Opinion
No. 195 Pittsburgh 1998.
Filed: February 18, 1999.
Appeal from the Judgment of Sentence of December 30, 1997 in the Court of Common Pleas of Venango County, Criminal No. 476 of 1997
BEFORE: DEL SOLE, JOHNSON, JJ., and CIRILLO, P.J.E.
OPINION
¶ 1 Nathan M. Murray appeals from the judgment of sentence entered in the Court of Common Pleas of Venango County following his conviction for driving under the influence of alcohol ("DUI").
¶ 2 On June 13, 1997, at approximately 2: 08 a. m., Officer Robert Hartle of the Franklin Police Department observed a vehicle make a right turn at a red light at 13th and Liberty Streets, where a sign read "No turn on red." Officer Hartle had at the time been a police officer for approximately 11 years, during which he had made approximately 50 DUI arrests. He followed the car and observed it signal to make a turn, drive over a concrete median divider, and continue straight ahead. Officer Hartle stopped the car and asked the driver for his license and registration. Murray handed Officer Hartle his license, and a passenger who owned the car provided the registration and insurance cards.
¶ 3 Officer Hartle asked Murray what he had been doing prior to driving, and Murray responded that he had been drinking at a local inn. While speaking with Murray, Officer Hartle noticed a strong odor of alcohol on his breath and asked him to step out of the car. Murray then failed field sobriety tests including a one-legged stand and a heel-to-toe walk; there was testimony that the tests were performed on a steep hill in the rain, and that the officer instructed Murray to perform them in the oncoming lane of traffic. Officer Hartle transported Murray to the Northwest Medical Center's Franklin Hospital campus, where his blood was drawn and the tube sealed at 2: 42 a. m., 34 minutes after Murray had last been observed driving. The officer testified that Murray's speech was not slurred, his eyes were not bloodshot, his clothing was orderly and neat, and he was quiet and polite. He also testified it was his opinion that Murray was incapable of safe driving.
¶ 4 A blood alcohol test was later performed on the sealed sample at the Medical Center's Oil City Hospital campus; both campuses of the Medical Center are approved by the Department of Health to perform blood alcohol tests. The same medical technologist who had drawn Murray's blood performed the later test. This technologist's supervisor, who is the Medical Center's manager of laboratory services and also the laboratory records custodian, testified for the Commonwealth that the blood alcohol content ("BAC") of the sample was 0.14%. She also testified that at 2:08 a.m., the last time Murray was observed driving, his BAC might have been under 0.10%.
¶ 5 Following the denial of his motion to suppress, Murray was convicted by a jury of DUI by driving while having a BAC over 0.10% and of making a right turn on red where a "no turn on red" sign was present. The jury acquitted him of DUI so as to be incapable of safe driving. Murray was sentenced on the DUI conviction to serve 30 days to one year in jail, to pay a fine of $700.00, and to pay court costs and health-care costs while in jail, with a reduction of his fine to $400.00 if he were to complete the alcohol safe driving school and pay all fines and costs within 90 days. His sentence on the traffic signal count was a $25.00 fine plus costs.
75 Pa.C.S.A. § 3731(a)(4).
75 Pa.C.S.A. § 3112(A)(3)(ii).
75 Pa.C.S.A. § 3731(a)(1).
¶ 6 Murray now appeals and presents for our review the issue of the constitutionality of a new subsection of the DUI statute which, on its face, has the effect of allowing the Commonwealth to obtain a conviction merely upon a prima facie showing that a driver's BAC was over the limit. Murray also questions the propriety of the trial court's instructions to the jury.
¶ 7 Murray was convicted under section 3731(a)(4) of the Vehicle Code (Title 75, Pa.C.S.A.), DUI by driving while having a BAC over 0.10%. This section of the DUI statute mandates strictly that the Commonwealth prove beyond a reasonable doubt that a defendant's BAC was over 0.10% while he was actually driving. 75 Pa.C.S.A. § 3731 (a)(4). Murray does not challenge the constitutionality of this subsection, but rather of a different subsection which was newly in effect at the time he was convicted, 75 Pa.C.S.A. § 3731(a. 1). Subsection (a.1) applies to and modifies (a)(4). Murray contends it does so in an unconstitutional manner.
Subsection (a)(4) "requires that the Commonwealth satisfy its burden solely through competent BAC test results. . . ." Commonwealth v. Loeper, 541 Pa. 393, 403, 663 A.2d 669, 674 (1995) (emphasis added). No other evidence is relevant to a conviction under that subsection. Id.
In contrast, the more general standard of subsection (a)(1) permits proof by means other than BAC testing (e.g., outward symptoms including bloodshot eyes, driving patterns, odor of alcohol, slurred speech, admissions of drinking, etc.). Here, there was a charge under subsection (a)(1), but the jury acquitted Murray of it. Therefore, in reviewing the propriety of the conviction for (a)(4), as modified by (a. 1), we must rely solely upon the BAC test results. We are bound by the decision of our supreme court in Loeper and may consider no other evidence here.
¶ 8 The portions of the statute affecting Murray read as follows:
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
(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:
(i) an adult is 0.10% or greater.
* * *
(a. 1) Prima facie evidence. —
(1) It is prima facie evidence that:
(i) an adult had 0.10% or more by weight of alcohol in his or her blood at the time of driving, operating or being in actual physical control of the movement of any vehicle if the amount of alcohol by weight in the blood of the person is equal to or greater than 0.10% at the time a chemical test is performed on a sample of the person's breath, blood or urine;
* * *
(2) For the purposes of this section, the chemical test of the sample of the person's breath, blood or urine shall be from a sample obtained within three hours after the person drove, operated or was in actual physical control of the vehicle.
75 Pa.C.S.A. § 3731(a)(1), (a)(4)(i), (a. 1) (emphasis added). As quoted, the statute became effective on January 9, 1997 and was in effect at the time of the incident in question on June 13, 1997.
¶ 9 Murray claims section 3731(a. 1) is unconstitutional both facially and as applied to him. We find no reported cases on the constitutionality of 75 Pa.C.S.A. § 3731(a. 1). We are therefore presented with an issue of first impression.
Murray's statement of questions involved violates Pa. R.A.P. 2116 because it is not on a separate page. "The statement of the questions involved . . . must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception." Pa. R.A.P. 2116(a). Murray is advised that an appeal may be dismissed for failure to comply with this court's briefing requirements. See Pa. R.A.P. 2101.
¶ 10 We address Murray's constitutional challenge to 75 Pa.C.S.A. § 3731(a. 1) with the following standards in mind:
[T] here is a strong presumption in the law that legislative enactments do not violate the constitution. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981). Moreover, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. Commonwealth v. Mikulan, supra. While penal statutes are to be strictly construed, the courts are not required to give the words of a criminal statute their narrowest meaning or disregard the evident legislative intent of the statute. Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 880 (1988). A statute, therefore, will only be found unconstitutional if it "clearly, palpably and plainly" violates the constitution. Commonwealth v. Mikulan, supra.
Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162, 165 (1996).
¶ 11 Murray's argument is but the latest chapter in the seemingly endless and utterly confusing tome of law on subsection (a)(4) of our DUI statute. An overview of this history's most significant installments is necessary to fully understand and resolve Murray's challenge.
¶ 12 The current DUI statute was enacted in 1982 because prosecutors had difficulty proving guilt under the 1976 version of the law. The 1982 version first contained subsection (a)(4), which is an "illegal per se" law, making it illegal to drive while one's BAC is 0.10% or greater. This law withstood a void for vagueness challenge in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). However, because (a)(4) does not specify a requisite period of time after driving within which BAC results may not exceed the specified level, but instead strictly prohibits driving while exceeding the proscribed limit, the Commonwealth began presenting expert testimony in close cases to extrapolate or "relate back" the test results, in order to prove what the defendant's BAC would likely have been while driving.
