Commonwealth v. Beshore

A. Should Actof 2003of 2003 be analyzed under the strict scrutiny test as effecting [sic] a fundamental right?

B. Does Actof 2003of 2003 violate the United States Constitutional Amendment 5 as being void for vagueness?

C. Does the statute violate the5thAmendment of the United States Constitution if it is overly broad in its applicationPage 1133to constitutionally protected activity?

D. Does the Actof 2003of 2003 violate the due process guarantees in that it permits and promotes arbitrary and discriminatory enforcement by police officers?

E. Is Actof 2003of 2003 arbitrary in its application and therefore violative of the due process guarantees of the constitution?

F. Does Actof 2003of 2003 violate the defendant's 6th Amendment right to counsel at a time of request for chemical test or refusal to take such test?

G. Does the Act violate the defendant's 5th Amendment right to remain silent?

H. Does Actof 2003of 2003 violate the equal protection clause by creating classifications that do not bear a rational relationship to a legitimate state interest?

I. Does Actof 2003of 2003 violate the due process clause of the federal and state constitutions and the notice and trial guarantees of the 6th Amendment by increasing the penalty for a crime without charging the element that increases that penalty and without requiring proof of that element?

J. Does Actof 2003of 2003, as it amends § 6308 of the Motor Vehicle Code, violate the Pennsylvania Constitution, ArticleI, §8and §4?

K. Are the penalty provisions of Actof 2003of 2003 ambiguous and inconsistent with other provisions of the act so as to fail to provide notice to the accused that his contemplated conduct is unlawful?

[W]hen evaluating challenges to a statute-whether those challenges are based on vagueness, overbreadth, the Commonwealth's burden of proof, the right to defend, or any other considerations-we must also keep in mind that there is a strong presumption that legislation is constitutional. A party challenging legislation bears a heavy burden to prove otherwise. Accordingly, this Court will strike the statute in question only if Appellant convinces us that it clearly, palpably and plainly violates the federal or state constitutions.

When addressing an equal protection challenge, we must initially ascertain the appropriate degree of scrutiny to which the challenged act is to be subjected. Equal protection analysis recognizes three types of governmental classification, each of which calls for a different standard of scrutiny. The appropriatePage 1134standard of review is determined by examining the nature of the classification and the rights thereby affected.

In the first type of case, where the classification relates to who may exercise a fundamental right or is based on a suspect trait such as race or national origin, strict scrutiny is required. When strict scrutiny is employed, a classification will be invalid unless it is found to be necessary to the achievement of a compelling state interest.

The second type of case involves a classification which, although not suspect, is either sensitive or important but not fundamental. Such a classification must serve an important governmental interest and be substantially related to the achievement of that objective.

The third type of situation involves classifications which are neither suspect nor sensitive or rights which are neither fundamental nor important. Such classifications will be valid as long as they are rationally related to a legitimate governmental

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. [Commonwealth v.Mikulan,504 Pa. 244,251,470 A.2d 1339,1342(1983)],quoting, Kolender v. Lawson,461 U.S. 352,357,103 S.Ct. 1855,1858,75 L.Ed.2d 903(1983).See Commonwealth v. Burt,490 Pa. 173,177-78,415 A.2d 89,91(1980),quoting,Colautti v. Franklin,439 U.S. 379,390,99 S.Ct. 675,683,58 L.Ed.2d 596(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 future conduct.Commonwealth v. Heinbaugh,467 Pa. 1,6,354 A.2d 244,246(1976),citing,United States v. Powell,423 U.S. 87,94,96 S.Ct. 316,320-21,46 L.Ed.2d 228(1975).

