Com. v. Schaeffer, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ASHLEY MARIE SCHAEFFER : No. 485 MDA 2018
Appeal from the Order Entered March 7, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000168-2017
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MAY 10, 2019
For the reasons that follow, I respectfully dissent from the Majority’s
conclusion that the results of the blood test must be suppressed.
Under the Pennsylvania Rules of Evidence, all relevant evidence is
admissible, except as otherwise provided by law. Pa.R.E. 402. Section 1547
of the Motor Vehicle Code addresses chemical testing to determine the amount
of alcohol content of blood or the presence of a controlled substance in a
person deemed to have been driving while under the influence of alcohol or a
controlled substance. With regard to the admissibility of those test results,
Section 1547 provides, in pertinent part, as follows:
(c) Test results 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 amount of alcohol or
controlled substance in the defendant’s blood, as shown by
chemical testing of the person’s breath or blood, which tests were
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conducted by qualified persons using approved equipment, shall
be admissible in evidence.
* * *
(4) For purposes of blood testing to determine the
amount of a Schedule I or nonprescribed Schedule II
or III controlled substance or a metabolite of such a
substance, the Department of Health shall
prescribe minimum levels of these substances
which must be present in a person’s blood in
order for the test results to be admissible in a
prosecution for a violation of section 1543(b)(1.1),
3802(d)(1), (2) or (3) or 3808(a)(2).
75 Pa.C.S. § 1547(c)(4) (emphasis added).
“The purposes behind [Section 1547(c)] is to outline the necessary
regulations and procedures that have been approved in this Commonwealth
for chemical test results to be admissible in relevant legal proceedings.”
Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008).
The introductory language of Section 1547(c) indicates that breath and blood
tests, which were conducted by a qualified person using approved equipment,
shall be admissible in evidence. Section 1547(c)(4) applies to blood tests for
particular controlled substances or metabolites and directs that “the
Department of Health shall prescribe minimum levels of these substances
which must be present in a person’s blood in order for the test results to be
admissible in a prosecution.” (emphasis added). The statute does not direct
the Department of Health to actually publish those minimum levels, but
merely to prescribe the minimum levels.
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Regardless, on July 2, 2015, the Department of Health published a
notice of the “Minimum Levels of Controlled Substances or Their Metabolites
in Blood to Establish Presence of Controlled Substance” in the Pennsylvania
Bulletin. The text of the notice, which I conclude is germane to our review,
states:
Under 75 Pa.C.S. § 1547(c)(4) (relating to chemical testing
to determine amount of alcohol or controlled substance), as
amended by the act of September 30, 2003 (P. L. 120, No. 24),
the Department of Health (Department) is publishing a notice of
the minimum levels of Schedule I, nonprescribed Schedule II and
nonprescribed Schedule III controlled substances or their
metabolites that must be present in a person’s blood for the test
results to be admissible in a prosecution for a violation of 75
Pa.C.S. § 1543(b)(1.1), § 3802(d)(1), (2) or (3) or § 3808(a)(2)
(relating to driving while operating privilege is suspended or
revoked; driving under influence of alcohol or controlled
substance; and illegally operating a motor vehicle not equipped
with ignition interlock).
Testing for controlled substances in blood is normally a two-
step process. The first step involves screening of the blood using
a relatively rapid and inexpensive procedure to presumptively
determine whether a specimen contains a controlled substance or
a metabolite of a controlled substance. The second step utilizes
an alternate procedure to confirm the presence of the controlled
substance or metabolite that was presumptively detected by the
screening procedure. Confirmatory analyses employed to
substantiate the presence of a controlled substance or metabolite
are also used to determine the concentration of the controlled
substance or metabolite. A limit of quantitation (LOQ) for a
controlled substance or metabolite is the lowest
concentration that a laboratory can reliably determine. A
laboratory’s LOQ for each controlled substance or
metabolite will depend upon the equipment and
procedures the laboratory employs for confirmatory
testing.