The Commonwealth used both BAC results and corroborating physical signs to prove a defendant incapable of safe driving under the 1976 version, and there was no equivalent of today's (a)(4). For further history and analysis, see Robert J. Schefter, Under the Influence of Alcohol Three Hours After Driving: The Constitutionality of the (a)(5) Amendment to Pennsylvania's DUI Statute, 100 Dick. L. Rev. 441 (1996).
An "illegal per se" law is a crime that can be proven only through objective, scientific evidence. See People v. Cancel, 520 N. Y. So.2d 509, 512 (N. Y. Crim. Ct. 1987).
Relation-back or retrograde extrapolation is the process of inferentially projecting data into an unknown area and thus achieving a conjectural knowledge of the unknown. It is common knowledge that the level of alcohol in the bloodstream is not static. Typically, an expert proffering retrograde extrapolation evidence will apply several factors to the operator's blood alcohol results and arrive at an educated estimate of the operator's BAC at the time he or she was driving. These factors include, but are not limited to, tolerance to alcohol, rate of alcohol absorption and evaporation, the lapse of time between the testing and operation of the vehicle, metabolic rate and weight of the individual, time and specifics of the most recent food eaten, and the lapse of time between the operator's last drink and the operation of the vehicle. It should be noted that such factors are necessarily individualized, cannot be applied generally, and are not within the common knowledge of laypersons or even judges. They therefore require expert testimony. See Schefter, supra note 6.
¶ 13 In 1992, our supreme court required the Commonwealth to present such expert relation-back testimony in the companion cases of Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), and Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992). In both cases, the court was presented with defendants with BAC levels only slightly above the proscribed limit, and, as here, Commonwealth experts who testified the defendants' BAC levels could have been below 0.10% while they were driving. After noting the ten-percent margin of error associated with BAC testing, the supreme court compared our DUI statute to those of other states:
See also Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988) (requiring the Commonwealth to present relation-back testimony in cases where BAC results are under 0.10% and the period of time since driving is significant).
In 75 Pa.C.S.A. § 3731(a)(4), supra, it is made an offense to drive a vehicle while one's blood alcohol content is 0.10% or greater. In contrast, we note that the legislatures of certain other states have enacted statutes making it an offense to drive with a blood alcohol content of 0.10% "as shown by" or "as determined by" a blood alcohol test administered within a specified time after driving has ceased. Under such statutes, the facts of the present case might readily support a conviction. Our statute, however, is more limited in its focus. It makes one's blood alcohol content while driving the pivotal issue.
Modaffare at 104, 601 A.2d at 1235; Jarman at 95, 601 A.2d at 1230 (identical text in both cases) (citation omitted) (emphasis added). The supreme court considered medical testimony that "a person's blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after the drinking has ceased, and that, thereafter, the level declines." Modaffare at 105, 601 A.2d at 1230; Jarman at 96, 601 A.2d at 1231. With this observation in mind, the court required the Commonwealth to proffer expert relation-back testimony to secure a conviction under 75 Pa.C.S.A. § 3731(a)(4) in cases where there is a weak inference of guilt:
In 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 alcohol levels were in the prohibited range while driving. However, where . . . the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.
Modaffare at 105, 601 A.2d at 1235; Jarman at 96, 601 A.2d at 1231 (emphasis added). The court held that where only a weak inference of guilt exists, a conviction based upon a BAC test without relation-back testimony necessarily rests upon "unbridled speculation" by the fact-finder as to whether appellant's blood alcohol level was at or above 0.10% while driving. Id. "It is well recognized, however, that a criminal conviction cannot be based upon mere speculation or conjecture." Id., citing Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978). See also Commonwealth v. Allen, 575 A.2d 131 (Pa.Super. 1990) (Cirillo, P.J., dissenting) (the Commonwealth must meet its burden of proving at trial that defendant's BAC is 0.10% or above at the time he is driving); Commonwealth v. Slingerland, 518 A.2d 266 (Pa.Super. 1986) (Cirillo, P.J., dissenting) (same).
In both cases, since the Commonwealth's experts had been unable to present positive relation-back testimony, only a weak inference of criminal behavior was available. (This, in turn, was so because the BAC levels only barely exceeded the 0.10% level after a significant lapse of time — 0.114% after one hour in Jarman and 0.108% after one hour and fifty minutes in Modaffare.) Therefore, our supreme court held, impermissible speculation had occurred. It reversed both convictions. Modaffare, supra; Jarman, supra.
¶ 14 Since Modaffare and Jarman, when trial judges have presided over prosecutions brought under (a)(4), they have used the broad standards quoted above to determine on an ad hoc basis whether the inference of guilt was weak or strong, and thus whether or not the Assistant District Attorney would be required to present an expert witness to relate the BAC results back to the time of driving. See note 17 infra. In response to the mandate of Jarman and Modaffare that the Commonwealth present relation-back evidence in close cases brought under (a)(4), our legislature revisited the DUI statute in 1992 by adding the short-lived section 3731(a)(5) and its companion defense in former section 3731(a. 1). These read:
The intent of the legislature in enacting (a)(5) was to ease the prosecution's burden of proving a case under (a)(4) in light of Modaffare and Jarman. See Schefter, supra note 6, at 467; Pa. House Legis. J., Nov. 17, 1992, at 1853.
(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; 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 actual physical control of the vehicle; or
(ii) if the circumstances of the incident prevent collecting the sample within three hours, obtained within 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 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.
75 Pa.C.S.A. § 3731(a)(4), (a)(5), (a. 1) (1992, Dec. 18, P. L. 1411, No. 174, § 12, effective in 60 days) (emphasis added). Subsection (a. 1) set forth the only defense available in a prosecution under (a)(5). Subsections (a)(5) and (a. 1) were subsequently stricken as unconstitutional by our supreme court. See Commonwealth v. Barud, 545 Pa. 297, 302, 681 A.2d 162, 164 (1996) (holding (a)(5) and (a. 1) unconstitutionally void for vagueness, overbreadth, and creating an impermissible presumption of guilt). It is Murray's contention, with which we agree, that the new prima facie evidence subsection (a. 1) is an attempt to re-enact the former, stricken (a)(5) and (a. 1), with only minor modifications. Therefore, a discussion of the problems with former (a)(5) and its defense in former (a. 1) is germane to our resolution of the instant appeal.
¶ 15 There were two serious difficulties with (a)(5) and its defense in prior (a. 1). First, our supreme court held these subsections violated the United States and Pennsylvania Constitutions due to impermissible vagueness, overbreadth, and imposition of absolute liability through a presumption that disallowed any defense but one. Barud, supra. In an opinion by Justice Castille, the court found the statute: 1) swept unnecessarily broadly into the non-prohibited activity of driving with a BAC of less than 0.10%; 2) created confusion as to what level of BAC was prohibited; 3) failed to allow a defendant the opportunity to provide rebuttal evidence that he or she was below the legal limit at the time of driving; and 4) imposed liability regardless of evidence to the contrary. Barud at 305-308, 681 A.2d at 165-67. The court also opined that (a)(5) eliminated the essential requirement that the Commonwealth prove the accused's BAC was above the legal limit at the time of driving. Id. Murray challenges the new statutory subsection (a.1) on these same grounds.
The defense provided in (a. 1) encouraged drivers to carry alcohol and to "guzzle" it after being stopped but before being given a BAC test. See Schefter, supra note 6.
We question whether such evidence is relevant to prosecution under a statute criminalizing having a BAC within a certain time after driving.
We question whether this was indeed an essential requirement. It was certainly not essential to (a)(5) when viewed on its own. The requirement remained squarely in subsection (a)(4), and the two subsections were phrased as alternatives. The underlying issue, we believe, was instead whether it was within the legislature's power to add the new subsection, with its definition of a different (and broader) crime. See U.S. v. Skinner, 973 F. Supp. 975 (W. D. Wash. 1997) (observing that the holding of Barud erroneously implies that the only DUIrelated behavior the State can prohibit legitimately is driving with a 0.10% BAC or higher).
