Commonwealth v. YargerCommonwealth v. Yarger
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- Before:
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Thе Commonwealth appeals from the Order of the Superior Court which vacated the sentence of Donald Yarger, Appellee, and remanded to the Court of Common Pleas. Appellee was convicted by a jury of driving under the influence with a blood alcohol content in excess of 0.10%, pursuant to
On November 25, 1989, Clinton Township Police Officer Rudinski observed Appellee driving at a speed of 70.1 miles per hour in a 55 mile per hour zone. Upon stopping Appellee, Officer Rudinski detected the odor of alcohol. He subsequently conducted а series of coordination tests and a portable breath test which produced a reading of 0.16% blood alcohol content. Appellee was arrested and taken tо the hospital so that blood could be withdrawn for a blood alcohol test.
While at the hospital, Appellee was again informed that he was under arrest and that his driver’s licensе would be suspended for one year if he refused to submit to a blood test. Thereafter, Appellee signed a consent form and blood was drawn. The test results indicated that Appеllee’s blood alcohol content was 0.18%.
In the Court of Common Pleas, Appellee was found guilty of driving under the influence with a blood alcohol content of O. 10% or greater.
Commonwealth v. Yarger,
No. 90-10,395
In reaching its conclusion, the Superior Court relied on Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992). In both Jarman and Modajfare, we held that the evidence was insufficient to establish that the driver operated a motor vehicle while his blood alcohol content exceeded 0.10%. Jarman, 529 Pa. at 97, 601 A.2d at 1231; Modaffare, 529 Pa. at 106-07, 601 A.2d at 1236. Our rationale was based on the fact that the driver’s blood alcohol content had not peaked at the time of his arrest and the fact that the difference between the blood alcohol content reading and the proscribеd level was insignificant. Id.
In
Jarman
and
Modajfare,
the drivers were found guilty of violating
In
Jarman,
the Commonwealth presented an expert witness who testified that the driver’s blood alcohol level would probably still have been rising when the test was performed. 529 Pa. at 97, 601 A.2d at 1231. This opinion was based on the drivеr’s testimony as to when he had finished his last drink.
In Modaffare, the Commonwealth’s expert testified on cross-examination “that the аlcohol concentration may have peaked between the time of the accident and the time when the blood sample was drawn.” 529 Pa. at 105, 601 A.2d at 1235. The expert “was not able to offer any opinion as to what the alcohol level was at the time of the accident.” Id. Moreover, we found that “there was no evidence upon which the [expert] could offer an opinion as to whether [the driver’s] blood alcohol level was greater than or equal to 0.10% at the time of the accident.” Id.
In Jarman and Modaffare, we held that the Commonwealth did not prove beyond a reasonable doubt that either driver’s blood alcohol content exceeded the proscribed limit while they operated their motor vehicles based оn the lapse of at least one hour between the time when the drivers were operating their cars and the administration of the blood tests; the small amount by which the test results surpassed the proscribed level; and the testimony provided by the Commonwealth’s expert witnesses that each driver’s blood alcohol level may have been below 0.10% before the tеst was administered. Jarman, 529 Pa. at 97, 601 A.2d at 1231; Modaffare, 529 Pa. at 106-07, 601 A.2d at 1236. Therefore, the convictions could not be sustained.
This court stated in
Jarman
that “[i]n cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood
Based uрon the foregoing, we conclude that the Superior Court incorrectly applied both
Jarman
and
Modaffare
to this case. We therefore find that the Superior Court erred in vacating the judgment of sentence imposed for the conviction for driving under the influence,
Having found that the facts of this case are distinguishable from Jarman and Modaffare, we now address the issue of whether expert testimony is required in such cases. For the reasons that follow, we hold that the Commonwealth is not required to present expert testimony to prove that a driver operated a vehicle with a blood alcohol content of 0.10% or greater.
Although the majority did not address the expert testimony issue in
Jarman
and
Modaffare,
Mr. Justice Cappy did address the issue in his dissent. According to Mr. Justice Cappy, “[o]nce the Commonwealth has introduced evidence to establish that the defendant’s blood alcohol test registered at least .10 percent, the Commonwealth has made a
prima facie
case under
Upon consideration of this issue, we find no reason to require the Commonwealth to present an expert witness in these matters. We hold that once the Commonwealth has established that the driver’s blood alcohol content reflects an
In an attempt to curtail deaths, injuries, and property damage resulting from alcohol related accidents, our legislature made it “unlawful to drive, operate or physically control the movement of any vehicle while the amount of alcohol by weight in thе blood is 0.10% or greater.” Commonwealth v. Mikulan, 504 Pa. 244, 249, 470 A.2d 1339, 1341 (1983). Further, it is widely accepted that people with a blood alcohol content of 0.10% should not be driving. Id.
As early as 1936, we held that operating a motor vehicle in this Commonwealth is a privilege and not a right.
Commonwealth v. Funk,
323 Pa. 390, 395, 186 A. 65, 67-68 (1936). Considering the enactment of
Notes
.
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater....
. We note that subsequent to the commencement of this case, the legislature amended