§ 3802. Driving under influence of alcoholor controlled substance

(a) General impairment.—

(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(b) High rate of alcohol.— An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c) Highest rate of alcohol.— An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

Our rules of statutory construction and interpretation provide that we are to attempt to ascertain the effect of the legislature.1 Pa.C.S.A. § 1921. If the language leaves any doubt, we can consider,inter alia, the mischief to be remedied by the statute, and the object to be obtained.Id.We are to presume that the legislature did not intend a result that is absurd or unreasonable.Id., § 1922. Also, "courts are not required to give the words of a criminal statute their narrowest meaning or disregard the evident legislative intent of the statute."Barud,supra, at 304,681 A.2d at 165. Further, as appellant notes, the title and preamble of a statute may be considered in its construction.Id., § 1924.

Applying the above, we conclude the following. It is quite clear from the title of Section 3802,Driving under influence of alcohol or controlledsubstance, that the mischief the legislature seeks to remedy is, in fact,driving while underthe influence of alcohol or a controlledsubstance.It would be utterly absurd and unreasonable to suggest that a person who imbibed a sufficient amount of alcohol such that he is rendered incapable of safe driving will, from that time forward, even after becoming sober, forever be in violation of the statute if he proceeds to drive. Surely, an enormous number of licensed drivers, at one time or another, have imbibed alcoholPage 1136to the point of being incapable of safe driving. The legislature certainly did not intend a result that would prohibit a vast number of licensed drivers from ever driving again. We simply cannot accept appellant's interpretation.

Moreover, we conclude this provision is not vague. It gives a person of ordinary intelligence notice that he may not drive after imbibing a sufficient amount of alcohol such that he is incapable of driving safely. As the trial court explained, "the time elapsed between the act of driving is irrelevant. The only relevant issue . . . is the capacity to drive safely and whether any found incapability iscausallyrelatedto the consumption of alcohol."

From theMikulanreasoning, we distill the following proposition: It is constitutionally permissible to require drivers to predict their BACs at some reasonable future time after drinking. Under the old statute, the relevant future time was the period during which the person might be driving. Under the new statute, the relevant future time is the period within two hours after driving.

We believe it is no more difficult for drivers to predict their BACs within two hours after driving than it was to predict them at the time of driving. Both predictions involve a general estimation. Drivers know what they weigh, how much they drink and how much time passes during and after drinking. They are required to know how much alcohol is in their blood and how much has perhaps "worn off. They know how soon after drinking they choose to drive, and they know when two hours after that point will be.

Although the two-hour time period means that drivers have to account for absorption and dissipation rates over those two hours, such considerations have always been an inherent, if unstated, part of the BAC estimation incumbent upon drivers. While it is doubtful that drinkers have ever articulated the terms "absorption" and "dissipation" in the course of deciding whether they should drive, it is undeniable that the statute placed on those drivers the responsibilityPage 1137to realize that a certain amount of alcohol consumed in a certain time period would be absorbed into their blood such that they had a prohibited BAC level. Likewise, it is equally certain that such drinkers had to decide if they had "sobered up" enough — if enough drinks had "worn off — such that they could legally drive. These were implicit, albeit not technically precise, considerations of absorption and dissipation.

The new law is the same. Drinking drivers can estimate their BACs and regulate their conduct. This process of estimating a BAC is not unreasonable, speculative or overly burdensome. It is something that people of common, ordinary intelligence can do. Drivers can gauge their contemplated drinking and driving just as they did under the old law. It is just that they now must keep in mind their BACs for a slightly expanded period of time.

We find it was constitutionally permissible to require Appellant to monitor his conduct so as to ensure that he did not have a prohibited blood alcohol level at any time within two hours of driving. For all of these reasons, we hold that75 Pa.C.S.A § 3802(c) is not void for vagueness.

The current statute is unlike the previous one: There is no longer a statutory provision such as the old § 373[1](a)(4) giving rise to a presumptive legal limit at the time of driving.McCoy,895 A.2d at 33. There is no indication that it is legal to drive below a certain limit or that it becomes illegal to drive above a certain limit.Id.

