COMMONWEALTH of Pennsylvania, Appellant, v. Bradley G. DUDA, Appellee.
Supreme Court of Pennsylvania.
May 31, 2007.
923 A.2d 1138
Argued Sept. 11, 2006.
A criminal defendant should not be made to pay for the ineffectiveness of attorneys who fail to read the applicable rules of procedure, raise obvious challenges to questionable exercises of discretion, or seek reconsideration of apparently harsh sentences unsupported by record explanation. Restoration of appellate rights is the proper remedy where a defendant has been deprived of appellate review because of ineffective assistance of counsel. Halley, 582 Pa. at 171, 870 A.2d at 801; Liebel, 573 Pa. at 385, 825 A.2d at 636. Therefore, I would affirm the order of the Superior Court and remand the matter to the sentencing court so that Appellee may raise his challenge to the sentence issued. I respectfully dissent.
Justice FITZGERALD joins this dissenting opinion.
Leonard J. Berger, Jr., Esq., for Bradley G. Duda.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.
OPINION
Justice SAYLOR.
In this direct appeal, we consider the constitutionality of a provision of Pennsylvania‘s DUI statute that prohibits driving after having consumed enough alcohol to elevate one‘s blood alcohol concentration to a certain level within two hours after driving.
On August 21, 2004, at 12:32 a.m., a Pittsburgh police officer was dispatched to the scene of a two-car accident. He arrived at the scene two minutes later and spoke to Appellee, who had been driving one of the vehicles. In doing so, he noted a moderate odor of alcohol about Appellee and observed that his eyes appeared “glassy” and that he had a staggered gait. The officer administered several field sobriety tests which Appellee failed to perform to his satisfaction. Accordingly, Appellee was arrested and transported to police headquarters for breath testing. At 1:33 a.m., approximately one hour after the officer‘s arrival at the accident scene, Appellee took a breathalyzer test, which revealed a blood-alcohol content (BAC) of 0.081 percent.
Appellee was charged by information with misdemeanor DUI counts under
§ 3802. Driving under influence of alcohol or controlled substance
(a) General impairment.—
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual‘s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
After pleading not guilty, Appellee filed an omnibus pretrial motion, inter alia, challenging the constitutionality of
In its opinion, the trial court found
To understand the trial court‘s reasoning and the parties’ present arguments, it is helpful to undertake a brief review of the historical background underlying this case. DUI statutes have existed in Pennsylvania since at least 1909.4 See generally Commonwealth v. Ullman, 204 Pa.Super. 145, 148, 203 A.2d 386, 387 (1964). In 1976, the offense was defined in the newly-enacted Motor Vehicle Code, see Act of June 17, 1976, P.L. 162, No. 81, as “driving any vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving.”
Although this latter provision—known as an “illegal per se” law—was subsequently upheld against a due process void-for-vagueness challenge, see Commonwealth v. Mikulan, 504 Pa. 244, 256, 470 A.2d 1339, 1345 (1983), litigation ensued concerning the manner and propriety of establishing a 0.10 percent BAC at the time of driving premised upon post-driving chemical testing. The reason is that there is necessarily a delay between an accident and the arrival of police at the scene, or between the moment a vehicle is stopped by the police and the time the driver is subjected to chemical testing for purposes of determining his BAC level. See generally Commonwealth v. Speights, 353 Pa.Super. 258, 263-64, 509 A.2d 1263, 1266 (1986); see also
Ultimately, the Superior Court settled on an interpretation of
On the other hand, this Court found the evidence insufficient to convict in a matter where a blood test performed one hour after driving revealed a BAC only slightly above 0.10 percent, the defendant had not been driving erratically, and the Commonwealth‘s expert witness testified that the laboratory equipment used to perform the test had a ten percent margin of error. See Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); see also Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) (filed the same day as Jarman, and similarly finding the evidence insufficient to sustain an (a)(4) conviction where the defendant‘s BAC level was determined to be slightly above 0.10 percent one hour and fifty minutes after driving, but the Commonwealth‘s medical expert‘s testimony was ambiguous as to whether it was at least 0.10 percent when driving).
