Commonwealth v. ModichCommonwealth v. Modich
- Reporters:
- , ,
- Before:
- Hoffman
Opinion by
Hoffman, J.,Appellant contends that the results of a chemical breath test, obtained as the fruit of an illegal arrest, were improperly introduced into evidence at his trial fоr driving while under the influence of alcohol.
At approximately 10 o’clock on the night of January 20, 1973, while driving through Beaver Borough, appellant became involved in an automobile accident with a truck driven by one Frank Legnine. Two Beaver police officers, Stephen Kasely and Nick Opsanic, arrived at the scene. Officer Kasely testified that when he first observed appellant, he had his head inside and his feet outside his car. Neither officer actually observed appellant driving the car. Appellant came over to Kasely and demanded that the other driver be arrested. According to Kasely, appellant “smelled of liquor,” “had an unsteady gait,” and “wаs very combative.” Kasely testified that appellant “tried to start an argument with the truck driver [Legnine] three or four times.” Officer Opsanic testified that appellant repeatedly harassed the two officers and interfered with their efforts to investigate the accident and clear up traffic. Officer Kasely testified that the resulting “commоtion” attracted a number of bystanders. At approximately 10:30, Officer Kasely placed appellant under arrest for disorderly conduct and drunken driving, and gave apрellant his Miranda warnings. After the officers cleared up the traffic jam, they took appellant to the Beaver police station, where he was again advised of his Miranda rights. At thе police station, appellant was unwilling to take a chemical breath test without talking to his attorney. Appellant’s attorney advised him, over the telephone, that if he refused to take a breath test, his license would be suspended. Appellant then took the test.
On February 21, 1973, appellant was convicted by a magistrate of disоrderly conduct under a Beaver Borough ordinance, fined thirty dollars plus costs, and *95 bound over to a grand jury on charges of drunken driving 1 and of assault and battery (which Legnine alleged appellant had committed against him). On May 8, 1973, the grand jury indicted appellant on these two charges. On June 5, 1973, the court below denied appellant’s motion to suppress the admission of the results of the breаth test into evidence. On June 8, 1973, a jury returned a verdict of guilty on the drunken driving charge, but acquitted appellant of the assault and battery charge. Post-trial motions were denied. This appeal followed.
The Vehicle Code, Act of April 29, 1959, P.L. 58, §624.1, added July 28, 1961, P.L. 918, §1, as amended,
*96 “(h) The refusal to submit to a chemical test may be admitted into evidence as a factor to be considered in determining innoсence or guilt.” (Emphasis supplied.) 3
The Commonwealth admits that the initial arrest of appellant was illegal.
4
The Vehicle Code, Act of April 29, 1959, P.L. 58, No. 32, §1204(a),
Evidence obtained as the rеsult of an illegal arrest must be suppresed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Mackie, 456 Pa. 372, 320 A. 2d 842 (1974). “[0]nce the primary illegality — here the illegal arrest — is established, the burden is on the Commonwealth to establish that [the evidence sought to be introduced] has been come at ‘by means sufficiently distinguishable to be purged of the primary taint’ rather than ‘by the exploitation of that illegality.’ ” Betrand Appeal, 451 Pa. 381, 389, 303 A. 2d 486, 490 (1973) citing Wong Sun, supra, at 488. “To be effective, consent to a search and seizure must be voluntarily given with the total absence of duress or coercion, express or implied.” Commonwealth v. Pichel, 229 Pa. Superior Ct. 103, 106, 323 A. 2d 113 (1974), citing Commonwealth v. Harris, 429 Pa. 215, 221, 239 A. 2d 290 (1968).
The Commonwealth contends that appellant’s agreement to take the breath test after learning that the alternative was the suspension of his licensе indicates that his choice was voluntary and unconstrained. Appellant was advised by his attorney that if he refused to take the test, his license would be suspended. The Commоnwealth Court has held that a person placed under arrest and charged with drunken driving may have his license suspended if he refuses to submit to a chemical breath test, no mаtter how unlawful the arrest.
Commonwealth v. Miles,
8 Comm. Ct. 544, 304 A. 2d 704 (1973).
6
Thus, appellant’s dilemma was the product of his arrest. Appellant should not be forced to make such a choice solely be
*98
causе of an unlawful arrest. Moreover, if the Commonwealth’s logic were to be followed to its conclusion, even the appellant’s refusal to submit to the test while under illegаl arrest, had he so chosen, would have been held “voluntary” and admissible at trial under
As we have determined that the trial judge erred in admitting the results of appellant’s chemical breath test, appеllant must be granted a new trial. 9
Judgment of sentence reversed and new trial granted.
Price and Van der Voort, JJ., dissent.
Notes
. “It shall be unlawful for any person to operate a motor vehicle . . . while under the influence of intoxicating liquor or any narcotic drug or habit producing drug . . . Any person violating the provisions of this section, shall be guilty of a misdemeanor . . .” Act of April 29, 1959, P.L. 58, §1037,
. Although the statute, by its terms, only gives those persons under arrest an optiоn to refuse to take the breath test, we have held that this option, as well as the dual penalties of license revocation and introduction of the refusal to take the test at trial, *96 applies to any person required to take a breath test on “reasonable grounds.” Commonwealth v. Wolpert, 224 Pa. Superior Ct. 361, 308 A. 2d 120 (1973).
. We have held that this statute is constitutional. Commonwealth v. Robinson, 229 Pa. Superior Ct. 131, 324 A. 2d 441 (1974).
. The Commonwealth does not argue that appellаnt’s breath test was incident to a lawful arrest for disorderly conduct.
. This act was suspended effective January 1, 1974, by Rule 159, Pa. R. Crim. P., insofar as it was inconsistent with Rule 101, Pa. R. Crim. P. Rule 101(3) allows “an arrest without a warrant when the offense is a felony or misdemeanor
committed in the presence of the police officer making the arrest.”
(Emphasis supplied.) This rule was recently changed by the Act of July 20, 1974, P.L. 522, No. 177, which amends
. The Commonwealth Court has stated repeatedly that a stricter standard must be applied in criminal cases. Bureau of Traffic Safety v. Drugotch, 9 Comm. Ct. 460, 308 A. 2d 183 (1973); Commonwealth v. Miles, supra.
. The Commonwealth argues in its brief that appellant believed that a refusal tо take the test, made while under unlawful arrest, would be admissible against him at trial.
. The Commonwealth’s behavior in this case is contrary to our holding in Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 389-390, 324 A. 2d 452 (1974) that, absent “exceptional сircumstances,” “[t]o transport a person to a place where a test of his blood or breath will be conducted, a lawful arrest is required . . .” Had appellant nоt been placed under arrest, he might properly have been subjected to a breath test at the scene of the accident, but not at a remote plaсe and time. Commonwealth v. Quarles, 229 Pa. Superior Ct. at 389, 324 A. 2d at 466.
. Appellant also claims that under the rule announced in Commonwealth v. Campana, 452 Pa. 233, 304 A. 2d 432 (1973), 414 U. S. 808 (1973), 455 Pa. 622, 314 A. 2d 854 (1974), he could not properly be prosecuted for drunken driving after being convicted of disorderly conduct on February 21, 1973. In Commonwealth v. Beam, 227 Pa. Superior Ct. 293, 301, 324 A. 2d 549 (1974), we held that the Campana rule “should be applied only in those cases in which the first prosecution is brought after the date that case was decided.” (Emphasis supplied.) As appellant’s first conviction occurred in February, 1973, he cannot take advantage of the Campana rule, which was first handed down by our Supreme Court on May 4, 1973.