Furthermore, there is no statutory, constitutional or common law right to drink any amount of alcohol before driving or to drive with any particular BAC.Page 1138Id.Rather, the pertinent inquiry under the current § 3802(c) is whether the person consumed alcohol such that the BAC meets or exceeds 0.16% within two hours after driving.Id.Therefore, Appellant is also wrong to assume that a driver operating a vehicle with a BAC below 0.16% and whose level reaches that mark within two hours has somehow performed a legal act that is wrongly punished. To the contrary, the driver has done something illegal: He or she has had enough drinks such that his or her BAC reached the mark within two hours after driving. Such driving was not constitutionally immune from punishment. The Legislature can and has provided a sanction for such driving in its effort to deter drunk driving. The statute does not punish protected behavior.

We recognize that the title of the statute in question isDrivingUnder the Influence of Alcohol or Controlled Substance.75 Pa.C.S.A. § 3802(emphasis added.) Appellant suggests that, because of this title, the Legislature could only proscribe certain BACs at the exact time of driving rather than during a wider time frame. We will not shackle the Legislature to such precision. In their effort to combat the dangers of drunk driving, the lawmakers have evidently chosen to take an aggressive approach, penalizing offenders for driving if they have consumed enough alcohol to bring them to the proscribed level at any time within two hours after driving.

This approach is admittedly more comprehensive than the old statute which only prohibited BACs at the exact time of operating a vehicle. However, it seems to us that this step is reasonably related to the legitimate, indeed compelling, legislative goal of protecting the health and safety of persons on the roadways.See Mikulan,470 A.2d at 1342(finding that the General Assembly has a compelling interest in protecting citizens against drunk drivers).

This is merely common sense. By enlarging the time period in which a BAC is outlawed, the Legislature more effectively deters drunk driving. This effort is rational and inoffensive to due process. Subsection 3802(c) is not overly broad.

That the Commonwealth has two hours after the individual has driven in which to conduct a chemical test does not make the statute ambiguous. Specifically as to appellant, certainly he cannot argue that he was unaware that he was prohibited from driving with a .233% BAC. Further, as for encouraging arbitrary or erratic enforcement, any discretion is eliminated by the objective standard of BAC. It is simply ludicrous to suggest, as appellant does, that an officer can exercise discretion by somehow knowing just when the person's BAC will peak and will time the chemical test accordingly.

(b) High rate of blood alcohol; minors;commercial vehicles and school buses and schoolvehicles; accidents.— Except as set forth in subsection (c), an individual who violates Section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $500 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $750 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $1,500 nor more than $10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(4) For a fourth or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $1,500 nor more than $10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

While a defendant in an enforcement proceeding generally has standing to assert in his defense any claim, including the constitutionality of a statute, that challenges the authority of the state to impose its force upon him, he does not have standing to object to the constitutionality of a statute unless he is affected by the particular feature alleged to be in conflict with the constitution.

§ 1547. Chemical testing to determine amountof alcohol or controlled substance

(a) General rule.— Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:

(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); or (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

It has been a staple of caselaw dealing with thesixthamendment right to counsel that a criminal defendant has a constitutionally guaranteed right to counsel at all "critical stages" of a criminal proceeding.

. . .

Undoubtedly, the decision whether to submit to chemical testing can be an important tactical decision. If one refuses a BAC test, he may deprive the Commonwealth of valuable evidence andPage 1141force the Commonwealth to proceed under section 3802(a)(1), incapable of safely driving. Depending upon the evidence available to the Commonwealth to prove the driver lacked the capacity to drive safely, the absence of a BAC test may hinder the Commonwealth's case and even lead to an acquittal even though the possibility existed that the driver was over the proscribed BAC limit. Conversely, refusing to submit to a BAC test comes with consequences, including, if convicted, punishment as if the defendant had operated a motor vehicle at the highest rate of alcohol. Thus, it cannot be doubted that the decision to consent to a BAC test has strategic implications and, in this respect, might be deemed "critical" to the defendant.

