DUI law - Confrontation Clause Doesnt Apply to Calibration Breath Records

In Commonwealth v. Dyarman, --- A.3d ----, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245 the court was asked to decide whether the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause. They ruled that the logs did not so violate.

"In this matter, unlike in Barton–Martin, the individual who actually performed Appellant's BAC analysis (Officer Gsell) testified as to the accuracy of that test and as to the specific results received with regard to Appellant. Nevertheless, Appellant claims that admission of the calibration logs for the device used to determine Appellant's BAC, without the testimony of the person who performed the actual calibration, violated her right under the confrontation clause. Appellant's Brief at 10–15. Appellant argues that the calibration logs are testimonial in nature, such that application of Melendez–Diaz and Barton–Martin should prohibit their admission through the business records exception of the hearsay rule. Id. at 13. We disagree."

"Here, the calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant's BAC; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez–Diaz, and Barton–Martin."

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DUI Law - Drugged Driving Trial Doesnt Need Expert Say Pa Court

In Pennsylvania v. Griffith, --- A.3d ----, 2011 WL 5176800 (Pa.) the issue presented was whether expert testimony is required to convict a defendant of driving under the influence of a drug or combination of drugs, when the drugs in question are prescription medications. The trial court concluded that expert testimony was required under this statutory provision, and this appeal then ensued.

The facts showed that on May 31, 2006, Appellee was charged by criminal complaint with driving under the influence of a drug to a degree which impairs the ability to drive safely, following an incident that took place on May 5, 2006. The criminal complaint was based on an eyewitness's account of the reckless and dangerous manner in which Appellee was driving; on a police officer's observations of Appellee, including her failure to pass three field sobriety tests; and on the detection in Appellee's blood of Diazepam (Valium), at 95 nanograms per milliliter, and Nordiazepam, at 220 nanograms per milliliter, along with Appellee's acknowledgement that she had taken a different prescription medication, specifically, Soma 350, on the morning of the incident. Police also found prescription pill bottles for Soma in the open center console of Appellee's vehicle.

A bench trial was held on March 7, 2007, at which only two individuals testified: the eyewitness who observed Appellee's reckless driving and then called 911, and Officer William H. Dillman, the experienced police officer who responded to the call. In addition, the parties stipulated that both Diazepam and Nordiazepam are Schedule IV controlled substances, and that the amounts found in Appellee's bloodstream were, respectively, just below or in the therapeutic range. The trial court convicted Appellee.

A divided panel of the Superior Court reversed Appellee's conviction. Although no member of the panel disputed the trial court's finding that Appellee was incapable of safely driving on the afternoon of the incident that led to her arrest, the majority held that the evidence was insufficient to sustain Appellee's conviction. Commonwealth v. Griffith, 985 A.2d 230, 235–36 (Pa.Super.2009). Under the majority's reasoning, the laboratory tests revealed only the presence of prescription medications in Appellee's blood, and it was improper for the fact-finder to infer the effect of those prescription medications on the human body in the absence of expert testimony. Id. at 236. The majority contrasted the generally understood intoxicating effect of alcohol with the various effects of prescription medications: the effect of alcohol “is widely known and recognized by the average layperson, [but] the same cannot be said [concerning the effects] of prescription medications.” Id. Accordingly, the panel majority set forth a rule requiring expert testimony as to the effects and interactions of prescription medications when such medications are the alleged intoxicants in a subsection 3802(d)(2) prosecution. Id.

The statute at issue is the following:

(d) Controlled substances.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of following circumstances:


(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

On appeal from the appellate court's reversal of the conviction, the Supreme Court concluded that expert testimony was not an absolute prerequisite, stating:


"After analyzing the relevant statute in its entirety and in its proper context and considering the Superior Court's analyses discussed above, we decline to read into subsection 3802(d)(2) a mandatory requirement for expert testimony to establish that the defendant's inability to drive safely was caused by ingestion of a drug, even if it is a prescription drug, or drug combination. We do not dispute that in some cases, depending on the specific facts and circumstances, expert testimony may be helpful, or perhaps even necessary, to prove causation under subsection 3802(d)(2), but we decline to hold that the need for expert testimony is inherent in the statutory provision and thus mandatory in all cases."