Laboratories that operate in this Commonwealth and
perform analyses of blood to determine controlled substance
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content must be approved by the Department in accordance with
28 Pa. Code § 5.50 (relating to approval to provide special
analytical services) and be listed in notices published in the
Pennsylvania Bulletin. The minimum levels listed in this
notice were developed by reviewing the LOQs reported by
the laboratories approved by the Department to analyze
blood for controlled substances or their metabolites.
Laboratories are not required to have LOQs for controlled
substances or their metabolites that are equal to or below
minimum levels listed. The levels listed are intended to
establish the lowest reportable results admissible in a
prosecution.
The Department recognizes that testing may be
conducted for controlled substances and metabolites not
listed in this notice. When testing is necessary, interested
parties should contact the laboratory performing the test
to inquire as to that laboratory’s specific method of testing,
the equipment used and any policies or procedures
employed by that laboratory to ensure that the test results
are valid. In subsequent notices, the Department will revise, as
needed, the minimum levels of controlled substances or
metabolites already included in this notice and add new controlled
substances or metabolites when warranted.
45 Pa. Bulletin 3638 (emphases added). The above language is followed by a
chart setting forth the LOQs for twenty controlled substances and metabolites,
divided into the following classes: amphetamines, analgesics, cannabinoids,
cocaine, hallucinogens, opiates, and sedatives/hypnotics. 45 Pa. Bulletin
3639.
It is obvious that, for purposes of convenience, the Department of
Health published the LOQs for a limited number of the most commonly abused
substances. The Department of Health explains that the LOQs listed in the
publication “were developed by reviewing the LOQs reported by the
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laboratories approved by the Department to analyze blood for controlled
substances or their metabolites.” 45 Pa. Bulletin 3638.
The Department of Health also “recognizes that testing may be
conducted for controlled substances and metabolites not listed” in the
published notice. Id. As the Commonwealth explained at the suppression
hearing, “[t]he notice allows for the fact that [the Department of Health] may
not be able to supply, or may not have provided a minimum level for all illegal
narcotics, because at this point we know [new narcotics] keep – [new
narcotics] are continuously popping up, and [the Department of Health] can’t
logically keep up with that.” N.T., 2/27/18, at 10.
The Department of Health prescribes that, “[w]hen testing is necessary
[on narcotics with LOQs which have not been included in the publication],
interested parties should contact the laboratory performing the test to inquire
as to that laboratory’s specific method of testing, the equipment used and any
policies or procedures employed by that laboratory to ensure that the test
results are valid.” 45 Pa. Bulletin 3638. This direction from the Department
of Health is in keeping with the earlier language in the publication explaining
that “[a] laboratory’s LOQ for each controlled substance or metabolite will
depend upon the equipment and procedures the laboratory employs for
confirmatory testing.” Id.
In addition, the instructions from the Department of Health to “contact
the laboratory performing the test” ensures that the method employed for
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determining the LOQs for unlisted controlled substances are consistent with
the method that determined the LOQs of the twenty listed substances. Id.
As the Department explains in the publication, “[t]he minimum levels listed in
this notice were developed by reviewing the LOQs reported by the laboratories
approved by the Department to analyze blood for controlled substances or
their metabolites.” Id. Thus, pursuant to Section 1547(c)(4), the Department
of Health has prescribed that the LOQs for each controlled substance or
metabolite, whether published or unpublished, are ultimately determined by
the same method that relies upon consideration of the equipment and
procedures the laboratory employs, and that information is available through
contact with the individual laboratory. Hence, the Department of Health has
satisfied its statutory requirement. Indeed, our legislature made no mention
in the statute of a requirement that the LOQs be published in the Pennsylvania
Bulletin. Likewise, the General Assembly did not express that a failure to
publish the LOQs act as a bar from admissibility of the test results.
For these reasons, I conclude that the Department of Health has
satisfied with requirement set forth under Section 1547(c)(4) to prescribe
LOQs for substances that must be present in a person’s blood in order for the
test results to be admissible in a prosecution. Therefore, the test results in
this matter should be admissible.
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