¶ 16 The second problem with (a)(5) was that prosecution under that subsection was an alternative to prosecution under (a)(4). As such, (a)(5) was not a solution to the difficulty the Commonwealth encountered in proving its cases under (a)(4), even though this is what it had been designed to provide. Therefore, both after the enactment of (a)(5) and after it was stricken four years later in Barud, our courts by necessity continued defining on an ad hoc basis what amounts to a BAC significantly above 0.10%, whether testing was performed soon after suspects were stopped, and under what combination of these factors the Commonwealth is required to offer expert relation-back testimony to secure a conviction under 75 Pa.C.S.A. § 3731 (a)(4) as per Jarman and Modaffare. In Commonwealth v. Osborne, 606 A.2d 529 (Pa.Super. 1992), a panel of this court summarized the practical problems arising from the application of the Jarman and Modaffare holdings:
Let there be no misunderstanding in this confused area of law. The fact that (a)(5) was an alternative to (a)(4) was not, in our opinion, a fatal or illegal flaw, or even a problem in and of itself. It merely rendered (a)(5) ineffective at remedying the deficiencies of (a)(4), as it was designed to do; this was the problem which was, we believe confusingly, addressed in Barud.
It is not clear whether the Barud court recognized this. Although the legislature clearly had added a new and different alternative crime, the court opined, "Indeed, the most glaring deficiency of § 3731(a)(5) is that the statute completely fails to require any proof that the accused's blood alcohol level actually exceeded the legal limit at the time of driving." Barud, 545 Pa. at 306, 681 A.2d at 166.
See, e.g., Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995) (expert relation-back testimony needed where BAC of 0.141%, termed "slight," taken two hours after last time of driving); Commonwealth v. Shade, 545 Pa. 347, 681 A.2d 710 (1996) (no expert relation-back testimony needed where two BAC's, taken 46 and 47 minutes after driving, showed 0.157% and 0.142% respectively); Commonwealth v. Allbeck, 715 A.2d 1213 (Pa.Super. 1998) (no relation-back testimony needed where 0.151% BAC test result taken 90 minutes after last moment of driving); Commonwealth v. Montini, 712 A.2d 761 (Pa.Super. 1998) (no relation-back testimony needed where 0.19% BAC test Jarman/Modaffare/Osborne approach has been uncertain since 1994. In Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994), a case by result taken 54 minutes after being stopped); Commonwealth v. Phillips, 700 A.2d 1281 (Pa.Super. 1997) (relation-back testimony needed where 0.146% and 0.148% BAC test results taken three hours 42 minutes and three hours 44 minutes respectively); Commonwealth v. Stith, 644 A.2d 193 (Pa.Super. 1994) (relation-back testimony needed where 0.12% BAC test result taken forty minutes after being stopped); Commonwealth v. Proctor, 625 A.2d 1221 (Pa.Super. 1993) (relation-back testimony needed where 0.179% BAC taken approximately two hours after being stopped); Commonwealth v. Kasunic, 620 A.2d 525 (Pa.Super. 1993) (no relation-back testimony needed where BAC of 0.21% taken fifty minutes after driving); Commonwealth v. Osborne, 606 A.2d 529 (Pa.Super. 1992) (relation-back testimony needed where defendant's BAC fifty minutes after arrest was 0.1488%, not a substantial departure from 0.10%).
[T] he supreme court did not draw a bright numerical line between what it would consider to be a minimal upward departure suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt. In like vein, the supreme court failed to establish a temporal cut-off for the drawing of a suspect's blood to indicate either a weak or a strong inference of guilt. In our view, and in accordance with the dual standards set by our supreme court in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused's BAC test result to the time of driving.
Osborne, 606 A.2d at 531. Our supreme court later adopted this view. See note 21 infra (discussing Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995)).
¶ 17 To further complicate matters, the continuing validity of the which we are bound but which has caused much confusion, the supreme court emphatically abandoned any need to distinguish weak inferences of guilt from strong, when it discarded the requirement that the Commonwealth present relation-back testimony at all in prosecutions under (a)(4). It held repeatedly:
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.
* * *
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 amount above 0.10%, the Commonwealth has made a prima facie case under 75 Pa.C.S.A. § 3731(a)(4). At this point, the defendant is permitted to introduce expert testimony to rebut the Commonwealth's prima facie evidence. If the defendant decides to rebut the prima facie evidence against him with expert testimony, then the Commonwealth may present its own expert to refute this testimony.
* * *
We find it unnecessary to require the Commonwealth to present expert testimony in cases where the driver has failed to rebut the Commonwealth's prima facie evidence that his blood alcohol content was 0.10% while operating a motor vehicle.
Yarger at 334-35, 648 A.2d at 531-32 (footnote omitted) (emphasis added).
See Commonwealth v. Montini, 712 A.2d 761, 766-77 (Pa.Super. 1998) (calling upon our supreme court to revisit Yarger due to its impermissible shifting of the burden and because it is still not clear exactly when the Commonwealth must present expert
relation-back testimony); Commonwealth v. Curran, 700 A.2d 1334, 1336 (Pa.Super. 1997) (Schiller, J., concurring) (same). It appears the "prima facie evidence" approach of Yarger is the progenitor of present (a.1).
¶ 18 The Yarger court premised its change of procedure on the recognition that the previous "case-by-case review" of convictions under section 3731(a)(4) was "unworkable." Id. at 335, 648 A.2d at 532. Curiously, however, the court continued this approach by finding Yarger's BAC level of 0.18% to have been "significantly" above the legal limit, and the time period of forty minutes not to have been lengthy. Yarger, 538 Pa. at 334, 648 A.2d at 531. The court thus held that no relation-back testimony had been required and affirmed the conviction. The procedural change mandated in Yarger was not applied retroactively.
Because of this finding under the ad hoc approach, some courts have espoused an alternative view of Yarger that despite its expansive and repeated holding, it should be limited and read only to mean that if the defendant's BAC was significantly above 0.10% and the time between driving and the administering of the blood test was relatively short (as was the case in Yarger), then expert relation-back testimony is not required to prove that a driver operated a vehicle with a BAC of 0.10% or greater. Montini, supra; Curran, supra (Schiller, J., concurring). Under this view, only in such cases may the Commonwealth merely make out a prima facie case that the defendant's BAC registered at least 0.10% and forego expert relation-back testimony (except as needed for purposes of rebuttal). The Commonwealth would, however, still need to present such testimony in its case-in-chief if the BAC were only slightly above 0.10% and/or the time elapsed were relatively long. We endorse this view of Yarger wholeheartedly.
In light of its holding in Barud, and in light of new section 3731(a. 1) essentially re-enacting the statute stricken by Barud, albeit with a rebuttable presumption and with direct applicability this time to (a)(4), we believe it would be helpful to trial courts if our supreme court were to revisit Yarger, in order to clarify the scope of its holding. See Montini, supra. We read Yarger essentially to have expanded the "strong inference of guilt" of Jarman and Modaffare to all cases brought for prosecution under 75 Pa.C.S.A. § 3731(a)(4) where the BAC is even slightly above 0.10%, until the defendant presents rebuttal expert testimony. However, this expansive reading of Yarger is internally inconsistent. If our supreme court had intended to allow the Commonwealth to meet its burden of proof without ever presenting relation-back testimony unless challenged by the defendant, it would have abandoned the distinctions in Jarman and Modaffare (the weak/strong inference distinction based on BAC levels being significantly above 0.10% or just barely so, and on a time period soon or not insignificantly after driving). These distinctions were designed for the sole purpose of determining when the Commonwealth is required to present expert relation-back testimony. If such a determination need never be made, the distinctions are superfluous. The Yarger court, however, retained them, and they continue as determinative factors in case law today.
