MOTOR VEHICLE CODE

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

DUI – ACTUAL PHYSICAL CONTROL

 

The determination of whether an accused was in actual physical control of a motor vehicle, is based on the totality of the circumstances including location of the vehicle, whether the engine was running, and whether there was additional evidence to support the inference that the accused operated the vehicle while under the influence.  Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

 

DUI – CHEMICAL TESTING (see also Section 1547 and/or implied consent below)

 

Where an officer has reasonable grounds to believe that a motorist is driving while under the influence of alcohol, the driver may properly be requested to submit to a chemical test of blood, breath or urine to determine the alcoholic content of the blood.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.)

 

Where an adult has 0.10% or more by weight of alcohol in his or her blood at the time of driving, operating or being in actual physical control of the movement of any vehicle if the amount of alcohol by weight in the blood of the person is equal to or greater than 0.10% at the time a chemical test is performed on a sample of the person's breath, blood or urine is a prima facie case of DUI according to 75 Pa.C.S.A. § 3731 (2002).  However, the chemical test of the sample of the person's breath, blood or urine shall be from a sample obtained within three hours after the person drove, operated or was in actual physical control of the vehicle.  75 Pa.C.S.A. § 3731 (a.1) (2) (now repealed).  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.)  

 

75 Pa.C.S.A. § 1547(c) makes admissible the chemical testing of an individual's blood for the purposes of summary or criminal proceedings.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

A refusal to submit to chemical testing is not a nullity when the request is made and the refusal is given at a site other than where the test is administered.  Sadlon v. Commonwealth of PA, DOT, 62 Som.L.J. 1, 6 (2005) (Cascio, J.). 

 

The taking of defendant's blood sample does not involve testimonial compulsion, and therefore, is not a violation of his constitutional privilege against self-incrimination.  Commonwealth v. Johnson, 62 Som.L.J. 228 (2005) (Cascio, P.J.).   

 

There is no constitutional right to refuse the blood test because the right to refuse the blood test is derived only from §1547 itself and not from the Constitution.  Commonwealth v. Johnson, 62 Som.L.J. 228 (2005) (Cascio, P.J.). 

 

Advising a motorist of potential criminal penalties arising from a refusal to submit to chemical testing does not amount to coercion.   Commonwealth v. Johnson, 62 Som.L.J. 228 (2005) (Cascio, P.J.).   

 

The Commonwealth is required to produce evidence at trial sufficient to satisfy the requirements of 75 Pa. C.S.A. 3802 (g)(1) and (2) if the chemical test sample is not collected and tested within two hours after driving.  Commonwealth v. Johnson, 62 Som. L.J. 228 (2005) (Cascio, P.J.). 

 

Upon the Commonwealth meeting its burden, the burden shifts to licensee to establish that he was not capable of making a knowing and conscious refusal or was physically unable to make the refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When severe, incapacitating injuries are obvious, licensee need not present medical testimony to prove that a knowing and conscious refusal could not be made; however, if the inability to make a knowing and conscious refusal is not obvious, licensee must produce competent medical evidence to support the alleged inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Pennsylvania law does not require the arresting officer to be the same officer that provides the Chemical Testing Warnings and witnesses a refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A chemical test refusal is defined as anything substantially less than an unqualified, unequivocal assent to the test.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is entitled to a meaningful opportunity to satisfy and comply with the requirements of Section 1547.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A “meaningful opportunity” contemplates more than simply being read the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

At the very least, a licensee must be conscious, have occasion to hear the reading of the Chemical Testing Warnings, and be afforded an opportunity to give (or refuse to give) consent.  A licensee has an expectation that they will be given the opportunity to hear the warnings, therefore there must exist some credible evidence that the licensee heard the reading of the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffered significant injuries and did not hear the reading of the Chemical Testing Warnings, licensee was not given a meaningful opportunity to give consent.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is not required to testify about his state of mind at the time he refused chemical testing in order to raise a defense of inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffers loss of consciousness; is bleeding from head; audibly moaning; visibly in pain; has a bloody, bruised and swollen face; and is unable to speak because of mouth injuries, his injuries are severe, incapacitating, and obvious.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, a reasonable degree of medical certainty is the applicable standard to apply when deciding what constitutes competent medical evidence.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, medical evidence must be unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When presenting competent medical testimony, the medical expert must rule out alcohol as a contributing factor to licensee’s inability to offer a knowing and conscious refusal in order to satisfy licensee’s burden.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

An expert fails the reasonable degree of medical certainty standard if he testifies that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert defined “unlikely” as he did not “believe that licensee was able to give informed consent”, testimony was unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert testifies that head trauma would be the more “salient component of licensee’s presentation” and that licensee would not have been able to give consent even if alcohol was not involved, expert sufficiently ruled out alcohol as a contributing factor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

DUI – CIVIL ACTIONS

 

Where a driver's intoxication at issue in a civil case, the results of blood tests are        admissible. Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.)

