COMMONWEALTH of Pennsylvania v. Brian SLINGERLAND, Appellant.
Superior Court of Pennsylvania.
October 9, 1986.
December 15, 1986
518 A.2d 266
Argued May 7, 1986.
Order affirmed.
Henry Perkin, Assistant District Attorney, Allentown, for Com.
Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
WIEAND, Judge:
The principal issue in this appeal is whether the criminal offenses defined in
At or about midnight on July 20, 1984, Brian Slingerland lost control of his motorcycle while operating it on Cetronia Road in South Whitehall Township, Lehigh County. When Tpr. Theodore Kohuth arrived at the scene of the accident, Slingerland had already been placed in an ambulance. Ko
Kohuth filed a criminal complaint averring that Slingerland had operated a motor vehicle while under the influence of intoxicating liquor to an extent which rendered him incapable of safe driving, in violation of
He argues on appeal that the second count in the information, which charged him with violating
In Wilkinson, supra, we wrote:
As stated in Commonwealth v. Cortes, 182 Pa.Super. 602, 605, 128 A.2d 155, 156 (1956), “The police and other law enforcement officers and justices of the peace who formulate the complaints are not expected to be learned in the law.” If the complaint puts the defendant on notice of the substance of the crime for which he is being charged, it is sufficient. 278 Pa.Super. at 498 n. 6, 420 A.2d at 651 n. 6.
The two counts of the formal information prepared by the District Attorney in this case charged appellant with violating different subsections of the same section of the Vehicle Code.
(a) A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
. . .
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
These offenses, we have held, are separate and distinct. See: Commonwealth v. Fry, 340 Pa.Super. 445, 490 A.2d 862 (1985). It remains to be determined, however, whether the two offenses are “cognate.”
The word “cognate” is defined in Webster‘s Third New International Dictionary (1965) as “related, akin or similar esp. in having the same or common or similar nature, elements, qualities or origin....” Applying this common usage of the word, it would seem that the two subsections of
In a second argument, Slingerland contends that the Commonwealth‘s evidence was insufficient to show a violation of subsection (a)(4) because it failed to produce medical or other expert testimony which related his blood alcohol level of 0.13% at 1:23 a.m. to the hour of 12:00 a.m., when the accident occurred. A similar argument was made and rejected by this Court in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). There, the sole evidence of the defendant‘s blood alcohol level was the result
[W]e conclude that the Commonwealth is not required to offer evidence relating a blood alcohol test result back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result will not render the test result insufficient evidence upon which the fact-finder may convict a defendant of violating subsection 3731(a)(4) of the Vehicle Code.
Id., 353 Pa.Superior Ct. at 265, 509 A.2d at 1266 (emphasis in original). Although Slingerland‘s blood alcohol content was determined as a result of a blood test rather than by a breathalyzer test, this distinction is of no consequence. It is more significant that Slingerland had been drinking over the course of the entire evening and had not consumed a large quantity of alcohol immediately before operating his motorcycle. Moreover, Slingerland‘s testimony contained an admission that while operating his motorcycle he had been able to feel the effect of the alcohol which he had consumed. The result of the blood test, when considered in the light of the foregoing evidence, was sufficient to permit the jury to find that appellant had operated his motorcycle in violation of
The judgment of sentence is affirmed.
CIRILLO, President Judge, files a dissenting opinion.