In Commonwealth v. Loeper, supra, the supreme court explicitly endorsed the reasoning of the Osborne court that continued and further refined the Jarman and Modaffare approach, but only as applied to pre-Yarger cases. (See text following note 17 supra.) For post-Yarger cases, the court acknowledged that the different approach of Yarger and then-valid (a)(5) would control. Id. at 403, 663 A.2d at 674. In a 1990 incident subject neither to (a)(5) nor to Yarger, Loeper was found to have had a BAC of 0.141% two hours after driving. The Commonwealth did not present expert relation-back testimony, and Loeper was convicted under (a)(4). Our supreme court found the Commonwealth's failure to present relation-back testimony under such a weak inference of guilt was fatal. The court reiterated that "evidence beyond that provided by scientific BAC testing is not relevant to a determination of whether an accused violated subsection (a)(4)." Id., 541 Pa. at 402, 663 A.2d at 673. The supreme court took the same approach in Commonwealth v. Shade, 545 Pa. 347, 681 A.2d 710 (1996), wherein four justices agreed that the Commonwealth's failure to present expert relation-back testimony in a case based on a 1990 incident "allowed the jury to base its verdict on unsubstantiated speculation" where two "intoxilyzer" tests, taken 46 and 47 minutes after the initial stop, showed BAC readings of 0.157% and 0.142%. Id., 545 Pa. at 351, 681 A.2d at 712. Since Shade and Loeper were based upon 1990 incidents, they do not rest upon the validity of the approach taken in (a)(5) and Yarger. However, since dicta statements therein endorse the approach of now-stricken (a)(5), we suggest it would also be helpful if they were to be revisited.
¶ 19 Commonwealth v. Phillips, 700 A.2d 1281 (Pa.Super. 1997), demonstrates the confusion caused by Yarger. Therein, a panel of this court considered a DUI incident which occurred in June of 1995 and which was therefore subject to Yarger. The defendant's BAC had been tested twice, at three hours 42 minutes, and three hours 44 minutes, after driving, and it registered 0.146% and 0.148% respectively. Phillips, 700 A.2d at 1284. Phillips was charged under section 3731 (a)(4) (DUI by driving while BAC over 0.10%). Id. On the day of trial, Phillips filed a motion in limine to exclude the BAC results because they were not significantly higher than 0.10%, since the time elapsed from his last driving was significant, and since the Commonwealth did not intend to provide expert relation-back testimony in a case where there was only a weak inference of guilt. The trial court granted the motion, citing the need for relation-back testimony, and the Commonwealth appealed to this court, citing Pa. R. A. P. 311(d) (Commonwealth appeal of interlocutory order substantially handicapping or effectively terminating prosecution). This court affirmed the trial court's decision as to the charges under (a)(4).
Phillips, supra, was written by the Honorable Peter Paul Olszewski, and the two remaining panel judges concurred only in the result — perhaps due to the confusion in the law. It is thus of no precedential value. Johnson v. Harris, 615 A.2d 771 (Pa.Super. 1992). We do not rely on it but cite it merely as an example of the confusion caused by Yarger.
Phillips was also charged under section 3731(a)(1) (DUI so as to be incapable of safe driving) and section 3731(a)(5). The parties later stipulated that he could not be prosecuted under (a)(5) due to that subsection's having been held unconstitutional in Barud. Phillips, 700 A.2d at 1284 n. 2.
Phillips also sought to exclude evidence of his drunken appearance and behavior at the arrest.
However, this court reversed as to the charges under (a)(1), under which no relation-back testimony is necessary.
¶ 20 The Phillips court utilized the ad hoc approach, concluding that the BAC test results were not even sufficient to make out a prima facie case under Yarger because 0.146% and 0.148% are not significant deviations from 0.10%, and because the time periods of three hours and 42 minutes, and three hours and 44 minutes, are "clearly significant." It also concluded the danger of confusion was great, because allowing the jury to consider such results alone was an invitation to engage in the "unbridled speculation" proscribed by Jarman and Modaffare rather than holding the Commonwealth to its burden to prove guilt beyond a reasonable doubt. The court chastised the Commonwealth for allowing the case to move beyond the preliminary hearing stage, at which the Commonwealth's burden is merely to prove a prima facie case. "As such, it would appear that, following a preliminary hearing where the Commonwealth presents a weak inference of guilt and no expert relation [-] back testimony, the defendant should be discharged concerning subsection (a)(4) charges." Phillips, 700 A.2d at 1287. Although mindful that Phillips is of no precedential value, we endorse its view on this matter. However, the fact remains: the Yarger court explicitly held the Commonwealth needed to prove only a prima facie case at trial, not just at a preliminary hearing.
¶ 21 It appears our legislature has now attempted to endorse the problematic approach of Yarger by enacting in subsection (a. 1) the prima facie approach of that case (to which it has added a three-hour temporal specification), while simultaneously leaving untouched the elements of the crime in (a)(4). Bearing in mind what we take to be the continuing validity of the distinctions articulated in Jarman and Modaffare as endorsed by Loeper and Osborne, we now turn to Murray's claim.
¶ 22 Murray likens (a. 1) to the subsection stricken by Barud, section 3731(a)(5). He raises the same arguments made by appellant in that case pertaining to overbreadth, vagueness, and shifting the burden of proving the ultimate issue to the accused. The statutes are indeed exceedingly similar.
¶ 23 Our supreme court set forth the applicable standards for vagueness and overbreadth challenges to criminal statutes in Barud:
"As generally stated, the 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." Mikulan, supra at 251, 470 A.2d at 1342, quoting Kolender v. Lawson, 461 U.S. 352, 357, 75 L.Ed.2d 903, 103 S.Ct. 1855 (1983). See Commonwealth v. Burt, 490 Pa. 173, 177-78, 415 A.2d 89, 91 (1980), quoting Colautti v. Franklin, 439 U.S. 379, 390, 58 L.Ed.2d 596, 99 S. Ct. 675 (1979) (a statute is void for vagueness if it "`fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute'"). Due process requirements are satisfied if the statute provides reasonable standards by which a person may gauge their [sic] future conduct. Commonwealth v. Heinbaugh, 467 Pa. 1, 6, 354 A.2d 244, 246 (1976), citing United States v. Powell, 423 U.S. 87, 94, 46 L.Ed.2d 228, 96 S.Ct. 316 (1975).
A statute is "overbroad" if by its reach it punishes constitutionally protected activity as well as illegal activity. Grayned v. City of Rockford, 408 U.S. 104, 114, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972); Commonwealth v. Stenhach, 356 Pa. Super. 5, 25, 514 A.2d 114, 124 (1986), appeal denied, 517 Pa. 589, 534 A.2d 769 (1987). The language of the statute in question literally encompasses a variety of protected lawful conduct. Id. See Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 38 L.Ed.2d 755, 94 S.Ct. 870 (1974), quoting NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 84 S.Ct. 1302 (1969) ("`a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'") (citations omitted).
Id. at 304-305, 681 A.2d at 165-66. The Barud court found (a)(5) swept unnecessarily broadly into the non-prohibited activity of driving with a BAC below 0.10%, because it was possible under (a)(5) that one's BAC was below 0.10% at the time of driving and only rose to exceed the limit after one was stopped. Id. It also found that it created confusion by creating "two circumstances in which a person could be prosecuted: either where a person had an actual BAC of [0]. 10% at the time of driving, or where a person has a BAC which is somewhere below [0]. 10% at the time of driving but which rises above [0]. 10% within three hours after driving." Id. at 306, 681 A.2d at 166. Due to these infirmities, the court found an ordinary person could not reasonably gauge his or her conduct under the provision. Finally, it stated that "the statute criminalizes a blood alcohol level in excess of the legal limit up to three hours after the last instance in which the person operated a motor vehicle and without any regard for the level of intoxication at the time of operation." Id. Therefore, the court found, (a)(5) clearly, palpably, and plainly violated both the United States' and the Commonwealth's Constitutions. Id.