 

The presumption of intoxication, outlined in 75 Pa.C.S.A.§3731 is not applicable in civil        negligence cases.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

DUI – GENERALLY

 

There is no exception under 75 Pa. C.S.A. § 3731 for intoxication resulting from ingestion of alcohol-based breathdrops.  Commonwealth v. Dabbs, 54 Som.L.J. 105 (May 8, 1997) (Cascio, J.) 

 

75 Pa. C.S.A. § 3731 speaks of being "under the influence of alcohol" and not "under the influence of intoxicating liquor" as the former statute did.  Commonwealth v. Dabbs, 54 Som.L.J. 105 (May 8, 1997) (Cascio, J.) 

 

The purpose of drunk driving laws is to keep intoxicated drivers off the road and protect the public at large.  Commonwealth v. Dabbs, 54 Som.L.J. 105 (May 8, 1997) (Cascio, J.) 

 

The term "alcohol" shall mean ethyl alcohol of any degree of proof originally produced by the distillation of any fermented liquid, whether rectified or diluted with or without water, whatever may be the origin thereof, and shall include synthetic ethyl alcohol, but shall not mean or include ethyl alcohol, whether or not diluted, that has been denatured or otherwise rendered unfit for beverage purposes.  47 Pa.C.S.A. § 1-101.  Commonwealth v. Dabbs, 54 Som.L.J. 105 (May 8, 1997) (Cascio, J.) 

 

There are two elements necessary to establish the crime of DUI: (1) someone was operating, or in actual physical control of a motor vehicle; and at the time of operation the driver of the motor vehicle (2) was under the influence of alcohol to a degree that rendered him or her incapable of safe driving or was operating the vehicle while the alcohol by weight in his or her body was .10% or greater.   Com. v. McNaul, 60 Som.L.J. 78 (2001) (Cascio, J.). 

 

A prima facie case of DUI under § 3731(a)(4) exists when an individual's amount of alcohol by weight in the blood is .10% or greater if established by a chemical test of the individual's breath, blood, or urine within three hours after the person last operated a motor vehicle. § 3731(a)(1).  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Admission of evidence only proving consumption of alcohol in inadmissible because of the unfair prejudicial effect of such evidence.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Additional evidence of intoxication, other than the mere consumption of alcohol, must be        admitted with the evidence of consumption of alcohol in order to prove intoxication.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Operation of a motor vehicle is prohibited when the operator is under the influence of alcohol when it renders a person incapable of safe driving or when the alcohol by weight in the individual's blood is .10% or greater. 75 Pa.C.S.A. § 3731 (a)(1) (a)(4).  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Blood alcohol tests by themselves are not admissible to prove intoxication; rather, there       must be other evidence demonstrating the actor's conduct which indicates intoxication.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Operation of a vehicle while intoxicated is relevant to the matter of awarding punitive       damages.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

Evidence of an individual's blood alcohol level that relates bact to the blood alcohol level       of the individual at the time of his/her operation of a vehicle is not admissible in a civil matter without expert testimony.  Miller v. Chang, 60 Som.L.J. 433 (2003)(Gibson, J.) 

 

The new statute now clearly provides that a person may be convicted if there is evidence in the record to establish that the person's blood alcohol reading exceeded the allowable level within two hours after driving and requires that the chemical test of that person's blood, breath, or urine must be collected and tested within that two hour period unless the Commonwealth proves that there is good cause to establish that the chemical test could not be completed within the two hour period and also proves that the driver did not consume any alcoholic beverage or controlled substance between the time of arrest and the time the sample is collected.  75 Pa.C.S.A. § 3802 (g).  Commonwealth v. Johnson, 62 Som. L.J. 228 (2005) (Cascio, P.J.). 

 

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.  Commonwealth v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).

 

The only relevant issue is the capacity to drive safely and whether any found incapability is casually related to the consumption of alcohol.  Commonwealth v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).

 

There is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving.   Commonwealth v. Bittinger, 62 Som.L.J. 2006 (Cascio, P.J.).  

 

DUI – IGNITION INTERLOCK DEVICES (see also Section 3805 below)

 

The courts of common pleas have jurisdiction to entertain challenges to the legality of the Department of Transportation's imposition of an interlock requirement. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

Prior to August 2005, Pennsylvania case law held that DUI convictions that occurred before September 30, 2000-the effective date of the former Ignition Interlock Device Act-could not be considered for purposes of determining whether a licensee was a second or subsequent offender who was subject to ignition interlock requirements. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

Pursuant to the Pennsylvania Supreme Court decision in August 2005, the Department of Transportation is now authorized to consider convictions occurring prior to September 30, 2000 when determining whether a licensee is a recidivist offender under the former Act.  Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

Under the current Interlock Act, the Department of Transportation's authority is limited and it may impose ignition interlock requirements only upon issuance of a court order. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)  

 

Although the Department of Transportation cannot unilaterally order a licensee to equip his vehicles with ignition interlock devices, the Department of Transportation possesses independent authority to require a licensee to obtain a restricted license prior to restoration of his operating privilege. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

