(d)(1)(iii) DUI and HBV. He was not charged with HBV while DUI because only inactive
metabolites of cocaine were found in his blood. Defense argued (unsuccessfully) that death must
be caused by the DUI in order for enhanced OGS to apply.
Commonwealth v. Pombo, 26 A.3d 1155 (Pa. Super. 2011)
Conviction under NY DWAI statute constitutes a “prior offense” under Section 3806(a). DWAI
was ‘substantially similar’ to offenses under 3802. Trial court erred by disregarding DWAI
conviction, case remanded for re-sentencing as a third offense.
27
Commonwealth. v. Bowers, 25 A.3d 349 (Pa. Super. 2011)
Defendant on ARD committed a second offense. His motion to withdraw from ARD was granted
and he proceeded to trial on offense 1. After being acquitted on offense 1, he pleaded guilty to
offense 2. Held, acceptance of ARD on offense 1 counted as a “prior offense” despite the
subsequent acquittal on that charge.
Commonwealth v. Shawver, 18 A.3d 1190 (Pa. Super. 2011)
A DUI offender who commits another DUI offense while on ARD, commits a second offense
regardless of whether his participation in the ARD program is terminated.
Commonwealth v. Haag. 981 A.2d 902 (Pa. 2009)
Section 3806(b) reflects a recidivist philosophy – for purposes of grading and sentencing, a
conviction on offense A must precede arrest on offense B for offense A to count as a "prior
offense."
Commonwealth v. Zampier, 952 A.2d 1179 (Pa. Super. 2008)
Defendant was admitted into ARD program outside the 10-year look-back period, but ARD was
subsequently revoked – He then pleaded guilty to the original offense and was sentenced within
10 years of subsequent arrest – Held, conviction date for original offense was date of sentencing,
not date of ARD acceptance – Defendant properly sentenced as a second offense.
Commonwealth v. Love, 957 A.2d 765 (Pa. Super. 2008)
Defendant admitted into ARD program on offense A, then arrested on offense B three months after
ARD acceptance – ARD revoked because of arrest on offense B – acceptance of ARD was
conviction for purposes of Section 6308(b) – offense B sentenced properly as a second offense
even though at the time or arrest, Defendant had not been sentenced on offense A.
ARD
Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985)
"[We] do not believe that only prior offenses related to drunk driving are relevant to admission to
an ARD program. A relevant factor in moving a particular defendant's admission to ARD is
whether he is the type of person who can benefit from the treatment offered by an ARD program,
not whether he has been in trouble with alcohol and an automobile before. This judgment, in turn,
rests in the sound discretion of the district attorney."
28
Commonwealth v. LaBenne, 21 A.3d 1287 (Pa. Super. 2011)
District Attorney’s denial of ARD not an abuse of discretion. DA was concerned that Defendant
needed more lengthy supervision, and Defendant never provided verification of drug
rehabilitation.
Commonwealth v. Corrigan, 992 A.2d 126 (Pa. Super. 2010)
Trial Court rejected Commonwealth's motion for Defendant's admission into ARD without
conducting hearing – trial court relied upon its own published set of guidelines for ARD admission
– Defendant found guilty and appealed, Commonwealth agreed with Defendant – Held, trial court
erred by not conducting hearing on Commonwealth's motion, court's guidelines questioned – case
remanded.
Commonwealth v. Stranges, 579 A.2d 930 (Pa. Super. 1990)
Trial court admitted DUI Defendant into ARD over Commonwealth's objection, Commonwealth
appealed – District Attorney's policy prohibiting ARD for DUI defendants where crash involved
another occupied vehicle found to be a proper exercise of prosecutorial discretion – case
remanded.
OTHER DISPOSITIONAL ALTERNATIVES
42 Pa.C.S. Section 9763: Sentence of County Intermediate Punishment
Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008) en banc
Sentence on second offense to be served under qualified restrictive intermediate punishment,
under house arrest with electronic monitoring and drug and alcohol testing is permissible, so long
as the program is a qualified county IPP program and Appellant is a qualified “eligible offender.”
Commonwealth v. Poncala, 915 A.2d 97 (Pa. Super. 2006)
Mandatory sentencing provisions of Section 3804(c)(3) override the “general and discretionary”
intermediate punishment provisions of 42 Pa.C.S. Section 9804(b)(5). (Limited by Williams,
supra, to instances where the defendant is not an "eligible offender" under the IPP statute and/or
the county program does not meet the standards for IPP set forth in 204 Pa. Code ,§ 303.12).
29
DUS/DUI
Commonwealth v. Kriegler, ___A.3d___, 2015 PA Super 251 (Pa. Super. 2015)
An individual with an occupational limited license as result of a prior DUI conviction may
be charged with a violation of §1543(b) if they are driving outside of the conditions
allowed by 75 Pa.C.S. § 1553, Occupational Limited License.
Commonwealth v. Jenner, 681 A.2d 1266 (Pa. 1996)
“[We] hold that once a driver is notified that his license is suspended as a result of a conviction
for driving under the influence under 75 Pa.C.S. § 3731, he is subject to the enhanced sentencing
provisions of § 1543(b) for the duration of any prior periods of suspension or revocation until the
completion of the DUI-related suspension. The effective dates provided by the Department of
Transportation in such cases are simply for the purpose of determining when the DUI-related
suspension is completed."
Commonwealth v. Harden, 103 A.3d 107 (Pa. Super. 2014)
Evidence of actual notice of DUI-related suspension was sufficient. Defendant’s PennDOT
driving history indicated that notice was mailed in advance of relevant traffic stop. Additionally,
Defendant could produce no license or photo identification at the time of the stop. Defendant also
had a long history of license suspensions.
Commonwealth v. Carr, 887 A.2d 782 (Pa. Super. 2005)
Trial Court did not err by allowing arresting officer to introduce Defendant's driving record by a
JNET printout obtained by the officer's superior through the state computer system.
Commonwealth v. Nuno, 559 A.2d 949 (Pa. Super. 1989)
“When a person receives notice that their operating privilege is or will be suspended or revoked
for a D.U.I. related offense, that person is subject to the penalties of § 1543(b). That person will
be subject to the penalties of § 1543(b) throughout any current suspension or revocation and any
subsequent suspensions or revocations until the end of their D.U.I. related suspension or
revocation.”
RESTITUTION
Commonwealth v. Stradley, 50 A.3d 769 (Pa. Super. 2012)
DUI Defendant who caused crash was responsible for restitution in the amount ordered, even
30
though his insurance company had already paid the crash victim and was not seeking
reimbursement. Under 18 Pa.C.S. 1106, the insurance company is to be paid any amount it has
already compensated the victim.
Commonwealth v. Lebarre, 961 A.2d 176 (Pa. Super. 2008)
Trial Court did not err by ordering Defendant in HBV/DUI to make restitution to the estate of the
victim killed in the crash – in the amount of $50,947, which, in addition to $3,000 for funeral
expenses included the sum of $47,947, the amount of a lien for Medicaid payment for medical
expenses attributable to treatment to be paid to the Department of Public Welfare.
Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007)
Trial Court erred by refusing to consider restitution claim where victim of DUI crash had obtained
a settlement through Defendant's insurer – "The victim could no more release Appellee from a
potential sentence of restitution than from a potential sentence of incarceration or probation. All
such matters are within the sentencing court's authority and duty. It was not for the victim to
circumscribe the criminal court's powers or obligations."