¶ 24 The analysis which Barud applied to (a)(5) applies squarely to the statutory subsection at issue here, present (a. 1). Additionally, unlike former (a)(5), which was an alternative and separate crime not connected with (a)(4), new (a. 1) qualifies (a)(4) by defining what constitutes a prima facie case for the Commonwealth under (a)(4). Because (a)(4) prohibits one thing (driving while having a BAC over 0.10%), while new (a. 1) prohibits another thing (driving within three hours of having a BAC over 0.10%), but (a. 1) is to be read as a direction on how to prove (a)(4), the statute is now indeed internally inconsistent. However, we note that since the statute now allows the defendant to present any rebuttal evidence he or she wishes, it does not suffer from the "single defense" or absolute liability problem of stricken (a)(5).
We do not, however, endorse it as it applies to stricken (a)(5). See notes 13-16, supra. We empathize with our legislature, which palpably is in need of straightforward guidance on how to achieve successfully what it had attempted unsuccessfully first in (a)(5) and now in (a. 1).
¶ 25 In short, by utilizing the scheme it has in the new subsection, the legislature has provided us with a reworked version of the statute found impermissibly vague and overbroad in Barud, with one improvement, and one added infirmity. It has also further muddled this confused area of law, to our great chagrin and bemusement.
¶ 26 In Barud, the supreme court suggested how the legislature might correct one of the flaws in the defective (a)(5):
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.
Barud at 307, 681 A.2d at 166. By providing a rebuttable presumption in the new statutory subsection, the legislature appears to have followed this advice. However, by making the statute self-contradictory and by endorsing the expansive holding of Yarger, the legislature now relieves the Commonwealth of its burden to prove the offense as specified in (a)(4) beyond a reasonable doubt.
¶ 27 The problem with the current scheme is fundamental. Rather than changing (a)(4) to redefine the actual criminal offense as having a BAC of 0.10% within a certain time period of driving, the General Assembly has left untouched the per se elements of the crime, viz. 1) driving, 2) while having a BAC of 0.10%. By retaining this language, the legislature has perhaps unintentionally insisted that the Commonwealth prove beyond a reasonable doubt that the defendant engaged in the prohibited behavior. However, the legislature has also stated in (a. 1) that the Commonwealth may satisfy this burden by making out a case that the defendant drove within three hours of having a BAC over 0.10%. We most emphatically disagree.
¶ 28 The Commonwealth simply cannot prove the elements of (a)(4) as it now stands beyond a reasonable doubt by presenting solely the results of a BAC test taken within three hours, no matter what the legislature adds to the statute. As was noted by our supreme court in Loeper, such a result would be based upon "`unbridled speculation,'" upon which a criminal conviction may not rest. Loeper at 399, 663 A.2d at 672 (quoting Jarman and Modaffare).
¶ 29 The only way for the legislature to change this result is for it to revise the elements of the crime. The basic problem with a per se statute such as we have in this Commonwealth is that it is very difficult for the Commonwealth to prove beyond a reasonable doubt that a person was driving while his or her BAC was over 0.10%, short of administering blood tests in defendants' cars while they are actually driving. The fact remains that BAC levels rise and fall rapidly.
We acknowledge that this is what the legislature attempted to do in (a)(5). However, by retaining (a)(4) alongside it (albeit as an alternative), the legislature may have invited confusion.
¶ 30 This is not a minor problem of draftsmanship; it is a fundamental error of constitutional magnitude. By specifying that the Commonwealth may prove the crime by means of evidence which by its scientific and factual nature cannot rise to the reasonable doubt standard (e.g., one BAC reading of 0.11% at a time one hour after last driving, or the same reading 15 minutes after last driving), the legislature has de facto redefined the crime. Simultaneously, it has left untouched the quite strict elements of the crime that the Commonwealth must prove. This is sheer self-contradiction.
¶ 31 It is now more unclear than ever what exactly the Commonwealth must prove, and by what standard of evidence, in order for it to gain a criminal conviction under section 3731(a)(4). This will inevitably lead to arbitrary enforcement, lack of predictability, and prosecutions for behavior not prohibited by (a)(4). These are precisely the evils sought to be proscribed by the vagueness and overbreadth doctrines.
¶ 32 This case is indeed a prime example of "unbridled speculation" and the internal self-contradiction of the statute as it now stands. Here, the Commonwealth's own expert stated in open court that Murray's BAC might have been under 0.10% while driving. This evidence could never be sufficient to prove beyond a reasonable doubt that Murray's BAC exceeded the proscribed level while he was driving. However, under (a. 1), the Commonwealth had made out a prima facie case. Therefore, the jury found the Commonwealth had proven the elements of (a)(4) beyond a reasonable doubt, in a case where the Commonwealth's own expert had stated under oath that she had a reasonable doubt. Furthermore, the jury's verdict indicated that they did not believe Murray was incapable of safe driving, for they acquitted him of the charges under (a)(1), even as they convicted him of (a)(4).
¶ 33 The legislature and the courts must bear in mind in any criminal matter the fundamental presumption of innocence and the concomitant burden to prove guilt beyond a reasonable doubt:
The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock `axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.'
In re Winship, 397 U.S. 358, 363 (1970) (citations omitted) (emphasis added). Further, the Pennsylvania Supreme Court has stated:
To sustain a conviction, the facts and circumstances which the Commonwealth [need] prove must be such that every essential element of the crime is established beyond a reasonable doubt. Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial evidence, the conviction must be based on more than mere suspicion or conjecture.
Commonwealth v. Bailey, 448 Pa. 224, 227, 292 A.2d 345, 346 (1972) (emphasis added).
¶ 34 In criminal matters, we may not weight the scales of justice against defendants. "Part of the rationale for the reasonable-doubt rule is that because the scales of justice are imperfect and a flaw therein might prejudice the individual, the balance must be weighted heavily on his side to minimize erroneous convictions." U.S. v. Burton, 584 F.2d 485, 513 (D.C. Cir. 1978) (Robinson, C. J., dissenting), citing Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L. J. 1299, 1306 (1977) (reasonable doubt rule reduces chances of erroneous conviction and symbolizes great significance society places on criminal conviction). "[I] f we are left with any doubt as to which direction they have tilted, we must be certain they are not weighted against the defendant." U.S. v. Hammond, 598 F.2d 1008, 1014 (5th Cir. 1979).
¶ 35 We may not deviate from these standards.
¶ 36 However, under the new subsection, the burden to disprove an element of the offense, that the defendant had a BAC of 0.10% at the time he was driving, improperly lies with the defendant. A person charged under section 3731(a)(4) is now required to rebut with scientific testimony the presumption of (a. 1) that his BAC was above 0.10% while he was driving, and the Commonwealth need no longer prove this element, until the defendant does so. See Loeper, supra; Yarger, supra. If the defendant does not present rebuttal testimony, the Commonwealth's prima facie case is sufficient to convict. Such a result relieves the Commonwealth of its burden of proving each and every element of the offense beyond a reasonable doubt. See In re Winship, supra; Commonwealth v. Santiago, 545 A.2d 316 (Pa.Super. 1988). See also Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724, 729 (1978) ("[A] state carries a never-shifting burden of proof beyond a reasonable doubt of all of the elements of a crime, such elements being contained in either statutory or common-law definitions.") (emphasis added).