The obvious purpose of Section 3805(g) of the Motor Vehicle Code was to preserve the mandate imposed by prior appellate authority prohibiting the Department of Transportation from independently requiring ignition interlock devices to be installed on vehicles, without an authorizing court order.  However, the Department retained the authority to require an ignition interlock restricted license prior to restoration of operating privileges. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

DUI – IMPLIED CONSENT (see also chemical testing above or Section 1547 below)

 

Any person who drives, operates, or is in actual physical control of the movement of a motor 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 motor vehicle while under the influence of alcohol or a controlled substance, or both.  75 Pa. C.S.A. § 1547(a)(1).  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

As a condition of maintaining a driver's license in this Commonwealth, all drivers are subject to the implied consent requirements of the Motor Vehicle Code and must submit to blood and breath tests under appropriate circumstances.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

A police officer has a duty to inform a motorist that his or her operating privileges will be suspended upon refusal to submit to chemical testing.  75 Pa. C.S.A. § 1547(b)(2).  The implied consent law does not require the officer to make certain that the motorist understands that he or she could exercise a right to refuse a breathalyzer test when he or she consents to the test.  A motorist has a right to knowing and conscious refusal before his or her license is suspended, not a right to knowing and conscious submission to the breath test.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

Section 1547 of the Vehicle Code provides for an automatic 12-month suspension of operating privileges if the operator is arrested for a violation of § 3731 (relating to driving under the influence of alcohol or controlled substance) and refuses to submit to chemical testing when requested to do so by a police officer.  Commonwealth, Dept. of Transp.  v. Helmick, 55 Som. L.J. 69 (May 15, 1998) (Fike, P.J.) 

 

Licensee is entitled to a meaningful opportunity to satisfy and comply with the requirements of Section 1547.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A “meaningful opportunity” contemplates more than simply being read the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

At the very least, a licensee must be conscious, have occasion to hear the reading of the Chemical Testing Warnings, and be afforded an opportunity to give (or refuse to give) consent.  A licensee has an expectation that they will be given the opportunity to hear the warnings, therefore there must exist some credible evidence that the licensee heard the reading of the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffered significant injuries and did not hear the reading of the Chemical Testing Warnings, licensee was not given a meaningful opportunity to give consent.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is not required to testify about his state of mind at the time he refused chemical testing in order to raise a defense of inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffers loss of consciousness; is bleeding from head; audibly moaning; visibly in pain; has a bloody, bruised and swollen face; and is unable to speak because of mouth injuries, his injuries are severe, incapacitating, and obvious.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, a reasonable degree of medical certainty is the applicable standard to apply when deciding what constitutes competent medical evidence.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, medical evidence must be unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When presenting competent medical testimony, the medical expert must rule out alcohol as a contributing factor to licensee’s inability to offer a knowing and conscious refusal in order to satisfy licensee’s burden.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

An expert fails the reasonable degree of medical certainty standard if he testifies that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert defined “unlikely” as he did not “believe that licensee was able to give informed consent”, testimony was unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert testifies that head trauma would be the more “salient component of licensee’s presentation” and that licensee would not have been able to give consent even if alcohol was not involved, expert sufficiently ruled out alcohol as a contributing factor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

DUI – LICENSE SUSPENSIONS – GENERALLY (see also Section 1540 below)

 

In order to meet its burden in a license suspension case, the Department of Transportation must show that: (1) the motorist was arrested for driving under the influence; (2) by a police officer who had reasonable grounds to believe that the motorist was operating or in actual physical control of the movement of the motor vehicle while under the influence of alcohol or a controlled substance; (3) the motorist was requested by the police officer to submit to a chemical test; and (4) the motorist refused to do so.   Commonwealth, Dept. of Transp.  v. Helmick, 55 Som. L.J. 69 (May 15, 1998) (Fike, P.J.) 

 

License suspensions are collateral civil consequences rather than criminal penalties.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J.Gibson). 

 

Mandatory license suspension imposed by PennDOT pursuant to the Compact constitutes a collateral civil consequence of the out-of–state conviction.  Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J.Gibson). 

 

Operating a vehicle on the roadways of the Commonwealth is a privilege and not a contractual, property or constitutional right.  This privilege cannot be suspended, canceled or revoked by the Commonwealth without affording the licensee procedural due process.  Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J.Gibson). 

 

PennDOT's record indicating that license was suspended for violations of § 3731 of the Motor Vehicle Code and that suspensions were imposed pursuant to the Compact did not violate due process.  The due process clause does not create a right to be deliberately obtuse as to the nature of a proceeding.  Ogline v. Commonwealth of Pennsylvania, 58 SomL.J. 188 (2000) (J.Gibson). 

 

Once properly advised of rights and warnings, the driver's subjective belief that the driver is entitled to speak to an attorney is not sufficient to negate a finding of a knowing and conscious refusal to submit to a blood test after being arrested for driving under the influence of alcohol.  Knisley v. Commonwealth of Pennsylvania Dept. of Transportation, 61 Som.L.J. 273 (Fike, II, P.J.). 

