Com. v. Wilson, T. , 101 A.3d 1151 ( 2014 )

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2014 Pa. Super. 202
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TARIQUE WILSON
Appellee No. 1321 EDA 2013
Appeal from the Order April 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0008085-2012
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
OPINION BY PANELLA, J. FILED SEPTEMBER 18, 2014
The Commonwealth of Pennsylvania appeals the Court of Common
petition for a writ of certiorari, from the order entered in Municipal Court
ress Evidence. The
Commonwealth contends that the lower courts erred in determining that 75
Pa.C.S.A. § 3802(d), pertaining to driving under the influence of a controlled
substance, requires blood testing within two hours of driving. After review,
we rev
certiorari and remand for further proceedings.
On February 25, 2012, at 11:55 p.m., Philadelphia Police Officer
the city of Philadelphia. See N.T., Municipal Court Hearing, 1/31/13 at 12.
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Officer Dixon arrested Wilson under suspicion of driving while intoxicated
(DUI) at 11:59 p.m. and transported him to the Philadelphia Detention Unit
(PDU). See id. at 13-14. At the PDU, Officer Henry Sienkiewicz was
assigned to process the blood testing of DUIs and was working alone the
evening Wilson was brought in for blood testing. See id. at 18-19.
Eventually, another officer was freed to assist with the volume of DUIs to
process. See id. at 18. That evening, the officers processed between 25 to
30 DUIs, with an average Breathalyzer processing lasting approximately 28
minutes and blood testing requiring approximately 13 minutes. See id. at
20-22. Wilson was presented to Officer Sienkiewicz for blood processing at
2:25 a.m. and his blood sample was tested at 2:36 a.m. See id. at 21.
The police eventually charged Wilson with driving under the influence
of a controlled substance.1 At a municipal court hearing on January 31,
2013, Wilson moved to suppress physical evidence, stating that over two
hours had passed between the time he had driven to the time his blood was
drawn, in violation of the two-hour rule of 75 Pa.C.S.A. § 3802. Wilson
additionally argued that the Comm
-hour rule under subsection 3802(g). Following
grounds that section 3802 was ambiguous as to whether the two-hour rule
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1
75 Pa.C.S. § 3802(d).
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applied to offenders accused of driving under the influence of controlled
substances, and that the ambiguity therefore should be construed in favor of
the defendant. See N.T., Municipal Court Hearing, 1/31/13 at 30-31.
On February 20, 2013, the Commonwealth filed a petition for writ of
certiorari to the court of common pleas. Following a brief hearing on April 3,
appeal followed.2
The Commonwealth raises the following issue for our review:
Where the police arrested defendant for driving under the
influence of marijuana at 11:59 p.m., but could not obtain his
blood sample for testing until 2:36 a.m. because of the large
number of suspects waiting to be tested, did the Court of
Common Pleas err in affirming the Municipal Court order
sample was obtained more than two hours after arrest?
Our standard of review is as follows.
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
the inferences and legal conclusions drawn by the suppression
court from those findings are appropriate. [Where the
defendant] prevailed in the suppression court, we may consider
only the evidence of the defense and so much of the evidence
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2
This appeal properly invokes the jurisdiction of this Court as an
interlocutory appeal from an order that terminates or substantially handicaps
the prosecution. The Commonwealth has certified in good faith that the
order substantially handicaps the instant prosecution. See Pa.R.A.P. 311(d).
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for the Commonwealth as remains uncontradicted when read in
the context of the record as a whole. Where the record supports
the factual findings of the suppression court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error. However, where the appeal of the
determination of the suppression court turns on allegations of
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Lark, 91 A.3d 165, 168 (Pa. Super. 2014) (citation
omitted).
Instantly, the Commonwealth argues that the trial court erred in
3802(d), pertaining to driving under the influence of a controlled substance,
does not require testing for controlled substances to occur within two hours
of driving. Our examination of this issue is one of statutory interpretation,
which is a matter of law. Thus, our standard of review is de novo and our
scope of review is plenary. See Commonwealth v. Spence, 91 A.3d 44,
46 (Pa. 2014).
When construing a [statutory provision] utilized by the General
Every statute shall be construed, if possible, to give
Id.
statute are clear and free from all ambiguity, the letter of it is
Id
to rules of grammar and according to their common and
Id. § 1903(a). In other words, if a term is
clear and unambiguous, we are prohibited from assigning a
meaning to that term that differs from its common everyday
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Assembly does not intend a result that is absurd, impossible of
Id. § 1922(1).
Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).
Subsection 3802(d) provides:
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(i) Schedule I controlled substance, as defined in the act of
April 14, 1972 (P.L. 233, No. 64) known as The Controlled
Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
Cosmetic Act, which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph (i) or
(ii).
(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.
(3) The individual is under the combined influence of alcohol and
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.
(4) The individual is under the influence of a solvent or noxious
substance in violation of 18 Pa.C.S. § 7303 (relating to sale or
illegal use of certain solvents and noxious substances).