CIRILLO, President Judge, dissenting:
I dissent. The evidence was insufficient to convict the defendant of operating his motorcycle with a blood-alcohol content of 0.10% or greater in violation of
The jury acquitted the defendant of violating
However, because of the “commonly known fact that the per cent of blood alcohol is not static but varies constantly according to the time elapsing after initial ingestion,” Commonwealth v. Kostra, 349 Pa.Super. 89, 99-100, 502 A.2d 1287, 1292 (1985) (per Wieand, J.), there was no reliable way for the jury to determine beyond a reasonable doubt from the test results what the defendant‘s blood-alcohol level was when he drove, or whether that level was 0.10% or greater. Nor did anyone observe whether the defendant at or near the time of the accident exhibited outward symptoms consistent with a certain blood-alcohol level; nor did the defendant‘s own admission that he drank four or five beers in the approximately four hours before driving provide the jury with a sufficient basis to calculate the defendant‘s blood-alcohol content when he drove. In short, unaided by expert testimony on the effects of alcohol consumption and its rates of absorption and dissipation in the bloodstream, the jury simply was not competent to decide what the defendant‘s blood-alcohol level was when he was driving, or
Indeed, I find it to be self-evident that an uninstructed lay jury cannot calculate a defendant‘s blood-alcohol level to within a few hundredths of a percentage point based solely on the results of a test of a sample taken a significant period of time after the fact. This Court has recognized that even the simple fact of a specified percentage of alcohol in the blood means nothing to a lay juror absent expert testimony or statutory presumption. Ackerman v. Delcomico, 336 Pa.Super. 569, 577, 486 A.2d 410, 414 (1984) (petition for allowance of appeal denied) (“Although the admission of the blood alcohol content has been condoned by this court..., we remain skeptical as to the value of this evidence to the jury. Without explanation, the blood alcohol content has little meaning to factfinders and quite possibly great potential for resulting prejudice to the party against whom it is used.“); Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980) (only expert witness can give opinion on relation of blood-alcohol percentage to intoxication); see also Erickson v. Municipality of Anchorage, 662 P.2d 963, 966 (Alaska Ct.App.1983) (quoting Commentary to A.R.E. 303 at 58-59) (with no expert testimony on effect of .10 blood alcohol percentage on sobriety, that fact meaningless to the average juror). How then can a lay jury be expected to extrapolate a blood-alcohol level back over time, when anyone who has ever attempted the feat knows that it cannot be done with any exactitude without reference to scientific variables that the average layman does not carry around in his head?
If the jury in this case did try to extrapolate the defendant‘s blood-alcohol level from the tested level of 0.13%, what “commonly known” rates of metabolic absorption and dissipation of alcohol did it employ to make the calculation? I find it incredible to suppose that people are so generally familiar with metabolic rates that without expert testimony they could formulate a conclusion on the matter beyond a reasonable doubt. See State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984) (peak alcohol level may occur any time from forty to seventy minutes after consumption; thereafter the system eliminates alcohol at a rate of approximately .02% per hour, varying from .006% to .04% per hour; variations arise from defendant‘s tolerance to alcohol, weight, and food consumption).
In all likelihood, the jury in this case did not attempt any precise mathematical calculations, but simply assumed that the level of alcohol in the defendant‘s blood was higher when he was driving than when he was tested due to the “commonly known” phenomenon that the body expels alcohol from the bloodstream over time. See Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). However, the only evidence presented on the point did not support making that assumption in this case; in fact, the evidence contradicted the assumption. According to the defendant, he finished drinking shortly before he began driving, and shortly after that he had his accident; consequently, if we indulge the equally “commonly held” notion that alcohol takes a certain amount of time to be absorbed into the blood, see Kostra, the defendant‘s blood-alcohol level would still have been rising a significant period of time after his accident, and he might have been perfectly within the legal limit while he was driving.
Of course, the jury was free to disbelieve all of the defendant‘s testimony about the time and amount of his alcohol consumption. See Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984) (petition for allowance of appeal granted). But that still leaves unanswered the crucial question on this appeal: how did the jury determine beyond a reasonable doubt that the defendant‘s blood-alcohol level was 0.10% or more when he was driving? Obviously, without expert testimony on the issue the only way for the jury to have determined this was to guess, and a conviction based on guess or conjecture cannot stand. Griscavage; Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980).
The majority cites Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), for the proposition that
In Speights, unlike this case, there was strong contemporaneous evidence that the defendant had been intoxicated while operating his vehicle, allowing the jury to infer that his blood-alcohol level was impermissibly high at the time of operation as well as at the time he took a Breathalyzer test. Thus,
The arresting officer testified that although appellant‘s car did not collide with anything, it was swerving from side to side on the road and nearly struck some parked vehicles. Furthermore, the officer stated that appellant ran a red light and did not pull over in response to the officer‘s having sounded his police car siren. When appellant eventually stopped, the officer observed that appellant had bloodshot eyes and that there was a heavy odor of alcohol emanating from inside appellant‘s car. In addition, the officer stated that when appellant stepped outside his vehicle, he staggered and almost fell to the ground.
Speights, 353 Pa.Superior Ct. at 259-260, 509 A.2d at 1264. Moreover, the Breathalyzer test in Speights occurred two hours and forty-five minutes after Speights had stopped driving, and the court concluded that after that much time his blood-alcohol level no doubt would be falling, not rising. Thus,
if an accused stops drinking 30 to 90 minutes before arrest, the accused‘s blood alcohol content will probably be falling at the time of arrest....
...