 

To sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, the initial burden rests with the Commonwealth to establish that licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to submit to a chemical test; and (4) was warned that refusal might result in a license suspension.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Upon the Commonwealth meeting its burden, the burden shifts to licensee to establish that he was not capable of making a knowing and conscious refusal or was physically unable to make the refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When severe, incapacitating injuries are obvious, licensee need not present medical testimony to prove that a knowing and conscious refusal could not be made; however, if the inability to make a knowing and conscious refusal is not obvious, licensee must produce competent medical evidence to support the alleged inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist when a person in the position of the police officer could have concluded that licensee was operating the vehicle while under the influence of intoxicating liquor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In determining whether reasonable grounds exist to conclude that licensee is in actual physical control of the vehicle while under the influence of alcohol, the arresting officer is not required to observe licensee actually operating the motor vehicle, nor does the existence of a reasonable alternative explanation of the situation preclude an arresting officer’s actual belief from being reasonable.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, the police officer need not be correct in his belief that licensee had been driving while intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, there must be some objective evidence that licensee exercised control over the movement of the vehicle at the time he was intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Pennsylvania law does not require the arresting officer to be the same officer that provides the Chemical Testing Warnings and witnesses a refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer observes marijuana and beer bottles in the vehicle and around the accident scene and the vehicle is registered to licensee.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer is told on multiple occasions that licensee was the driver of the vehicle and the officer smelled alcohol emanating from licensee’s person.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A chemical test refusal is defined as anything substantially less than an unqualified, unequivocal assent to the test.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is entitled to a meaningful opportunity to satisfy and comply with the requirements of Section 1547.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A “meaningful opportunity” contemplates more than simply being read the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

At the very least, a licensee must be conscious, have occasion to hear the reading of the Chemical Testing Warnings, and be afforded an opportunity to give (or refuse to give) consent.  A licensee has an expectation that they will be given the opportunity to hear the warnings, therefore there must exist some credible evidence that the licensee heard the reading of the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffered significant injuries and did not hear the reading of the Chemical Testing Warnings, licensee was not given a meaningful opportunity to give consent.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is not required to testify about his state of mind at the time he refused chemical testing in order to raise a defense of inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffers loss of consciousness; is bleeding from head; audibly moaning; visibly in pain; has a bloody, bruised and swollen face; and is unable to speak because of mouth injuries, his injuries are severe, incapacitating, and obvious.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, a reasonable degree of medical certainty is the applicable standard to apply when deciding what constitutes competent medical evidence.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, medical evidence must be unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When presenting competent medical testimony, the medical expert must rule out alcohol as a contributing factor to licensee’s inability to offer a knowing and conscious refusal in order to satisfy licensee’s burden.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

An expert fails the reasonable degree of medical certainty standard if he testifies that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert defined “unlikely” as he did not “believe that licensee was able to give informed consent”, testimony was unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert testifies that head trauma would be the more “salient component of licensee’s presentation” and that licensee would not have been able to give consent even if alcohol was not involved, expert sufficiently ruled out alcohol as a contributing factor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

DUI – LICENSE SUSPENSION – HABITUAL OFFENDER (see also Section 1542 below)

 

A driver who operates a motor vehicle while his license is suspended due to his status as a habitual offender, DUI related, may be cited under Section 1543 (b)(1) of the Vehicle Code, even though the language referring to habitual offender suspensions is located in Section 1543 (b)(2).  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.). 

 

The penalties found in subsection 1543 (b)(1) may be imposed if the driver operates a motor vehicle after the expiration of his habitual offender suspension but before the restoration of his license.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.). 

 

A driver who makes no effort to restore his operating privileges is still considered to be under suspension and subject to the penalties prescribed by Section 1543(b) of the Vehicle Code.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.). 

 

After PennDOT removes a driver from habitual offender status, pursuant to Act 143, he or she is only subject to those sanctions affiliated with his or her prior offenses.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.).

 

Act 143 is not self- executing. In order to take advantage of the reprieve that Act 143 offers, the motorist must petition PennDOT for removal from habitual offender status.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.). 

 

Only after a driver receives confirmation from PennDOT that he or she was eligible for and was granted removal from habitual offender status can Act 143 become effective.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.). 

 

A driver who does not petition PennDOT for removal from habitual offender status may still be properly classified as a habitual offender and is still subject to the penalties prescribed in Section 1543 (b) of the Vehicle Code.  Commonwealth v. Querry, 59 Som.L.J. 119 (2002) (Cascio, J.).


DUI – LICENSE SUSPENSION – LOOK-BACKS

 

The constitutional prohibition against ex post facto laws does not apply to statutes which do not involve imposition of penal sanctions. Office of Disciplinary Counsel v. Zdrok, 538 Pa. 41, 48-49, 645 A.2d 830, 834 (1994).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som.L.J. 167 (2005) (Fike, P.J.) 