"Our decision derives, in large part, from a comparison of those provisions of Section 3802 that concern alcohol consumption versus those that concern drug usage. Most of the alcohol-related provisions, i.e., subsections 3802(a)(2), (b), and (c), prohibit driving after an individual has imbibed sufficient alcohol such that the alcohol concentration in that individual's blood or breath reaches certain, specific levels within two hours after driving. To prove the specific level of alcohol in the defendant's blood or breath at the relevant time, a blood or breath test is obviously required. In contrast, under the general impairment provision set forth in subsection 3802(a)(1), a blood or breath test to determine alcohol level is not required; rather, a different standard is used, to wit, “imbibing a sufficient amount of alcohol such that [one] is rendered incapable of safely driving.” We have made clear that Section 3802 neither specifies nor limits the type of evidence that the Commonwealth may proffer to prove its case under subsection 3802(a)(1). Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009) (citing Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa.Super.2006)). Although the Commonwealth may proffer evidence of alcohol level and/or expert testimony to establish that the defendant had imbibed sufficient alcohol to be rendered incapable of driving safely, it is not required to do so under subsection 3802(a)(1). Id. This is well-established, long-standing law in Pennsylvania. See, e.g., Commonwealth v. Horn, 150 A.2d 872, 875 (Pa.1959) (under a prior version of the statute, making clear that medical opinion is admissible but not required to prove that a defendant operated a motor vehicle while under the influence of intoxicating liquor). As we stated in Segida, supra at 879, “[r]egardless of the type of evidence that the Commonwealth proffers to support its case, the focus of subsection 3802(a)(1) remains on the inability of the individual to drive safely due to consumption of alcohol-not on a particular blood alcohol level.” Thus, as an important practical consequence of this statutory scheme, a drunk driver who declines to submit to a blood or breath test to determine alcohol level can still be charged with and convicted under subsection 3802(a)(1) if the Commonwealth can prove that he or she drove after imbibing a sufficient amount of alcohol such that he or she was rendered incapable of safely driving."

The General Assembly chose to construct a similar statutory framework with regard to prohibitions against driving after drug usage. First, subsection 3802(d)(1) prohibits one from driving if there is any amount of a Schedule I controlled substance, any amount of a Schedule II or Schedule III controlled substance that has not been medically prescribed for the individual, or any amount of a metabolite of a controlled substance in one's blood. Analogously to subsections 3802(a)(2), (b), and (c) for alcohol intoxication, subsection 3802(d)(1) requires a measurement to determine if any amount of a Schedule I, II, or III controlled substance is detectable in the defendant's blood. Second, and analogously to subsection 3802(a)(1) for alcohol intoxication, subsection 3802(d)(2) prohibits driving if one is “under the influence of a drug or combination of drugs to a degree which impairs [one's] ability to safely drive.” This provision by its plain text does not require that a drug be measured in the defendant's blood, nor does it specify any particular manner by which the Commonwealth is required to prove that the defendant was under the influence of a drug. Like subsection 3802(a)(1), see Segida, supra at 879, subsection 3802(d)(2) does not limit, constrain, or specify the type of evidence that the Commonwealth can proffer to prove its case. Given the general nature of subsection 3802(d)(2)'s prohibition, the textual similarity of subsection 3802(d)(2) to subsection 3802(a)(1), and Section 3802's overall structure, we decline to impose a requirement for expert testimony in all prosecutions under subsection 3802(d)(2)."

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DUI Appeal - Pennsylvania Asthma Issue Reverses Suspension

In Martin v. Commonwealth of Pennsylvania, --- A.3d ----, 2011 WL 1886459 (Pa.Cmwlth.) the defendant was arrested for DUI. At the station, told the officer that he had asthma. The defendant tried to blow without success 4 or 5 times. He was cited for a refusal. The police officer testified that a person with asthma should have no problem submitting, and that they usually provide an adequate sample after he gives them "a talking to."
On appeal, it was noted that the defense offered the deposition testimony of Kenneth Hurst, M.D. Dr. Hurst testified that he has treated Licensee for asthma since 2001 and for chronic obstructive pulmonary disease (COPD) since 2005. (Hurst Dep., 4/21/10, at 5, R.R. at 53.) Dr. Hurst stated that: (1) asthma and COPD are different diseases, ( Id. at 10–11, R.R. at 58–59); (2) Licensee was aware of his COPD prior to the August 21, 2009, arrest, ( Id. at 20, R.R. at 68); (3) Licensee was not aware of the seriousness of his COPD until September 9, 2009, after the arrest, when Dr. Hurst performed a pulmonary function test, which was “the first confirmatory test that was ordered on him,” ( Id. at 12, R.R. at 60); (4) before the test, “nobody really knew how bad it was,” ( Id. at 20, R.R. at 68); (5) before the test, Licensee's physicians discussed his medical condition with him as “both asthma ... and COPD,” ( Id.); and (6) because of his COPD, Licensee could not have completed the breath test without medication, ( Id. at 7–9, R.R. at 55–57).

In an earlier case called Hatalski v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 390 (Pa.Cmwlth.1995) (emphasis added), a Pa. court stated:

"[W]here a licensee suffers from a medical condition whose existence, 1) affects the licensee's ability to perform the test and 2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered."