In Jarman, Mr. Justice Cappy, now Chief Justice, joined by former Justice McDermott, filed a dissenting opinion in which he set forth his view of the difficulties involved in the majority‘s approach:
In the case sub judice, the expert called by the Commonwealth testified that alcohol reaches its peak in the bloodstream within 60-90 minutes after consumption; that it was not possible to tell, on the basis of a single blood test, whether the blood alcohol was rising or falling; and that he could not say with clinical certainty what appellant‘s precise blood alcohol content was at the actual time of driving. However, due to the defendant‘s Fifth Amendment right not to give evidence against himself, the Commonwealth cannot and should not be able to compel the defendant to relate
when he drank, how much he drank, and when he consumed his last drink. Without this information, no expert will be able to ascertain whether the defendant‘s blood alcohol was rising or falling at the time of the blood alcohol test. Thus, if we require the Commonwealth to present expert evidence in a case charged under the statute, we are levying an impossible burden on the Commonwealth to prove its case.
Jarman, 529 Pa. at 99-100, 601 A.2d at 1232. Thus, in Justice Cappy‘s view, the Commonwealth should be deemed to have made out a prima facie case of guilt through introduction of the BAC test results performed some time after the defendant ceased driving, but the defendant should also remain free to rebut the prosecution‘s case by presenting expert evidence tending to show that his BAC was actually below 0.10 percent at the time of driving.6 Moreover, because Jarman and Modaffare provided little firm guidance as to when expert relation-back testimony was necessary to sustain an (a)(4) conviction, it seemed probable that litigation over this question would inevitably follow.7
The General Assembly, unsatisfied with this state of affairs, see Commonwealth v. Barud, 545 Pa. 297, 304 n. 2, 681 A.2d 162, 165 n. 2 (1996), amended the law in late 1992 to add subsection (a)(5), which became Pennsylvania‘s second “illegal
§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving
* * * * *
(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; or
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person‘s breath, blood or urine, which sample is: (i) obtained within three hours after the person drove, operated or was in physical control of the vehicle; or (ii) if the circumstances of the incident prevent collecting the sample within three hours, obtained at a reasonable additional time after the person drove, operated or was in actual physical control of the vehicle.
(a.1) Defense.—It shall be a defense to a prosecution under subsection (a)(5) if the person proves by a preponderance of the evidence that the person consumed alcohol after the last instance in which he drove, operated or was in actual physical control of the vehicle, and that the amount of alcohol by weight in his blood would not have exceeded 0.10% at the time of the test but for such consumption.
In Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996), this Court was called upon to determine whether this new provision,
III.
In the case at hand, the trial court relied heavily upon Barud in striking down
The Commonwealth argues that the trial court erred by concentrating exclusively on the driver‘s BAC level while driving. In the Commonwealth‘s view, the General Assembly sought, through enactment of the new DUI statute, to unequivocally shift the focus of the prohibited conduct to the act of driving after drinking excessively, irrespective of the driver‘s actual BAC level while driving. According to the Commonwealth, this new statutory scheme eliminates the presumptions involved in the statute struck down in Barud because the fact-finder is no longer required to draw any inference concerning the defendant‘s BAC level at the moment of driving; rather, to show that the defendant drank “too much” and then drove in violation of the statute, the prosecution need only demonstrate that the individual‘s BAC was at least 0.08 percent within a time certain after driving. The Commonwealth maintains that the Legislature acted within its authority in specifically prohibiting driving after drinking excessively, as opposed to having a certain BAC level while actually driving, as such proscription targets a public danger that undoubtedly follows from drinking excessively and then driving, particularly as the driver is unable to know with certainty when he will reach his destination due to the possibility of construction, heavy traffic, accidents, or other roadway obstructions. See Brief for Appellant at 23. The Commonwealth additionally proffers that the new statute is salutary in that it: (a) eliminates “the battle of the experts in a quest for pinpointing the BAC level” at the moment of driving; and (b) removes the prior statute‘s “deadly loophole” which made criminal liability depend upon fortuitous circumstances such as whether the driver was able to hurry home
Appellee counters that
IV.