The more remote in time, the more likely that the defendant‘s blood alcohol content will register lower than it was at the time he was driving.
Id., 353 Pa.Superior Ct. at 264-265, 509 A.2d at 1266-67.
In our case, by contrast, no one observed the defendant driving; the only evidence pertaining to that time period
This latter distinction leads into the fatal flaws in the Speights rationale itself. Speights decided, without citing any scientific evidence presented in that case, that alcohol is absorbed into the bloodstream within thirty to ninety minutes of consumption. This “fact” is simply not one which a court of law may decide as a matter of judicial notice. Cf. Kostra; Dougherty. Indeed, the lay judges of this Court are no better qualified than lay jurors to determine rates of human metabolism without guidance from an expert on the subject. Speights‘s “authority” for the thirty-to-ninety-minute criterion was the plurality and concurring opinions in Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977) (petition for allowance of appeal denied), neither of which themselves cited any authority or evidence for the validity of that criterion. Cf. Arizini (Commonwealth presented expert testimony on body‘s rate of metabolizing alcohol); Commonwealth v. Hartman, 179 Pa.Super. 134, 115 A.2d 820 (1955) (similar), rev‘d, 383 Pa. 461, 119 A.2d 211 (1956). In fact, the plurality opinion in Schwarzbach went so far as to state “we regard with skepticism any evidence with attempts to relate back to a blood alcohol level at a time prior to the administering of such a test because such a test is entirely too speculative.” 252 Pa.Super. at 462, 381 A.2d at 1299 (dictum) (citing Hartman, 179 Pa.Super. 134, 115 A.2d 820 (Ross, J., dissenting)); accord, Griscavage, 336 Pa.Superior Ct. at 152 n. 5, 485 A.2d at 476 n. 5; Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (plurality opinion) (petition for allowance of appeal denied). How the Speights court transformed Schwarzbach‘s “skepticism” about the validity of a relation-back test in a civil case into an endorsement of such a test for
Even assuming arguendo the correctness of Speights‘s judge-made rule that alcohol passes into the bloodstream in thirty to ninety minutes, the Speights rationale for adopting that standard does not apply with equal force to all drunk driving cases. Speights reasoned generally that an accused benefits rather than suffers from delay in the administering of a blood test because his blood-alcohol content will be falling if he has stopped consuming alcohol thirty to ninety minutes before arrest. Of course, the fallacy of this reasoning is patent. It completely ignores the case where, as here, the testimony is that the accused did not stop drinking thirty to ninety minutes before he stopped driving, so that his blood-alcohol level may have continued to rise even after he stopped driving. Cf. Hartman, 383 Pa. 461, 119 A.2d 211 (upholding trial court‘s exclusion of blood-alcohol test results where alcohol may not have been fully effective until forty minutes after defendant stopped driving); Schwarzbach (plurality opinion) (expressing skepticism about relation-back of blood-alcohol test results where driver could have consumed large quantity of alcohol shortly before driving); Commonwealth v. Mattis, 36 Pa.D. & C.3d 532 (Somerset County 1985) (finding evidence insufficient to convict of driving with blood-alcohol content of 0.10% or greater where no expert testimony relating test results back to time of operation).
The majority‘s reliance on the additional evidence that Slingerland felt the effect of the alcohol while he was driving is unavailing. This admission is no more consistent with having a blood-alcohol content above .10% than with having one below that level. The jury did not convict Slingerland of driving under the influence of alcohol to a degree rendering him incapable of safe driving, so how he “felt” is relevant only insofar as it helps to fix the percentage of alcohol in his blood at the time he was driving. On that score, it is undeniable that one can “feel” the effects of alcohol before it reaches a level of .10% in the blood. This
The Speights holding that expert testimony is not required to relate a defendant‘s blood-alcohol level back to the time of operation should be overturned because it will encourage and in many cases necessitate jury speculation. The better rule is that in a prosecution for driving with a blood-alcohol content of 0.10% or greater, expert testimony relating back the results of a remote blood-alcohol test “is indispensable to the prosecution‘s case” State v. Carter, 142 Vt. 588, 592, 458 A.2d 1112, 1115 (1983) (quoting State v. Rollins, 141 Vt. 105, 110, 444 A.2d 884, 887 (1982)); accord, Commonwealth v. Gillingham, 32 Pa.D. & C.3d 37 (Somerset County 1984).
Because the defendant‘s conviction was necessarily the result of jury speculation, I would reverse and discharge him from further prosecution.