The state argued that it was the COPD that caused the insufficient sample, and that since the defendant had only mentioned asthma, then he could not meet the Hatalski conditions. The appeals court, in reversing the driver's suspension, wrote:

"Thus, the reason for requiring a licensee to inform an officer of a medical condition that could affect the licensee's ability to complete one kind of test is to obtain results through a different chemical test. A licensee does not avoid testing by advising the officer of a medical condition, but an officer who does not administer an alternative test upon being informed of a medical condition defeats the purpose of the law if the licensee later presents medical evidence proving that he or she could not complete the test offered because of a medical condition. In the legal scheme, then, it is not the role of an officer to “play doctor” or assess the licensee's credibility."

Finally, the court wrote:

"A licensee is not required to inform officers of an unknown medical condition that would have affected his ability to complete a breath test. Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa.Cmwlth.2000). Here, because the trial court found that Licensee was not aware of the severity of his COPD and because there is no finding that Licensee knew the distinction between his asthma and his COPD, we conclude that, having informed the troopers of his asthma, Licensee was not required to inform them of his COPD."

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DUI Appeal - Pennsylvania - Dice, Fresheners and Reasonable Suspicion

In Commonwealth v. Shabazz, --- A.3d ----, 2011 WL 1459160 (Pa.Super.), 2011 PA Super 81, the defendant appealed the denial of his motion to suppress based upon an illegal stop. The driver claimed that the stop of his vehicle for having foam dice and pine tree air fresheners was illegal. The appeals court first noted that in Pennsylvania, it is only illegal to have items hanging from the rearview mirror when they materially obstruct the driver's view. The defendant in fact cited to a prior Pennsylvania decision where it was held that the stop of a driver who had pine tree air fresheners was illegal, as there was no reasonalbe suspicion of a violation of the statute.

Distinguishing that prior ruling, the appeals court here held that the reason that the prior decision was in favor of the defendant was not based upon the item that was hanging from the mirror - rather the previous case was held in favor of an illegal stop based "on the officer's lack of an articulable and particularized description of the objects he observed hanging from the rearview mirror, and the impact of those objects on the visibility through the windshield." When addressing items hung from a rearview mirror, the court held that “the arresting officer's observations must establish not merely the presence of an object hanging from the rearview mirror, but must raise reasonable suspicion that the object materially obscured, obstructed or impaired the driver's vision through the front windshield.”

The appeals court then enunciated some important principles of law regarding the determination of reasonable suspicion at a hearing on a motion to suppress:

"The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances. It is the duty of the suppression court to independently evaluate whether, under the particular facts of a case, an objectively reasonable police officer would have reasonably suspected criminal activity was afoot. * * * “[I]n order to establish reasonable suspicion, an officer must articulate specific facts in addition to inferences based on those facts, to support his belief that criminal activity was afoot.” (emphasis in original). Thus, the facts must be testified to in support of the reasonableness of the officer's suspicion occasioned by his or her pre-stop observations."

In regard to forcing an officer to actually articulate a basis for reasonable suspicion, the Court made significant observation:

"Were this Court to conclude that an officer's bare testimony that he saw an object hanging from a rearview mirror which obstructed the driver's view, without any additional testimony or other evidence supporting the officer's conclusion that the object materially obstructed the driver's view, was sufficient to demonstrate reasonable suspicion to constitutionally support the intrusion of a vehicle stop, we would obviate the suppression court's role in ensuring there is an objectively reasonable basis for the vehicle stop, and expose every law-abiding motorist who hangs an object from his or her rearview mirror to a potentially unwarranted intrusion."

In the case sub judice, the appeals court found that the officer had sufficiently articulated the size of the objects and their location on the mirror in order to justify the stop of this vehicle. Thus the denial of the motion to suppress was affirmed.


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Sleeping While Intoxicated-Not a Crime in Pennsylvania

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Last month, we learned that sleeping at the wheel while intoxicated isn't a crime in New Mexico. The issue in cases like this is whether the person asleep behind the wheel exercised sufficient control over the vehicle and elicited an intent to operate the vehicle. This very same issue was recently addressed by a court in Pennsylvania. As explained in this Times Leader article, the accused was found asleep behind the wheel of a vehicle with the engine running. When discovered by the police, he smelled strongly of alcohol and a subsequent blood-alcohol test later revealed he had a level of 0.197, nearly 2 times the legal limit. The Pennsylvania court reached the same decision as the New Mexico court, concluding that there was insufficient evidence to establish that that the accused actually operated the vehicle while intoxicated. The rationale for the judge's decision is explained in the article:

The vehicle was parked at the time Verdekal, 27, of West St. Mary’s Road, was discovered, and police could not prove that he had actually operated the car in an intoxicated state...

