TRAFFIC SAFETY

CASE LAW DIGEST EDITED: JANUARY 19, 2017

David J. Drumheller, TSRP

ddrumheller@pdaa.org

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SELECTED CASES BY TOPIC

CONTENTS

Vehicle....................................................................................................................... Page 2

Highway/Trafficway.................................................................................................. Page 2

Traffic Stops.............................................................................................................. Page 3

Crashes....................................................................................................................... Page 7

Event Data Recorder.................................................................................................. Page 8

Checkpoints................................................................................................................Page 9

DUI Search and Seizure............................................................................................. Page 11

Actual Physical Control............................................................................................. Page 14

Incapable of Safe Driving (General Impairment)...................................................... Page 14

Probable Cause for Arrest.......................................................................................... Page 15

Implied/Actual Consent............................................................................................. Page 17

Refusal Cases............................................................................................................. Page 19

DUI-Drugs................................................................................................................. Page 20

BAC/BrAC w/in 2 Hours.......................................................................................... Page 22

Admissibility of Breath Test..................................................................................... Page 23

Admissibility of Blood Test...................................................................................... Page 24

Charging Decisions – Crimes Code.......................................................................... Page 26

Sentencing................................................................................................................. Page 28

ARD........................................................................................................................... Page 30

Other Dispositional Alternatives............................................................................... Page 31

DUS/DUI................................................................................................................... Page 32

Restitution.................................................................................................................. Page 33

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 Impaired Driving Cases – A Manual for Pennsylvania Prosecutors.” This digest is updated periodically. For questions contact ddrumheller@pdaa.org

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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. Lees, 135 A.3d 185 (Pa. Super. 2016) Parking spots that are owned by an individual in a private parking lot adjacent to their home is not a trafficway. However, the Commonwealth prevailed establishing a prima facie case of DUI

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where the evidence presented was conflicting as to whether the spot was in fact owned by the defendant. 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. 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. Slattery, 139 A.3d 221 (Pa. Super. 2016) Officer’s mistake of law was not objectively reasonable when no actual crime had been committed. All evidence following the traffic stop was properly suppressed by the trial court. 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.

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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, 127 A.3d 819 (Pa. Super. 2015) Police officer needs probable cause to affect 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. 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.

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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. 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. To be a valid stop, officer must be able to articulate that the object hanging from the

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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. 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.

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CRASHES Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014) en banc 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. (SCOPA dismissed Allowance of Appeal as improvidently granted) 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. 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.

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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.

EVENT DATA RECORDER 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;

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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. Commonwealth v. Safka, 141 A.3d 1239 (Pa. 2016)

Justice Baer, writing for a three-judge majority (Justice Wecht recused himself with Justices Donohue and Dougherty dissenting), analyzed the procedural history and the relevant rules and law holding that the trial court did not abuse its discretion in reopening the case to allow both parties to address the court’s concern about the weight and admissibility of the event data recorder evidence. Specifically, the Majority noted the dual role of the judge in a bench trial as both finder-of-fact and gatekeeper of evidence. The Majority also noted the timing of the defense motion in limine also made it problematic for the trial judge to make a ruling.

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. 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.

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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 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.

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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. Randolph, ___A.3d ___, 2016 PA Super 253 (Pa. Super. 2016) Trooper found a hidden compartment inside of minivan during a consent search of a vehicle following a traffic stop. After completing the traffic stop the driver consented to a search of the vehicle. After finding a hidden compartment welded into the frame of the vehicle the trooper impounded the vehicle and sought a search warrant. The Superior Court on appeal reversed the trial courts denial of suppression finding that although the initial consent search was valid the subsequent search warrant did not rise to the level of probable cause for two main reasons. First, the police dog did not alert when it sniffed the area where the compartment was located. Second, Corporal Hanlon failed to explain how his “training and experience” led him to recognize that the compartment was “commonly used to transport guns, drugs and U.S. currency.” Therefore “his claim of “knowledge and experience” was an empty phrase that failed to tilt the scales toward probable cause.” Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super 2016) Distinguished the holding in Loughnane dealing with curtilage. Using the reasoning from Florida v. Jardines, 133 S.Ct. 1409 (2013), the Court reasoned that curtilage extends to the area “immediately surrounding and associated with the home.” Continuing the analysis, the Court determined that while the vehicle subject to the search in this case was in the curtilage, the search was nevertheless proper applying Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994)(holding police officers have the authority to enter the curtilage for the purpose of conducting an investigation).

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Commonwealth v. Loughnane, 128 A.3d 806 (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. (Allowance of Appeal granted – Scheduled for argument March 2017) Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008) (en banc) Facts gathered during valid traffic stop may be utilized to justify investigatory detention occurring after officer has indicated that defendant is free to leave. 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. In the Interest of: A.A, a Minor, 149 A.3d 354 (Pa. Super. 2016) Defendant subject to an investigative detention following a completed traffic stop argued that pursuant to Nguyen no probable cause existed because the officer could not consider the evidence learned prior to the end of the traffic stop. The Court found Kemp (below) to be binding and held that the officer “possessed reasonable suspicion to conduct the second detention of Appellant.” The court reviewed the facts known to the officer from the start of the encounter past the end of the initial stop through to the arrest. 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.