 

A driver's license suspension is not penal in nature.  See Commonwealth v. Duffy, 536 Pa. 436, 440-441, 639 A.2d 1174, 1176 (1994). Trout v. Commonwealth of PA Dept. of Transportation, 62 Som.L.J. 167 (2005) (Fike, P.J.) 

 

Amended § 1547 (b)(ii) provides for the imposition of an eighteen-month suspension in the following situations: (A) The person's operating privileges have previously been suspended under this subsection.  (B) The person has, prior to the refusal under this paragraph, been sentenced for: (I) an offense under section 3802; (II) an offense under former section 3731 (III) an offense equivalent to an offense under subclause (I) or (II); or (IV) a combination of the offenses set forth in this clause. 75 Pa.C.S.A.§ 1547 (b)(1)(ii).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som.L.J. 167 (2005) (Fike, P.J.) 

 

Given the language of § 1547(b)(1)(ii)(B), we believe that consideration of the 1997 suspension is proper and that an eighteen-month driver's license suspension was appropriately imposed.  More specifically, because this statutory section provides for the consideration of previous sentences under either the new DUI statute, 75 Pa. C.S.A. § 3802, or the former DUI statute, 75 Pa. C.S.A. § 3731, we believe that the legislature also intended for suspensions under both old and new § 1547 to be considered in determining whether an eighteen-month suspension is proper.  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.)

 

75 Pa.C.S.A. 3806 (b) provides the calculation of prior offenses for purposes of section 1553 (d.2), 3803 shall include any conviction, adjudication of delinquency...within ten years before the present violation occurred for any of the following: (1) an offense under section 3802 (2) an offense under former section 3731 (3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or (4) any combination of the offenses in paragraph (1), (2), or (3).  Commonwealth v. Burnworth and Clark, 62 Som.L.J. 274 (2005) (Cascio, J.). 

 

The statue does not reach into the past and increase the punishment, or the civil consequences, of concluded DUI convictions.  Rather, it takes the recidivist DUI defendant as it finds him after the post-Interlock Law DUI conviction.  Commonwealth v. Burnworth and Clark, 62 Som.L.J. 274 (2005) (Cascio, J.). 

 

The statute does not look back and enhance the punishment of recidivist DUI offenders received for their prior DUI convictions.  The enhanced consequence applies solely with respect to those DUI convictions occurring after the effective date of the law. Commonwealth v. Burnworth and Clark, 62 Som.L.J. 274 (2005) (Cascio, J.). 

 

It is an ex post facto law only where one of the following is present: (1) [t]he law makes an act criminal which was not criminal when done; (2) [t]he law aggravates a crime [-] one which makes it greater than it was when committed; (3) [t]he law changes a punishment, and   makes it greater than it was when a punishable act was committed; (4) [t]he law alters the   rules of the evidence and requires less or different testimony than the law required at the   time the offense was committed in order to be convicted. Commonwealth v. Burnworth and Clark, 62 Som.L.J. 274 (2005) (Cascio, J.). 

 

Regardless of the severity or type of penalty involved, the fact remains that the underlying basis for the punishment is the conviction which occurred subsequent to the adoption of the statute in question, not those convictions which occurred before that date.  Commonwealth v. Gary, 62 Som.L.J. 312 (2006) (Cascio, P.J.).  

 

The statute does not look back and enhance the punishment recidivist DUI offenders received for the prior DUI convictions.  Instead, the enhanced consequence applies solely with respect to those DUI convictions occurring after the effective date of the law.  Commonwealth v. Gary, 62 Som.L.J. 312 (2006) (Cascio, P.J.). 

 

The new statute now clearly provides that a person may be convicted if there is evidence in the record to establish that the person's blood alcohol reading exceeded the allowable level within two hours after driving and requires that the chemical test of that person's blood, breath or urine must be collected and tested within that two hour period unless the Commonwealth proves that there is good cause to establish that the chemical test could not be completed within the two hour period and also proves that the driver did not consume any alcoholic beverage or controlled substance between the time of arrest and the time the sample is collected.  Commonwealth v. Gary, 62 Som.L.J. 312 (2006) (Cascio, P.J.).

 

DUI – LICENSE SUSPENSIONS – O'CONNELL WARNINGS (see also Section 1547 below)

 

Whereas amended § 1547 provides for either a one-year suspension or an eighteen-month suspension depending on whether the licensee's privileges had been previously suspended, the old statute did not contain an enhancement provision.  Therefore, because police officers acting pursuant to amended § 1547 will not immediately know which suspension period applies, we find that the O'Connell warnings need not identify the specific length of potential suspension.  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som.L.J. 167 (2005) (Fike, P.J.) 