¶ 37 Even assuming arguendo that the statute is fully constitutional, the provision still does not delineate the amount of lapsed time, and the blood alcohol level, that would relieve the Commonwealth from offering expert relation-back testimony. Assuming, in other words, that the Commonwealth makes out a prima facie case and that the defendant then rebuts it as per the holding of Yarger, at what level of BAC and time elapsed would the Commonwealth at this stage still have no need to present expert relation-back testimony, due to the inherent strength of the inference as per Jarman and Modaffare? The fundamental ad hoc determination must still be made as per prior case law. The legislature's statement of what is prima facie evidence does not in any way offer elucidation on this point, especially when it sweeps so broadly. If we were to interpret (a. 1) as such a delineation, the Commonwealth would never have to offer expert relation-back testimony at all. But this cannot be so, given the requirements of (a)(4), the continuing validity of Jarman and Modaffare as adopted in Loeper, and given the fact that Yarger continued the same approach. See Commonwealth v. Curran, 700 A.2d 1334, 1336 (Pa.Super. 1997) (Schiller, J., concurring) (". . . the [s]upreme [c]ourt has not determined what temporal threshold and what blood alcohol reading will relieve the Commonwealth of providing relation [-] back testimony").
¶ 38 The legislature cannot achieve its intended lowering of the Commonwealth's burden without revising the statutory elements of the crime. It has not revised them.
¶ 39 A final infirmity of the new subsection is its use of the phrase "prima facie evidence." Even though in 1996 the legislature added a definitions subsection to the DUI statute, it failed to define "prima facie evidence" as used in (a. 1), which it enacted simultaneously. The definition of this phrase is critical. "Prima facie evidence" is defined in Black's Law Dictionary as:
Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. . . . An inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference. See also Presumptive evidence.
Black's Law Dictionary 1190 (6th ed. 1990). As applied to a criminal statute, this does not appear to meet the "beyond a reasonable doubt" standard. It does, however, appear to presume the guilt of a defendant. The legislature could not, therefore, have meant this definition.
¶ 40 In the criminal law context, prima facie evidence is the standard to which the Commonwealth is held at a preliminary hearing. Pa. R. Crim. P. 143. It is a completely different and far lower standard than "beyond a reasonable doubt." As this court stated in 1995:
At a preliminary hearing, the Commonwealth bears the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. To sustain that burden, the Commonwealth must produce evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged; consequently, absence of evidence as to the existence of a material element is fatal. This standard does not require that the Commonwealth prove the elements of the crime beyond a reasonable doubt, nor that evidence is available that would prove each element at trial beyond a reasonable doubt.
Commonwealth v. Kelley, 664 A.2d 123, 126-27 (Pa.Super. 1995) (quoting Commonwealth v. Austin, 575 A.2d 141, 143 (Pa.Super. 1990)) (emphasis added). In 1992, this court observed:
Initially, we note that the purpose of a preliminary hearing in a court case is not to decide guilt or innocence[,] but rather to determine whether the Commonwealth has presented a prima facie case which is legally sufficient to hold the accused for court. Thus, the standard of proof for the Commonwealth is merely to establish a prima facie case (i.e., that a crime has been committed and that the accused is probably the one who committed it), and there is no requirement that the Commonwealth establish the accused's guilt beyond a reasonable doubt at this stage.
Commonwealth v. Rogers, 610 A.2d 970, 972 (Pa.Super. 1992) (emphasis added). This, too, could not have been what the legislature intended; else there would be no difference between a preliminary hearing and a trial. See Phillips, supra. Regardless, whether or not it was the legislature's intention to change the burden of proof, its use of the phrase "prima facie evidence" has piled further confusion upon the statute.
¶ 41 Let us not be misunderstood. The scourge of drunken driving deaths and accidents is still a most serious national problem demanding aggressive action.
Commonwealth v. Tarbert, 517 Pa. 277, 291, 535 A.2d 1035, 1042 (1987). The means to this end is not, however, the confusing and constitutionally tainted statute presented in this case.
¶ 42 Therefore, and in conclusion, we find section 3731(a. 1) is clearly, palpably, and plainly unconstitutional, both on its face and as applied, for the compelling reasons argued by Murray. Under the standards articulated in Barud, supra, we find section 3731(a. 1) contradicts section 3731(a)(4), does not sufficiently define what conduct is prohibited, and therefore encourages arbitrary and discriminatory enforcement. Because it does not provide reasonable standards by which persons may gauge future conduct, it is void for vagueness. Further, we find subsection (a. 1) is overbroad, because both the legal activity of driving while one's BAC is under 0.10%, and the illegal activity of driving while it is over 0.10%, fall within the reach of its prima facie presumption. Finally, subsection (a. 1) impermissibly shifts the burden of persuasion to the defendant, even though it allows for any defense.
¶ 43 The practical result of this decision is that 75 Pa.C.S.A. § 3731 (a)(4) now once again stands on its own, without the prima facie evidence version of (a. 1) which we strike today. As in Barud, we are left with the statute, and the cases interpreting it, as it stood prior to the enactment of the offending subsection.
¶ 44 Thus, under the ad hoc approach, we find Murray's conviction cannot stand without positive relation-back testimony, for although the time period of 34 minutes may not be significant, the BAC reading of 0.14% certainly is only slightly above the prohibited level, according to the cases. Loeper, supra note 17; Osborne, supra note 17. We also do not know whether his BAC was rising or falling at the time of the test, for only one was performed. The Commonwealth's expert testified that Murray's BAC may have been under the prohibited level while he was driving. This is insufficient. Murray's sentence is reversed.
¶ 45 Having returned to the ad hoc approach, we again call upon our supreme court to revisit the issue of when the Commonwealth is required to present expert testimony to secure a conviction under section 3731(a)(4). Presently, this decision lies almost exclusively with the trial court. Such a result is arbitrary and improper. The trial courts are still free to determine which finders of fact will have the benefit of expert testimony to aid their determinations of whether defendants possessed BAC's of 0.10% at the time they were driving. In a case where the trial court determines that expert testimony is unnecessary, the fact-finder will remain free to engage in speculation as to whether the defendant's BAC was above the legal limit at the time he or she was driving. In a case where the trial court determines that expert testimony is needed, the fact-finder will have before it a scientific method to aid in its determination. Instead of this arbitrary result, as Judge Schiller notes in Curran, supra,
In order for a fact-finder to determine whether a person who had a BAC of greater than 0.10% some period of time after he or she was driving, also had a BAC of 0.10% while driving, the fact-finder must possess knowledge of how to "relate back" the BAC reading. Clearly, such a calculation is beyond the knowledge and skill of the average person. See generally Allen, supra (Cirillo, P.J., dissenting); Slingerland, supra (Cirillo, P.J., dissenting).
the Commonwealth should bear the burden of producing relation[-] back testimony in all cases in which it seeks to introduce a blood/alcohol test result; otherwise, the result standing alone calls for the jury to make a scientific determination related to blood/alcohol absorption rate without an adequate foundation.
Curran, 700 A.2d at 1336 (Schiller, J., concurring). See Commonwealth v. Paschall, 482 A.2d 589 (Pa.Super. 1984) (a criminal conviction cannot be based upon impermissible speculation); Commonwealth v. Croll, 480 A.2d 266 (Pa.Super. 1984) (same). We agree.
¶ 46 Further, because a blood alcohol test is the only means of proving a violation of section 3731(a)(4) as it is presently written, the Commonwealth should be required to introduce expert relation-back testimony in all cases where it seeks a conviction under this section. See note 4 supra. Anything less unfairly shifts the burden of proof to the defendant and permits the factfinder to engage in unnecessary speculation. To permit the trier of fact, jury or judge, to calculate a defendant's BAC at the time he was driving without the benefit of expert testimony, and without knowing the person's weight, metabolic rate, and factors such as whether and what the person ate while drinking, is akin to permitting a person to calculate a complex multiplication problem when he or she not only does not know how to multiply, but also does not even know what to multiply. It is a mere guess, a shot in the dark. The Constitutions of this nation and this Commonwealth prohibit us from upholding a criminal conviction based on such an arbitrary procedure.