Barud‘s holding was premised upon its interpretation of the legislative purpose underlying
While it is clear that the intent of the amendment was to cure those instances in which a person‘s BAC barely exceeded the legal limit at the time of testing, the statute fails to provide for any mechanism, as do many other jurisdictions, whereby the accused may either: (1) rebut the state‘s presumption that their BAC at the time of testing accurately reflected their BAC at the time of driving or (2) produce competent evidence that he or she was below the legal limit at the time of driving (other than consumption after the fact) thereby requiring the Commonwealth to prove beyond a reasonable doubt that the defendant‘s BAC exceeded the legal limit at the time of driving. As currently enacted, however, the statute does not even require any proof that the person had a BAC above the legal limit at the time of driving, thereby criminalizing conduct which has not been declared criminal by the legislature.
Barud, 545 Pa. at 307, 681 A.2d at 166. It is apparent from the above that the Court understood that the General Assembly had no intention of defining as a separate and independent offense the activity of driving after drinking excessively irrespective of one‘s BAC level at the time of driving.
This understanding of Barud‘s central premise was recognized in Commonwealth v. McCurdy, 558 Pa. 65, 73, 735 A.2d 681, 685 (1999), a case in which this Court considered whether the defendant‘s conviction of DUI under
Here, the jury specifically found that the Commonwealth established the offense of driving under the influence pursuant to subsection (a)(1). Having established that offense, the unconstitutionality of an alternate method of proving the offense under subsection (a)(5) did not undermine the proof supportive of subsection (a)(1).
Id. at 74, 735 A.2d at 686 (emphasis added); see also id. (“[T]he import of subsection (a)(5) was merely to permit the jury to rest its finding of a driving under the influence violation upon blood alcohol evidence bearing a temporal connection to the offense.“). Thus, by confirming that the various provisions of
The present matter differs in that
V.
This does not end our inquiry, however, as we must assess whether Appellee‘s due process vagueness and over-
A. Vagueness
The due process void-for-vagueness doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Commonwealth v. Bullock, 590 Pa. 480, 488, 913 A.2d 207, 212 (2006) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)); see Commonwealth v. Mayfield, 574 Pa. 460, 467, 832 A.2d 418, 422 (2003). Although Appellee‘s argument concerning the statute‘s purported vagueness lacks substantial clarity (and, at times, appears to conflate the doctrines of vagueness and overbreadth), his primary contention seems to be that it is unclear when the crime occurs—at the time of drinking, driving, or BAC testing. He distinguishes Mikulan by noting that, in that matter, it was evident that the actus reus occurred at the time of actually driving while under the influence.
Although the enactment under review does allow for a delay between driving and breath or blood testing, a close examination of the statute‘s text reveals that the offense occurs when the person drives after drinking a substantial quantity of alcohol. As set forth above,
For the reasons set forth at length in Mikulan, 504 Pa. at 252-56, 470 A.2d at 1343-45, statutes that prohibit driving after drinking by reference to a threshold BAC level are not unconstitutionally vague. Accord Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121, 129 (1983); Burg v. Municipal Court, 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732, 739-42 (1983); Roberts v. State, 329 So.2d 296, 297 (Fla.1976); Lester v. State, 253 Ga. 235, 320 S.E.2d 142, 144 (1984); State v. Rose, 312 N.C. 441, 323 S.E.2d 339, 341-42 (1984); Greaves v. State, 528 P.2d 805, 807-08 (Utah 1974); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320, 1324 (1982). But cf. State v. Baker, 720 A.2d 1139, 1148-49 (Del.1998) (following Barud and finding a DUI law similar to the one at issue in Barud to be unconstitutionally vague). This conclusion of non-vagueness is not altered merely because the Legislature has moved the specific BAC threshold from the moment of driving to any time within a defined interval after
The only difference between the two statutes is that under former (a)(4), a person had to gauge when he had consumed a sufficiently large quantity of alcohol so that when he drove he would have the prohibited blood-alcohol level, whereas under subsection (a)(5), a person must judge when he has consumed a sufficiently large quantity of alcohol so that when he is tested within three hours of driving, he would have the prohibited blood-alcohol level. Under either statute, a person knows the prohibited level and has to assess the effects of alcohol in their system so that they do not reach the prohibited level at some point later in time; under either statute, a person who “drinks a substantial amount of alcohol ... is put on notice that he chooses to drive at his own peril.”
