Monday, February 21, 2011

DUI Appeal of the Day (DAD) - Frustration of Purpose Doctrine and Refusals

In Commonwealth of Pennsylvania v. Xander, --- A.3d ----, 2011 WL 576094 (Pa.Super.), 2011 PA Super 33, the defendant was found guilty following a jury trial of DUI, and a also a penalty enhancement after the jury answered an interrogatory fining that the defendant had also refused to give a sample for testing. The trial court threw out the refusal, finding that the driver was not read the statutory warning. A DVD recording of Appellee's interaction with Officer Kaintz and the phlebotomist was presented at trial as a Commonwealth exhibit. The video and audio recording shows Appellee repeatedly asking for her “attorney rights” and informing Officer Kaintz and the phlebotomist that she will not answer any questions. See Certified Record (C.R.) at 36; Commonwealth Exhibit 1. Officer Kaintz attempts to explain to Appellee that she does not have the right to an attorney during processing, as they are not asking guilt-seeking questions, and are only attempting to book her and conduct a blood draw. Id. Appellee informs Officer Kaintz and the phlebotomist that “you ain't f* * *ing taking no blood test on me.” Id. Throughout the DVD recording, Appellee indicates her unwillingness to proceed any further, and at the conclusion of the video, Appellee is instructed “this concludes the processing of Alice Xander, we are done.”

The Commonwealth appealed, arguing that the statutory warning was not a mandatory prerequisite to an enhanced refusal penalty. Further, the Commonwealth relied on the “frustration of purpose” doctrine for the proposition that Appellee's behavior prevented Officer Kaintz from being able to warn Appellee of her rights, and therefore the warnings were 'excused'. The state cited to several cases where the defendant's behavior rendered the warning

First, the appeals court found that the necessity of reading the warnings was not explicitly stated in the statute, but that it was necessarily implied. The appeals court agreed with the trial court's statement that "because the General Assembly specifically included a requirement in § 1547(b)(2)(ii) that the police warn arrestees of the enhanced penalties for a refusal, a ‘refusal’ for purposes of § 3804(c) necessarily requires a knowing refusal insofar as the police must have provided the arrestee with the warnings beforehand.”

Second, the trial court found that the State's other case involving conduct that amounted to a refusal was dissimilar:

"Notably, in almost every instance, the officers try, in many circumstances repeatedly, to explain the consequences of refusing chemical testing on an uncooperative motorist. The trial court herein notes, however, that the facts before it are distinguishable from this line of cases in three ways. First, Officer Kaintz never attempted to read Appellee the § 1547(b) warnings and request a blood draw, as Appellee would not ever answer the basic booking questions asked of her. Trial Court Opinion, 6/29/10, at 21-22. This finding is supported by the DVD offered by the Commonwealth and viewed by the trial court as well as this Court. Second, “there [was] nothing about [Appellee]'s behavior that was so disruptive that the officer could not have read her implied consent warnings[.]” * * * Third, “the entire process lasted only three minutes and thirteen seconds” and that “[a]lthough [Appellee] (again, wrongly) claimed she was entitled to counsel before responding to the routine booking questions, she appeared to listen to the officer's questions and respond thereafter, albeit with an incorrect concept of the law.”

Thus, the trial court's judgment of acquittal was affirmed.

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