75 Pa.C.S.A. § 3802(d) (footnote omitted). The plain language of
subsection (d) clearly does not specify a time limit within which blood must
be tested for the presence of a controlled substance. In contrast,
subsections dealing with blood or breath testing for alcohol consumption
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(with the exception of subsection (a)(1)) explicitly require
blood alcohol content reach a specified level within two hours of driving:
(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.
75 Pa.C.S.A. § 3802(a)-(c) (emphasis added). Subsections (e) and (f),
prohibiting minors and drivers of commercial vehicles and school buses from
driving after imbibing alcohol, similarly contain a two-hour requirement for
blood and breath testing. See 75 Pa.C.S.A. § 3802(e)-(f).
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The Commonwealth contends that in light of the two-hour limiting
language contained in subsections (a)(2), (b), (c), (e), and (f), the
conspicuous absence of such language in subsection (d) pertaining to
controlled substances must have been deliberate. Relying upon the maxim
expression unius est exclusion alterius
expression of one thing is the exclusion of another) the Commonwealth
the omitted language
was adopted, but that it was rejected
(emphasis in original).
argument that subsection 3802(d) does not contain a two-hour time
in Commonwealth v. Segida, 985 A.2d 971 (Pa. 2009), and
Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011). In Segida, the
Supreme Court held that section 3802(a)(1), which proscribes driving after
the imbibing of sufficient alcohol such that the individual is rendered
incapable of safely driving, was an one in
which the actual time of driving is not included in the elements of the
offense. See 985 A.2d at 878. The Court reasoned that because subsection
lcohol
content reach a specified level within two hours of driving, unlike in
the only relevant time period is that
span of time during which an individual is incapable of safely driving due to
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Id. Writing for the majority, Justice Seamus
McCaffery reasoned that,
[s]ubsections 3802(a)(2), (b), and (c) explicitly specify a time
blood alcohol level while subsection 3802(a)(1) does not
specify any time frame because of eminently practical
considerations. The necessity for the two hour time limit in
subsections 3802(a)(2), (b), and (c) is grounded in the practical
impossibility either of measuring blood alcohol level precisely at
the time of driving or of calculating the exact blood alcohol level
at the time of driving from a single blood alcohol measurement
taken at some point in time after driving. See [Commonwealth
v. Duda, 923 A.2d 1138, 1141 (Pa. 2007)]. These practical
considerations do not have the same force with regard to
subsection 3801(a)(1), which does not limit the type of evidence
that the Commonwealth can proffer to prove its case. See
[Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super.
ts predecessor [statute], 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
and internal quotation marks omitted).
Id., at 879. The Court continued, 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 Id.
In Griffith, the Court was confronted with determining whether expert
testimony was required to determine whether a defendant driving under the
influence of a controlled substance or a combination thereof under
subsection 3802(d)(2), when those drugs in question were prescription
medication. See 32 A.3d at 1233. In holding that the need for expert
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testimony is not mandated by the plain language of subsection 3802(d)(2),
Justice McCaffery, again writing for the majority, compared the provisions of
the statute concerning alcohol consumption with those that concern drug
use. See id., at 1238. Determining that the General Assembly chose to
construct a similar statutory framework with regard to prohibitions against
II, or III
subsections 3802(a)(2), (b), (c) for alcohol intoxication. Id., at 1239. The
Court then found subsection 3802(d)(1), which prohibits driving if one is
combination of drugs to a degree which
Id.
certiorari, the trial
court relied upon the analogy in Griffith between subsection 3802(d)(1) and
subsections (a)(2), (b), and (c). Extending the analogy, the trial court
test must be taken wi
legislature intended to impose the two-hour requirement on blood tests for
this interpretation to be misguided. Although the Court in Griffith found
subsection 3802(d)(1) analogous to subsections 3802(a)(2), (b), and (c), it
did so only to the extent that these subsections require a measurement to
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blood. In so finding the Supreme Court emphasized that the plain language
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
Griffiths, 32 A.3d at 1239 (emphasis in original). By
contrast, the plan language of subsections 3802(a)(2), (b) and (c) require
within two hours
of driving. We find the express absence of such language in subsection
3802(d) to be conspicuous.
Much like the Supreme Court in Segida found the lack of any specific
time frame in subsection 3802(a)(1) to be indicative that the legislature did
not impose a two-hour time limit under that subsection, we find that the
absence of any such time requirement in subsection 3802(d) persuasive that
the legislature did not envision a time limit on testing for the presence of
controlled substances after driving. Our conclusion is based not only on the
Griffith. Absent
express legislative intent otherwise, we decline to impose a two-hour time
limit when testing for the presence of controlled substances where it is not
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contemplated by the unambiguous language of the statute.3 Accordingly, we
are constrained to find that the suppression of the evidence based upon a
violation of the two-hour rule in this case was in error.
Order denying motion for writ of certiorari is reversed. Case
remanded for proceedings consistent with this opinion. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2014
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3
Based upon our decision, we need not determine whether the
-hour rule
under subsection 3802(g).
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