Id. at 555-56 (quoting Lester, 320 S.E.2d at 144); accord United States v. Skinner, 973 F.Supp. 975, 980 (W.D.Wash.1997) (“[T]he two-hour rule, just as the former time-of-driving rule, gives fair notice that, although driving after drinking is not illegal per se, driving becomes illegal after a certain level of consumption; the fact that people cannot sense exactly what their BAC is at any given moment or will be in two hours does not change this.“); Sereika v. State, 114 Nev. 142, 955 P.2d 175, 177 (1998) (rejecting a vagueness challenge to a similar statute, and noting that it was not apparent why anticipating one‘s blood alcohol level up to two hours after driving would be any more difficult than forecasting such level at the time of driving).
Appellee also submits that the statute is vague because it gives inadequate guidance to a trier of fact. He suggests that it is unclear whether juries will be permitted consider any proffered expert testimony tending to show that the defendant‘s BAC was below 0.08 percent at the time of driving, or whether juries will instead be instructed to disregard such testimony, thereby permitting the defendant to be “adjudged guilty of an offense on the basis of anticipated but yet uncommitted criminal conduct.” Brief for Appellee at 33-34.
B. Overbreadth
Appellee also argues that the statute is “irrational and arbitrary” because it criminalizes some conduct that is not harmful to the public (namely, drinking and driving where the driver‘s BAC is below 0.08 but rising) while failing to criminalize other conduct that is harmful (namely, drinking and driving where the driver‘s BAC is at least 0.08 but falls below that level by the time the chemical test is administered). See Brief for Appellee at 25-27. Although he fails to identify any specific legal precedent or theory in support of such argument, to the extent we can understand Appellee‘s position he appears to be contending that the statute is overbroad in that it is not rationally related to the state‘s interest in curtailing the harm caused by intoxicated drivers.12
As applied to the present matter, it is beyond dispute that the state has a valid interest in curbing alcohol-related roadway accidents. See generally Commonwealth v. Beaman, 583 Pa. 636, 644, 880 A.2d 578, 583 (2005); Mikulan, 504 Pa. at 248-49, 470 A.2d at 1341. Furthermore, there is no constitutional right to drink and then drive while the alcohol is still in one‘s system. As stated in Mikulan,
there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving and there is little doubt that the legislature could, if it so chooses, prohibit driving within a certain reasonable time after drinking any amount of alcohol (so long as the prohibition was rationally related to the legitimate legislative purpose).
As Appellee concedes, see Brief for Appellee at 26, in evaluating this question, we employ the rational basis test, under which a statutory classification will be upheld so long as it bears a reasonable relationship to accomplishing a legitimate state purpose. See Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003). In undertaking this analysis, courts are free to hypothesize grounds the Legislature might have had for the classification. See id. at 137-38, 828 A.2d at 1089 (citing Baltimore & Ohio R.R. Co. v. Commonwealth, Dep‘t of Labor & Indus., 461 Pa. 68, 84, 334 A.2d 636, 644 (1975); Geary v. Retirement Bd. of Allegheny County, 426 Pa. 254, 259-60, 231 A.2d 743, 746 (1967)). Here, the classification consists of drivers who drank a sufficient amount of alcohol and then drove such that their BAC is in the prohibited range within two hours after driving, versus all other drivers.13 As Appellee notes, drivers who had a declining BAC above 0.08 percent while driving which dips below that level at the time of testing are not subject to criminal liability under
there is at least one conceivable rational basis for the enactment of [Nevada‘s DUI law containing a similar two-hour rule], completely separable from [a presumption that the defendant‘s BAC at the time of driving was the same as at the time of testing]. Traffic safety is clearly an important state interest. Accordingly, the State has a legitimate
interest in preventing people from driving after ingesting any substance that will render them incapable of driving safely at any time in the following several hours. When people step behind the wheel of a car, they have no certain knowledge of the time that will be required to reach their destination. Although they may have an idea of the time usually involved, they lack the clairvoyance necessary to forecast delays due to any number of common occurrences. We also conclude that promotion of the rising blood alcohol defense, and the concomitant practice of rushing to one‘s car immediately after ingesting alcohol so as to get home before the alcohol is fully absorbed, is contrary to good public policy. Because drivers have little control over traffic conditions and delays to which they are subject, the state has a legitimate interest in prohibiting people from driving at the onset of inevitably impending intoxication. We find that [the Nevada DUI statute] is rationally related to this legitimate state interest, and is, therefore, not overbroad with respect to the rising blood alcohol defense.