 

Section 1547 (b)(2) does not require that the police inform motorists of the exact length of the suspension, only that their operating privileges will be suspended if chemical testing is refused. Moreover, the Commonwealth Court has established that even where the police officer misstates the period of the suspension, the warning is still sufficient under § 1547 (b)(2).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

Trooper Smith testified that as part of the warnings that he administered to the appellant, he informed the appellant that a refusal to submit to chemical testing would result in a suspension of the appellant's operating privileges for at least one year.  In light of the explanation set forth above, we find this warning more than sufficient to put the appellant on notice that his operating privileges would be suspended for a length of time in excess of one year, such as a period of eighteen months.  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som.L.J. 167 (2005) (Fike, P.J.) 

 

The O'Connell warnings require that a driver be specifically warned that a refusal would result in the revocation of his driver's license.  Commonwealth v. Johnson, 62 Som.L.J. 228 (2005) (Cascio, P.J.).  

 

DUI – PRIOR CONVICTION

 

Defendant's prior conviction for driving while intoxicated under Virginia law was equivalent to a conviction of the offense of driving under the influence under Pennsylvania law, so as to trigger the mandatory minimum sentence for a second offense, specified in Motor Vehicle Code, 75 Pa. C.S.A. §3731(e)(1)(ii).  Commonwealth v. Zeigler, 50 Som.L.J. 19 

 

DUI – REASONABLE GROUNDS TEST (see also Section 6308 below)

 

Discussion of reasonable grounds to request blood alcohol test.  Commonwealth, DOT v. Maluchnik, 50 Som L.J. 142

 

The test for determining whether an officer had reasonable grounds to believe that a motorist operated a motor vehicle while under the influence of alcohol is that of a reasonable person in the position of the arresting officer, viewing the facts and circumstances as they appeared to the arresting officer.  Commonwealth v. Murphy, 54 Som.L.J. 176 (Mar. 10, 1997) (Cascio, J.) 

 

Speculation as to defendant's condition when he was driving is insufficient to constitute reasonable grounds for the conclusion that defendant was driving under the influence of alcohol.  Commonwealth v. Murphy, 54 Som.L.J. 176 (Mar. 10, 1997) (Cascio, J.) 

 

Reasonable grounds does not require a police officer to witness the driver driving his car, nor will the police officer's reasonable grounds be rendered void if the belief is later discovered to be erroneous.  Commonwealth v. Murphy, 54 Som.L.J. 176 (Mar. 10, 1997) (Cascio, J.) 

 

The reasonable grounds test is not as demanding as that required to show "probable cause" in criminal proceedings.  "Reasonable grounds" exist when a reasonable person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could conclude that the driver was operating his vehicle while under the influence.  The officer's belief will not be rendered void merely because it is later found to be erroneous or because there exist other reasonable alternative explanations for the situation.  Commonwealth, Dept. of Transp.  v. Helmick, 55 Som.L.J. 69 (May 15, 1998) (Fike, P.J.) 

 

Whether evidence is sufficient to constitute reasonable grounds can only be determined on a case-by-case basis.  The test, however, is not very demanding.  Commonwealth, Dept. of Transp.  v. Helmick, 55 Som.L.J. 69 (May 15, 1998) (Fike, P.J.) 

 

Where an officer arrives at the scene of an accident and observes empty beer bottles in the car, and the appellant admits to being the driver of the car, is glassy-eyed, unstable and has the odor of alcohol on him and fails a field sobriety test, it is reasonable to believe that appellant had been driving under the influence and requesting chemical testing is justified.  Commonwealth, Dept. of Transp.  v. Helmick, 55 Som.L.J. 69 (May 15, 1998) (Fike, P.J.); Commonwealth v. Mullen, 56 Som.L.J. 44; Commonwealth v. Peters, 56 Som.L.J. 99; Commonwealth v. Galloway, 56 Som.L.J. 257; Commonwealth v. Bytheway, 56 Som.L.J. 303 

 

Articulable and reasonable grounds must exist to justify an investigatory stop based on a violation of the Motor Vehicle Code.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Trooper's observation of the defendant driving through a steady red light provided the necessary suspicion to justify a vehicle stop.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Whether or not field sobriety tests are properly administered is not necessarily a precondition of the existence of probable cause to arrest.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Reasonable grounds to arrest does not require the failure of field sobriety tests.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

There must be corroborative facts beyond the mere smell of alcohol that would give rise to probable cause that the defendant was driving under the influence of alcohol.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

The defendant's erratic driving may be combined with the smell of alcohol, bloodshot eyes and/or slurred speech to establish the probable cause necessary to arrest.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Where the defendant was observed to have (1) glassy and bloodshot eyes, (2) slurred speech, (3) erratic driving, and (4) an inability to maintain a balanced stance the requisite probable cause for arrest existed without consideration of the field sobriety test results.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Case law has consistently established that in order to sustain a suspension of operating privileges under § 1547, PennDOT must prove that the licensee: "(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of a vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that a refusal might result in a license suspension.  Banner v. Commonwealth, Dept. of Transp., Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