¶ 47 Finally, in light of our learned colleague's dissent, we must address Murray's second issue, in which he questions the propriety of the judge's charge to the jury.
¶ 48 As the dissent correctly observes, Murray frames the second issue poorly. In the second issue, Murray asks whether it was error for the trial judge to charge the jury in a certain manner. In fact, the trial judge did not so charge. However, this is not the only manner in which Murray frames his second issue. He phrases it only once as quoted by the dissent, but twice in a different manner that does not contain this factual error.
¶ 49 The issue as quoted by the dissent is taken from the "Statement of Questions Involved" section of Murray's brief to this court. However, in both the "Table of Contents" and in the "Argument" sections of his brief, the second issue is framed as follows: "The Commonwealth did not present sufficient evidence to get to the jury on the charge under § 3731(a)(4)." In this issue, Murray argues first that although the trial court instructed the jury to consider the BAC test result and all of the other evidence, there was and could legally be no other evidence to support a guilty verdict on the charge of violating section 3731(a)(4); second, that the BAC result itself was insufficient; and, third, that therefore, there was insufficient evidence even to get to a jury. The phrasing we have here quoted is consistent with Murray's "Argument" section, as well as clear and without factual error. The alternate phrasing quoted by the dissent contradicts the "Argument" section, contains factual error, and is inconsistent with the rest of Murray's brief. Therefore, we choose to treat the issue as it is stated in the "Argument" and "Table of Contents" sections of Murray's brief and argued throughout his brief.
¶ 50 We cannot mention this deficiency without also noting with extreme displeasure that the Commonwealth did not even see fit to file a brief in this critical case of first impression. It attempted to submit one to the panel at oral argument. Its brief contained neither a table of contents nor a table of citations, cited none of the cases herein discussed, improperly attempted to introduce new evidence, and was otherwise woefully deficient. In light of this, we need not even have permitted the Commonwealth to present oral argument. Pa. R. A. P. 2188. However, we listened to the Commonwealth's response.
We refused to accept it, although a court crier was instructed to hold it and wait for tables of contents and citations, which the Commonwealth promised it would deliver. It did not deliver them.
¶ 51 The "Argument" section of Murray's brief contains the following language:
Ultimately, this Court must determine whether a case such as the present case offers sufficient evidence, in light of the jury instruction given under § 3731(a. 1), to support a conviction under § 3731(a)(4). Here, Judge White instructed the jury that it could consider the blood test result together with all of the other evidence, in arriving at its verdict on the charge of driving while Appellant's BAC level was [0]. 10% or greater. In this case, there was no other evidence to support a guilty verdict. The evidence offered by the Commonwealth was insufficient to get to the jury even under § 3731(a.1), because the blood test result and the § 3731(a.1) instruction were all the Commonwealth had.
Murray is correct. As quoted by the dissent, the judge's charge was an error of law of such magnitude that it would provide a full and sufficient reason for our reversal, even were we not holding the statute unconstitutional.
¶ 52 We must apply and may not evade the decisional law of our supreme court. Commonwealth v. Randolph, ___ Pa. ___, ___, 718 A.2d 1242, 1245 (1998). Our analysis leads us to the conclusion that, as to the jury instruction, Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995), is controlling.
¶ 53 In Loeper, a case factually quite similar to Murray's, the BAC result was 0.141%, obtained two hours after driving. The trial court allowed testimony that, as he drove by, the defendant had struck a police officer engaged in an unrelated traffic stop, and that defendant had slurred speech when stopped. However, the charge of § 3731(a)(1) had been dismissed prior to trial and only the charge of (a)(4) was before the jury. Id.
¶ 54 On review, this court found the BAC result insufficient to convict under Jarman and Modaffare, with which our supreme court later agreed. However, we nonetheless relied on the additional evidence of intoxication to uphold the defendant's conviction of (a)(4), as the dissent would have us do in Murray's case. Our supreme court reversed us on this particular point, stating:
Quite simply, given the framework of Section 3731, evidence beyond that provided by scientific BAC testing is not relevant to a determination of whether an accused violated subsection (a)(4).
To hold otherwise would eliminate the distinction between subsection (a)(4) and subsection (a)(1), which by virtue of the enactment of subsection (a)(4) the Legislature clearly could not have intended. Subsection (a)(1) is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving. However, in 1982, when the Legislature amended Section 3731 by adding subsection (a)(4), it defined one form of evidence, BAC test results of .10% or greater, which would conclusively establish an element of the offense of driving under the influence of alcohol. That is, an accused is under the influence of alcohol to a degree that renders him incapable of safe driving as a matter of law if his BAC is .10% or greater. This definition, by its very nature and existence requires that the Commonwealth satisfy its burden solely through competent BAC test results in order to support a conviction pursuant to subsection (a)(4). In the absence of such evidence, the prosecution, by necessity, becomes one pursuant to subsection (a)(1). If it does not, subsection (a)(4) would be rendered meaningless in violation of the well established principle of statutory construction that every statute shall be construed, if possible, to give effect to all its provisions. 1 Pa.C.S.A. § 1921(a).
Accordingly, we hold that where, as in the matter sub judice, an accused is not defending a charge of violating subsection (a)(1), evidence beyond scientific BAC testing is not only irrelevant, but prejudicial. Appellant's BAC test results alone were insufficient to establish a violation of subsection (a)(4), and no abundance of impairment evidence could have remedied this shortcoming. Rather, such could serve only to have prejudiced Appellant by swaying a jury, already forced into speculation by the insufficiency of the BAC test results, to find that Appellant possessed a BAC of .10% or greater at the time he operated a motor vehicle in violation of subsection (a)(4).
Loeper at 402-403, 663 A.2d at 673-74.
¶ 55 Here, Judge White first gave separate and unquoted jury instructions as to the (a)(1) charges, and then, as quoted by the dissent, prefaced the challenged instructions, "I move now to Count 2, which is the (a)(4) violation." As the dissent correctly observes, when he was giving his instructions to the jury specifically regarding the (a)(4) charges, "Judge White did not charge the jury that it could convict Murray `solely on the basis of a chemical test result' . . . . [but instead] concluded that the BAC is `some evidence,' but `it does not mandate such a finding, unless you consider all the credible evidence that would bear on the issue.'"
¶ 56 We believe that, given the law as it stands in (a)(4), together with Loeper, Judge White should have charged the jury that it could only convict Murray of (a)(4) "solely on the basis of a chemical test result." We also believe that his instruction that the jury should consider "all the credible evidence that would bear on the issue" in addition to the BAC test is fundamentally at odds with Loeper. Under Loeper, this instruction would only have been proper if it pertained solely to the (a)(1) charge. However, as given, it pertained solely to the (a)(4) charge. We find his instructions on the (a)(4) charge to have been reversible error under Loeper.
¶ 57 However, without reference to Loeper, the dissent continues:
Here, the trial court instructed the jury to consider the impact of section (a. 1) only in the light of "all the other evidence in the case" and further instructed the jury that a finding of a BAC of 0.10% or higher would be improper unless the jury considered all credible evidence that would bear on the issue. When the statute is applied as directed by the trial court, I cannot conclude that it offended due process or otherwise violated constitutional proscriptions.
Dissenting opinion at ___, slip. op. at 5.
¶ 58 In light of Loeper, we cannot agree that the manner in which the trial judge applied the statute was proper. In fact, it violated the mandate of our supreme court directly. Since the trial court's instructions impermissibly allowed the jury to consider evidence aside from the BAC test result when deliberating on the charges of section 3731(a)(4), and since the BAC evidence itself was insufficient to convict under Jarman and Modaffare, we agree with Murray as to his second issue. We find it of sufficient merit to have reversed for that reason alone.