However, it does not appear that such strategic tactical decisions have been recognized as critical stages of the proceedings so as to invoke the right to counsel. A request to submit to a BAC test represents the government's efforts to gather evidence already in existence, albeit in a transitory or unstable state which makes time of the essence. As the quote above indicates, encounters involving the gathering of evidence are not considered "critical proceedings" for purposes of the right to counsel. That is, such preliminary encounters do not affect the inherent "fairness" of the trial vis-à-vis the ability to cross-examine witnesses or have effective assistance of counsel at the trial itself. As such, the provision of counsel at this stage is not constitutionally mandated and the denial of the right to confer with counsel prior to deciding whether to submit to chemical testing does not render Appellant's refusal inadmissible.

(e) Refusal admissible in evidence.— In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

Although appellant acknowledges that § 1547(e) of the Motor Vehicle Code permits a defendant's refusal to submit to chemical testing to be introduced at trial, appellant argues that this provision is unconstitutional because it attaches a penalty to his exercise of a constitutional right. The constitutional right he claims is his right to refuse the blood test, and the penalty he alleges is the authority of the Commonwealth to inform the factfinder that the defendant refused to take the test.

Appellant's argument is flawed for several reasons. First, contrary to his assertion, appellant had no constitutionalPage 1142right to refuse the blood test. Therefore, § 1547(e) does not burden appellant's constitutional rights by allowing evidence of his refusal to consent to be admitted at trial. Appellant's right to refuse the blood test is derived only from § 1547 itself and not from the Constitution. As explained by our supreme court inCommonwealth v. Stair,548 Pa. 596,699 A.2d 1250(1997), under our Implied Consent Law, there is:

no constitutional right to refuse chemical testing. . . . [D]riving in Pennsylvania is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the Vehicle Code. . . . Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing, when requested to do so by an authorized law enforcement officer in accordance with the prerequisites of the Implied Consent Law. The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license.

Id.

Indeed, the United States Supreme Court has also made it clear that a defendant does not have a constitutional right to refuse blood tests.Schmerber v. California,384 U.S. 757,86 S.Ct. 1826,16 L.Ed.2d 908(1966). TheSchmerberCourt noted that while blood test evidence may be "an incriminating product of compulsion," such evidence in no way implicates an accused's testimonial capacities and therefore, its admission does not offend the privilege against self incrimination embodied in thefifthamendment.Seeid.at 765,86 S.Ct. at 1832-33. The Court noted that thefifthamendment privilege relates to testimony or communication from an accused. The privilege does not prevent the police from using the accused's body or blood as physical evidence when it is material.Id.at 763-64,86 S.Ct. at 1831-32.

Taking this analysis another step, the United States Supreme Court has further reasoned "that since submission to a blood test could itself be compelled, . . . a State's decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial [does] not `compel' the suspect to incriminate himself and hence [does] not violate the privilege."Pennsylvania v. Muniz,496 U.S. 582,604n. 19,110 S.Ct. 2638,2652n. 19,110 L.Ed.2d 528(1990) (citations omitted).See also SouthDakota v. Neville,459 U.S. 553,563,103 S.Ct. 916,922,74 L.Ed.2d 748(1983) ("the values behind theFifthAmendment are not hindered when the State offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him"). This court has previously joined the Supreme Court in this sentiment.See Commonwealth v.Dougherty,259 Pa.Super. 88,393 A.2d 730(1978) (admission into evidence of defendant's refusal to submit to breathalyzer test not violative of defendant's privilege against self incrimination);Commonwealth v. Robinson,229 Pa.Super. 131,324 A.2d 441(1974) (admission into evidence of defendant's refusal to submit to breathalyzer test under implied consent law does not violate defendant'sfifthamendment privilege against self-incrimination).

Section 1547(e) merely represents a codification in Pennsylvania of the rule ofNevilleandSchmerberexpressly permitting refusals to be made known to the factfinder where the police reasonably believe that the defendant is under the influence of alcohol or a controlled substance. Because it is clear that appellant had no constitutional right toPage 1143refuse the blood test, § 1547(e) does not burden appellant's constitutional rights by allowing evidence of his refusal to consent to be admitted at trial.