Whether evidence is sufficient to constitute ‘reasonable grounds' can only be decided on a case-by-case basis.  The test, however, is not very demanding.  For ‘reasonable grounds' to exist, the police officer need not be correct in his belief that the motorist had been driving while intoxicated.  We are dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such a test.  The only valid inquiry in this issue at a de novo hearing is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle under the influence of intoxicating liquor.  Thus, it is not relevant that the motorist later, at the time of trial, can establish a cause other than intoxication for such observed behavior as slurred speech or an unsteady gait.  Commonwealth, Dept. of Transp., Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commw. 201, 204-205, 363 A.2d 870, 872 (1976).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

Although the "reasonable grounds" requirement of 75 Pa. C.S.A. § 1547 (a) has been interpreted to require "probable cause" in the context of a criminal prosecution, the standard of "reasonable grounds" necessary to support a license suspension is a lesser standard and does not rise to the level of "probable cause."  "Thus, although the fact that the initial stop may have been improper would not necessarily prevent a suspension of license where there was a subsequent refusal to submit to a breathalyzer test..."   Banner v. Commonwealth, Dept. of Transp., Bureau of Driver Licensing, 558 Pa. 439, 445, 737 A.2d 1203, 1206 (1999).  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

The Pennsylvania Supreme Court has held that even an illegal arrest is sufficient to trigger the motorist's compliance with the chemical testing, given that determinations in the criminal context as to the validity of the underlying arrest are irrelevant to operating suspension proceedings.  Commonwealth, Dept. of Transp. V. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987). Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

The impropriety or illegality of either a traffic stop or an arrest have no bearing on PennDOT's power to suspend the appellant's operating privileges under Pa. C.S.A. § 1547 (b)(1) for his refusal to submit to chemical testing.  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

Chemical testing is warranted so long as an officer has "reasonable grounds" to believe that the motorist was operating, driving or in actual physical control of the movement of a motor vehicle while the motorist was under the influence of alcohol.  Trout v. Commonwealth of PA Dept. of Transportation, 62 Som. L.J. 167 (2005) (Fike, P.J.) 

 

A vague radio dispatch, without more, cannot provide either probable cause or reasonable suspicion sufficient to justify a traffic stop. Commonwealth v. Wissinger, 62 Som.L.J. 284 (2005) (Cascio, J.).

 

Officer's observations of a vehicle, independent of the radio call, are sufficient to support a traffic stop.  Commonwealth v. Wissinger, 62 Som.L.J. 284 (2005) (Cascio, J.).  

 

Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations led him to reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.  Commonwealth v. Gary, 62 Som.L.J. 312 (2006) (Cascio, P.J.). 

 

Reasonable grounds exist when a person in the position of a police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor.  Wendell v. Commonwealth, DOT, 63 Som.L.J. 15 (2006) (Klementik, J.)

 

As succinctly stated by the Supreme Court in the most recent case, Banner v Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1207 (Pa. 1999), "a line must be drawn to distinguish circumstances where a motorist is driving his vehicle under the influence of alcohol, which the statute is intended to prevent, and circumstances where a motorist is physically present in a motor vehicle after becoming intoxicated." Wendell v. Commonwealth, DOT, 63 Som.L.J. 15 (2006) (Klementik, J.) 

 

In determining whether an officer had reasonable grounds to believe that a motorist was in "actual physical control" of a vehicle, the Court must consider the totality of the circumstances, including the location of the vehicle, whether the engine was running, and whether there was other evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police.  Wendell v. Commonwealth, DOT, 63 Som.L.J. 15 (2006) (Klementik, J.) 

 

Whether reasonable grounds exist is a question of law reviewable by the Court on a case-by-case basis.  Wendell v. Commonwealth, DOT, 63 Som.L.J. 15 (2006) (Klementik, J.)

 

It is important to note that there is a significant distinction between the standard of reasonable grounds to support a license suspension and the probable cause required for a criminal prosecution.  The arresting officer is not required to demonstrate probable cause to believe the motorist was actually driving under the influence of alcohol, only that the vehicle was under his or her control.  Wendell v. Commonwealth, DOT, 63 Som.L.J. 15 (2006) (Klementik, J.)

 

To sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, the initial burden rests with the Commonwealth to establish that licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to submit to a chemical test; and (4) was warned that refusal might result in a license suspension.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist when a person in the position of the police officer could have concluded that licensee was operating the vehicle while under the influence of intoxicating liquor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In determining whether reasonable grounds exist to conclude that licensee is in actual physical control of the vehicle while under the influence of alcohol, the arresting officer is not required to observe licensee actually operating the motor vehicle, nor does the existence of a reasonable alternative explanation of the situation preclude an arresting officer’s actual belief from being reasonable.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, the police officer need not be correct in his belief that licensee had been driving while intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, there must be some objective evidence that licensee exercised control over the movement of the vehicle at the time he was intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer observes marijuana and beer bottles in the vehicle and around the accident scene and the vehicle is registered to licensee.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer is told on multiple occasions that licensee was the driver of the vehicle and the officer smelled alcohol emanating from licensee’s person.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

DUI – SENTENCING

 