¶ 59 However, we need not, and do not, rely upon this as a separate and independent reason to reverse. Reading the trial court's jury instructions, we find that the error was a result of the confusion engendered by section 3731(a. 1), specifically the phrase "prima facie evidence." Murray's second issue, in our view, presents not a separate and distinct error, but instead a prime illustration of the vagueness and overbreadth of section 3731(a. 1). The unconstitutionality of that statute is the cause from which the error springs.
¶ 60 Judgment of sentence reversed and vacated. Jurisdiction relinquished.
¶ 61 Del Sole, J. files a Concurring Statement.
¶ 62 Johnson, J. files a Dissenting Opinion.
¶ 1 I join the Majority insofar as it determines that, in applying the analysis contained in Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996), 75 Pa.C.S.A. § 3731 (a. 1) is unconstitutional.
¶ 1 My distinguished colleagues would find Section 3731(a. 1) of the Vehicle Code, 75 Pa.C.S.A. § 3731(a. 1), unconstitutional both on its face and as applied. Because I am unable to reach that conclusion on the record before us, I must respectfully dissent.
¶ 2 Nathan M. Murray was operating his motor vehicle on the streets of the City of Franklin, Venango County, on June 13, 1997, at 2: 08 a. m. Officer Robert Hartle of the Franklin Police Department observed Murray make a right turn on red at an intersection where a sign was posted reading "No Turn on Red." Hartle followed Murray's vehicle and additionally observed Murray make a left turn, then, while in the opposing lane of traffic, make a right turn. Murray then drove over a concrete divider to return to the proper lane of travel. Hartle pulled Murray's vehicle over and administered field sobriety tests on Murray at the scene of the stop. Murray failed the tests. Hartle placed Murray under arrest and took him to the Northwest Medical Center's Franklin Hospital, where his blood was drawn at 2: 42 a.m., thirty-four minutes following his stop by Hartle. A blood alcohol test was performed on Murray's blood that revealed a whole blood alcohol content (BAC) of 0.14%.
¶ 3 A jury convicted Murray of driving under the influence (DUI) of alcohol while the amount of alcohol by weight in the blood was 0.10% or greater. 75 Pa.C.S.A. § 3731(a)(4). The jury acquitted Murray of DUI to a degree which renders a person incapable of safe driving. 75 Pa.C.S.A. § 3731(a)(1). Murray now appeals and presents the following two questions for our review and determination:
1. Is 75 P. S. [sic] § 3731(a. 1) unconstitutional on its face and/or as applied in this case?
2. Was it error for the trial court to instruct the jury that it could find Appellant guilty of driving while his BAC was .10% or greater solely on the basis of a chemical test result of .14% of blood drawn 34 minutes after Appellant last drove?
Brief for Appellant at 2.
¶ 4 I turn first to Murray's second issue and find it to be totally without merit. Murray contends that the trial judge, the Honorable H. William White, P.J., instructed the jury that they could find him guilty "solely on the basis of a chemical test result of .14% of blood drawn 34 minutes after [Murray] last drove." This assertion is belied by the certified record. In pertinent part, Judge White charged the jury as follows:
I move now to Count 2, which is the (a)(4) violation. In that particular charge there are three elements which the Commonwealth has to prove beyond a reasonable doubt. First, the defendant was driving a motor vehicle on a public way, which, of course, is identical to the first element in Count 1. Second, the defendant did so while the amount of alcohol by weight in his blood was .10 or greater, that's the core issue in the case, as he operated the motor vehicle. Not at 2: 42, but at 2: 08 a. m., was his blood alcohol .10 or greater. And third, the defendant knew or should have known that he was driving, operating or in actual physical control of the movement of the vehicle and that he previously consumed alcoholic beverages.
Now, in deciding whether the defendant's blood alcohol was .10 or greater by weight, you may consider the results of the blood test administered at the hospital. Again, the testimony was that it was administered at 2: 42 a. m., and that it was .14. You will have Exhibit 1 to consider. Now with regard to Count 2, which, again, we refer to as the (a)(4) violation, which I've just gone over the elements with you, there is a statute enacted by our legislature that provides that it is prima facie evidence that an adult at a .10 percent or more by weight of alcohol in his or her blood while at the time of driving, operating or being in actual physical control of the movement of the vehicle, if the amount of the alcohol by weight in the blood of the person is equal to or greater than .10 percent at the time the chemical test is performed on a sample of the person's breath, blood or urine, so long as the test is done within three hours of operating the motor vehicle.
Now, the effect of that legislation is that you may consider this evidence in this case. The testimony, the Commonwealth contends, establishes a blood alcohol test was done at 2: 42 a.m., the defendant was driving at some point at 2: 08 a.m., or earlier, the blood alcohol test result, according to the Commonwealth's theory on Exhibit 1 was .14 percent. That test result, if found by you to be, accurate permits you to infer from that that the defendant had a blood alcohol of .10 or above at the time he operated the motor vehicle. However, that is simply a mechanism to permit you to infer it. You may not infer it unless you consider all the other evidence in the case and are satisfied beyond a reasonable doubt that the defendant had a blood alcohol of .10 or greater at the time he operated the motor vehicle. I'm simply telling you that this is some evidence, it does not mandate such a finding, and it would be improper to make such a finding, unless you consider all the credible evidence that would bear on the issue.
N. T., 11/17/97, at 159-61.
¶ 5 Judge White did not charge the jury that it could convict Murray "solely on the basis of a chemical test result." On the contrary, the court instructed the jury that it could "consider the results of the blood test" and then cautioned the jury that the BAC "is simply a mechanism to permit [the jury] to infer [a BAC of 0.10% or better]". Judge White further instructed the jury that it could not even infer that conclusion unless the jury considered "all the other evidence in the case." On this point, the court concluded that the BAC is "some evidence," but "it does not mandate such a finding, unless you consider all the credible evidence that would bear on the issue."¶ 6 This second issue, as posed by Murray in his brief, asks this Court to rule on a factual situation that is not borne out by the record. As presented, the issue misstates Judge White's charge to the jury. I would find the issue set forth in Murray's second question, that asks us to find error in Judge White's jury charge, to be without merit.
¶ 7 In his first issue, Murray asks us to consider whether Section 3731(a. 1) is unconstitutional on its face and/or as applied in this case. For the reasons set forth above, I could not find that Section 3731(a. 1) was applied in this case in such a manner as to offend the constitution. Murray argues, and my colleagues seemingly agree, that the section "creates a presumption of guilt and improperly shifts the burden of proof to the accused on the ultimate factual issue." I decline to evaluate the constitutionality of the section out of context. Here, the trial court instructed the jury to consider the impact of section (a. 1) only in the light of "all the other evidence in the case" and further instructed the jury that a finding of a BAC of 0.10% or higher would be improper unless the jury considered all credible evidence that would bear on the issue. When the statute is applied as directed by the trial court, I cannot conclude that it offended due process or otherwise violated constitutional proscriptions. Because we are an error correcting court, I would decline to embark on an evaluation of the facial constitutionality of the statute where, as here, the trial court's instruction neither violated due process nor caused Murray to suffer any harm.
¶ 8 I am unable to find a constitutional violation on the record before us. Consequently, I find it unnecessary to embark on a broad ranging review of the history and jurisprudence in this area of the law. I do not believe that this case presents the proper vehicle for a review and evaluation of the facial constitutionality of Section 3731(a. 1). Because I find the charge given by Judge White to be completely compatible with existing law, I would decline to consider the first portion of Murray's first issue.
¶ 9 Because I find the issue on this appeal to be without merit, I would affirm the judgment of sentence and postpone the examination of the constitutionality of Section 3731(a. 1) to another day. Accordingly, I must respectfully dissent.