Id. at 180 (citation omitted). The Supreme Court of North Dakota also rejected a contention similar to that forwarded by Appellee, reasoning:
The legislature, in adopting the statutes, apparently seeks to deter persons who consume a substantial amount of alcohol from driving. This may lead to convictions of those who drive, for example, with a blood-alcohol content of .09%. This result, however, is not unreasonable or arbitrary. In enacting the per se offense the legislature considered testimony regarding impairment levels and factors that affect alcohol absorption and reduction rates. The legislature could reasonably conclude that those who drive a vehicle with a blood-alcohol content that is .10% or greater, within two hours after relinquishing control of a vehicle, pose an unreasonable risk to public safety. The statutes are rationally related to removing the risk.
City of Fargo v. Stensland, 492 N.W.2d 591, 594-95 (N.D. 1992) (citation and footnote omitted); accord Brief for Attorney General at 28 (“The General Assembly has a right to
VI.
For the reasons stated, the July 5, 2005, order of the Court of Common Pleas is reversed insofar as it invalidated
Former Justice NEWMAN did not participate in the decision of this case.
Justice EAKIN and BAER and Justice BALDWIN join the opinion.
Justice CASTILLE files a dissenting opinion in which Chief Justice CAPPY joins.
Justice CASTILLE, dissenting.
Today, the Majority upholds as constitutional a DUI statute that is materially identical to the DUI statute that this Court unanimously invalidated in Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). Because, in my view, our decision in Barud controls this case, I respectfully dissent.
In Barud, this Court examined the constitutionality of former
§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person‘s breath, blood or urine, which sample is:
(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle....
* * *
(a.1) Defense.—It shall be a defense to a prosecution under subsection (a)(5) if the person proves by a preponderance of evidence that the person consumed alcohol after the last instance in which he drove, operated or was in actual physical control of the vehicle and that the amount of alcohol by weight in his blood would not have exceeded 0.10% at the time of the test but for such consumption.
In the case sub judice, we are asked to determine the constitutionality of
§ 3802. Driving under influence of alcohol or controlled substance
(a) General impairment.—
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual‘s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
Nevertheless, the Majority, without purporting to overrule Barud, determines that
Absent the precedent that is Barud, the Majority‘s interpretation of
More importantly, in my view, when considered in conjunction with former
The two statutes are also identically imprecise in their arbitrary attempts to prohibit certain driving after consumption. Under both statutes, the time period within which the BAC test must be administered is longer than the maximum period within which alcohol is fully absorbed and reaches its peak level in the bloodstream. See Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 387 n. 3 (2000) (noting that absorption takes up to ninety minutes after consumption). Between consumption and absorption, there is a period during which alcohol has no perceivable impairing effect on the body.1 Knowing this, an individual may drink a relatively small amount, experience no discernible change in his skills of coordination or perception, and therefore begin and complete a relatively short drive before his BAC exceeds 0.08%. Without ever having fair notice that he would thereby commit the offense of driving under the influence, the individual could ultimately test above the legal limit up to two hours later and therefore be prosecuted under
Accordingly, what we deemed to be “the most glaring deficiency” of former
I would reject this thinly veiled attempt to overrule, by legislation, the constitutionally based decision in Barud. With this dissent, I do not minimize the serious problems posed by impaired drivers who take to our highways. As is not infrequently the case, however, the legislative response to the problem here paints with far too broad a brush. Therefore, I respectfully dissent.
Chief Justice CAPPY joins this dissenting opinion.
923 A.2d 1155
Anthony BURGER, Appellant,
v.
SCHOOL BOARD OF the McGUFFEY School District, Appellee.
Supreme Court of Pennsylvania.
Argued March 2, 2006.
Resubmitted April 13, 2007.
Decided May 31, 2007.