The key issue in the Verdekal and other cases revolves around a provision within the drunken driving statute that permits police to charge a driver - even if the vehicle is not moving - as long as the officer can show the operator was in “actual physical control” of the vehicle. The problem for police has been in how appellate courts have interpreted what constitutes “actual physical control,” McMonagle said...

(T)he courts have held that police must look at the “totality of the circumstances” in making that call. There must be some other evidence – such as the car being stopped in the middle of the road, or its tire up on a curb – that would indicate the driver had driven the vehicle while intoxicated prior to the arrival of police at the scene.

Once again, the court's decision focused on evidence of control over the vehicle, rather than simply the fact that he was found behind the wheel of a stationary vehicle while in an intoxicated condition. This makes sense. After all, the intent behind DUI laws is to prevent people from driving while intoxicated, since that's when the risks inherent in driving while intoxicated kick in. If you drive a car while under the influence of alcohol, you put others on the road at risk. However, that danger is not present when a person sleeps in a vehicle while intoxicated. For that reason, many states have adopted the rationale behind the New Mexico and Pennsylvania courts' decisions. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Sloppy lab work leads to Toxicology Chief resigning in Indiana

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Two weeks ago we discussed how lab errors in California, Colorado and Pennsylvania resulted in challenges to DUI convictions and the dismissal of a multitude of DUI cases. It looks like Indiana is joining the club. According to this article from IndyStar.com, the director of the Indiana State Department of Toxicology, Michael A. Wagner, has resigned amidst charges of inexcusable lab errors. Allegations include sloppy lab work, excessively long delays in processing specimens, and the failure to perform inspections as required by state law. In the article, Indianapolis defense attorney John L. Tompkins explained the basis for the allegations:

Tompkins, who teaches blood-testing issues to lawyers for their continuing education requirements, said sloppy work is not unusual from the state Department of Toxicology.

Within the past few months, he said, blood-testing reports have come back showing clotted blood being used -- a mistake -- and incomplete documentation of the testing machine's calibration.

Tompkins also contends that the department ignores a state law enacted in 2007...(which) requires the Department of Toxicology to conduct examinations of the people performing blood-alcohol detection tests and inspections of the equipment they use.

If the allegations are true, the resignation of Wagner is only the first step toward achieving justice for those who have been wrongfully convicted of DUI in Indiana. Simply put, the accusations of sloppy lab work are inexcusable. Where the life and liberty of a person accused of a crime is at stake, it is imperative that lab test results be performed carefully, accurately and in a timely manner. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Inexcusable lab errors in DUI cases

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Tests for blood alcohol content are not infallible and can be tainted by any number of factors, including human error and faulty equipment. It is for that reason that good DUI defense attorneys never assume that tests results are accurate. Case in point--in recent months, across the country, lab errors have resulted in the dismissal of DUI charges. For example, as reported at denverpost.com, 7 DUI cases were dismissed due to lab errors:

Colorado Springs authorities in December announced the discovery of errors and a review of results at the lab where the alcohol content in blood samples was higher than the true result...In all, the lab retested 7,892 blood alcohol cases dating back to 2006 and found a total of 206 errors. Of the nine affected cases, five defendants had served jail time.

In San Francisco, human error and tampering is alleged to have affected thousands of criminal cases. The lab test problems, which were initially thought to have affected only drug cases, may affect DUI cases as well, as explained in this ABC article:

The public defender's office says the shortcomings which the scandal exposed in the drug unit, may also pertain to DUI testing. They include sloppy work, lack of protocols and inadequate staffing..."One of the most critical pieces of evidence in a driving under the influence case is whether or not the person had alcohol in his system and how much," former San Francisco crime lab director Jim Norris said.

Elsewhere, in Pennsylvania, one county is taking matters into its own hands in order to save money. In Cumberland County, officials have decided to hire a phlebotomist rather than outsource blood alcohol testing. As noted at the Philadelphia DUI Blog, this new arrangement concerns local DUI attorneys:

"I worry about the chain of custody," said a Harrisburg Pa DUI lawyer, referring to the problems in administering the county's part-time blood lab. Indeed, many Pennsylvania lawyers feel that such blood tests, if done at the hands of the county, could pose problems relating to conflicts of interest and impartiality.

Blood alcohol testing is a critical area of concern and plays a key role in the evidentiary burden of the prosecutors. But if the evidence were left in the hands of the county prosecutors, isn't it natural that Pa DUI lawyers would have objection?

Prosecutors and law enforcement officers rely on lab test results to convict people of crimes, such as DUI, which can wrongfully deprive innocent citizens of their liberty if performed incorrectly. For that reason, accurate lab test results are of paramount concern.

The lab testing scandals in Colorado and California and the potential conflicts of interest raised by the newly proposed lab testing scheme in Pennsylvania are clear indications that we still have a long way to go. Innocent people continue to be wrongfully convicted of DUI every day, something that is inexcusable--and entirely preventable.

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