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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 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.

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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 arresting officer, and impairment was observed during SFSTs.

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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 SFSTs 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.

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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

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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 driver’s 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). Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) A warrantless breath test is a proper search incident to a DUI arrest, but a warrantless blood test is not. Any implied consent law that criminalizes the refusal of chemical testing is coercive and any subsequent blood test is unlawful. Commonwealth v. Evans, ___A.3d___, 2016 PA Super 293 (Pa. Super. 2016) Defendant consented to a blood draw after being read the DL26 form which advised him of enhanced sentencing penalties if he refused. The Superior Court ordered the case to be remanded for a determination of voluntariness of consent based on the totality of the circumstances in light of the Court’s holding that Birchfield applies to the case. Nardone v. Commonwealth of PA DOT BDL, 130 A.3d 738 (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

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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 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.

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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). 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. McCoy, 895 A.2d 18 (Pa. Super. 2006)

The implied consent statute does not require that a motorist's consent to a chemical test be informed, but does require that a motorist's refusal be informed. 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.

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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.

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.

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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.” (Note: the focus in these cases should be on the effect of the drugs on the individual’s ability to operate a vehicle NOT on the range of the drugs found in the blood) 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.

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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 a level of drug detected. NOTE: For charges 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 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

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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 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.

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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.” 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.

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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. (Note: SCOPA argument held September 14, 2016 – Decision pending) 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 performed the work. Commonwealth v. Landis, 89 A.3d 694 (Pa. Super. 2014) 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.

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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. 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.

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CHARGING DECISIONS – CRIMES CODE Commonwealth v. Diehl, 140 A.3d 34 (Pa. Super. 2016). Defendant charged with third degree murder following crash that killed a fire chief directing traffic around another crash scene. Commonwealth successfully admitted evidence of defendant’s prior DUI where he had to attend alcohol highway safety school to prove malice (conscious disregard for a known risk). Commonwealth v. Palmer, 146 A.3d 1281 (Pa. Super. 2016) Evidence that a defendant was using inhalants immediately prior to a fatal crash with prior knowledge that she could black out and become unconscious supported the requisite malice for Third Degree Murder and Aggravated Assault Convictions. (Note: Allowance of Appeal Granted December 5, 2017) 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. 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

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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. Commonwealth 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. Smith, ___A.3d___, 2016 PA Super 264 (Pa. Super. 2016) In affirming decision to not apply deadly weapon enhancement the Superior Court that there was no indication that Appellee used the car for any reason other than conveying himself and his passengers even though the victim suffered permanent injuries. In doing so the Court distinguished the facts of this case with those of Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (en banc). Commonwealth v. Solomon, ___A.3d___, 2016 PA Super 259 (Pa. Super. 2016) Superior Court concluded that the SUV driven by the defendant was an instrument likely to produce death or serious bodily injury and thus constituted a deadly weapon. The SUV became a deadly weapon when the defendant drove it in reverse through an eight-foot-wide opening directly at a person who was standing less than fifteen feet behind him.

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Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016) The Superior Court used the date the amendment to 3806 dealing with the DUI lookback period was signed by the Governor not the date the law went into effect as determinative of ex-post facto. Here the defendant committed the DUI after the law was signed but before its effective date. 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. 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. 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 for enhanced OGS to apply.

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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. 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. 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 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."

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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. Popielarcheck, ___A.3d___. 2016 PA Super 276 (Pa. Super. 2016) The Court held, “that where a sentencing court sentences a DUI defendant to County Intermediate Punishment (“CIP”) pursuant to 42 Pa.C.S. § 9763, the sentencing court is not required to impose a mandatory maximum sentence pursuant to 75 Pa.C.S. § 3804(d).” The Court reasoned, “Appellee was not sentenced pursuant to Chapter 38; she was sentenced under an alternative sentencing scheme to CIP as authorized in Chapter 97 of our Sentencing Code. Therefore, neither the mandatory minimum nor maximum provisions of our DUI statute apply and the sentence imposed is not illegal.” 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.”

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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).

DUS/DUI

Commonwealth v. Ball, 146 A.3d 755 (Pa. 2016) The defendant in this case was originally charged with DUS-DUI, but after a hearing, the MDJ found him guilty of the lesser-included offense of operating a motor vehicle while his license was suspended. The defendant appealed for a trial de novo at which time the Commonwealth sought to reinstate the original higher charge. The trial court permitted this finding that by requesting a trial de novo, the defendant had waived any double jeopardy claim. The Superior Court reversed and the Commonwealth brought this appeal arguing that the prohibition against double jeopardy is not implicated where a defendant voluntarily subjects himself to further prosecution. The Supreme Court affirmed the Superior Court’s determination that double jeopardy barred re-trial on the higher-level offense in the Court of Common Pleas as the MDJ had acquitted the defendant of DUS-DUI. However, the Supreme Court reversed the Superior Court’s holding that the defendant was entitled to complete discharge. The case was remanded for trial de novo on the lesser-included offense for which the defendant was convicted. Commonwealth v. Kriegler, 127 A.3d 840 (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

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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 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."