Prior to recent amendments to Section 9721 of the Sentencing Code 42 Pa.C.S.A. Section 9821 (c), and Section 1106 of the Crimes Code, 18 Pa. C.S.A. Section 1106, the imposition of restitution as a sentence was discretionary with the Court.  Recent legislative direction has limited the court's discretion.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the present versions of the Sentencing Code § 9721 and the Crimes Code § 1106, the imposition of restitution is mandatory.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Although the award of restitution is now mandatory and a court must direct compensation for the full extent of the loss or damage, regardless of a defendant's ability to pay, the court must still consider the amount of loss by the victim and whether or not the defendant's action caused the injury.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Restitution applies only for those crimes to property or person where there has been a loss that flows from the conduct which forms the basis of the crime for which a defendant is held criminally accountable.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The amount of restitution awarded must be supported by the record and may not be speculative or excessive, and in addition, the sentencing court must apply a "but for" test in imposing restitution.  Damages which occur as a direct result of the crimes are those which should not have occurred but for the defendant's criminal conduct.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Restitution does not enable a victim to make a claim for damages in a criminal trial.  Although it aids the victim, an order of restitution is not an award of damages, but its true purpose is the rehabilitation of the defendant.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Although under present statutory and appellate direction, the court is mandated to order restitution to a victim so as to provide the victim with the fullest compensation for the loss, directly resulting from the crime, and without consideration of the current financial resources of the defendant, the award cannot be excessive or based on speculation.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the Crimes Code, 18 Pa.C.S.A. § 1106, and the Sentencing Code, 42 Pa.C.S.A. §9721, the term "victim" is to be defined as set forth in the Crime Victims Act, 18 P.S. § 11.103.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Section 103 of the Crime Victims Act defines victim as follows: (1) A direct victim. (2) A parent or guardian of a child who is a direct victim, except when the parent or legal guardian of the child is the alleged offender. (3) A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents, or a fiancee, one of whom is to be identified to receive communication as provided for in this Act, except where the family member is the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

Under the Crimes Victim Act, Section 103, 18 P.S. § 11.103 "Direct Victim" is defined as follows : An individual against whom a crime has been committed or attempted and who as a direct result of the criminal act or attempt suffers physical or mental injury, death, or the loss of earnings under this act.  The term shall not include the alleged offender.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

According to statutory definition "victim" as stated in the Sentencing Code and the Crimes Code, includes the passenger in the defendant's car who was seriously injured, and her parents.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike) 

 

The passenger's medical expenses and transportation expenses necessarily incurred for treatment of her injuries in the accident will be ordered as restitution but not transportation expense for the parents' trips to the pharmacy.  Compensation for the vacation time used by the parents is excluded as too remote and speculative.  Com. v. Villi, 58 Som.L.J. 458 (2001) (P.J. Fike)

 

FEES

 

35 P.S. 6934, which assesses the EMS fee, provides that [a] $10 fine shall be levied on all traffic violations exclusive of parking offenses.  Commonwealth v. McClintock, 61 Som.L.J. 2115 (2004) (Cascio, J.)

 

MOTOR VEHICLE CODE § 101: GENERALLY

 

If an individual is convicted of violations of the Solid Waste Management Act, 75 Pa.C.S.A. § 6018.101 et seq., and the Vehicle Code, 75 Pa.C.S.A. § 101 et seq., the individual may be subject to criminal penalties.  In Re: One (1) Freightliner Tractor…, 60 Som.L.J. 196 (Cascio, J.) (2002).

 

MOTOR VEHICLE CODE § 1515: NOTICE OF CHANGE OF NAME OR ADDRESS

 

Section 1515 of the Vehicle Code addresses the scope of the obligation of one who is licensed to drive by the state of Pennsylvania to provide notification as to a change of name or address. Riek v. Commonwealth of Pennsylvania DOT, 64 Som.L.J. 216 (2009) (Klementik, J.)

 

The notification provisions of Section 1515 apply to holders of issued Pennsylvania licenses, not non-resident holders of licenses from other states. Riek v. Commonwealth of Pennsylvania DOT, 64 Som.L.J. 216 (2009) (Klementik, J.)

 

Because PennDot’s mailing of a suspension notice to the wrong address effectively deprived one of his rights and ability to file a timely appeal, the granting of the appeal nunc pro tunc was appropriate. Riek v. Commonwealth of Pennsylvania DOT, 64 Som.L.J. 216 (2009) (Klementik, J.)

 

MOTOR VEHICLE CODE § 1541: REVOCATION OF LICENSE-PERIOD OF REVOCATION OR SUSPENSION OF OPERATING PRIVILEGE

 

The period of suspension runs from the date determined by the Department or the day of surrender of the license, whichever occurs first; in other words, failure to surrender one’s license will result in the driver remaining on suspension longer than originally mandated by the Department of Transportation. Thus, while a license suspension commences on the effective date determined by the Department, the computation of time for determining when the suspension will end does not begin until the driver surrenders her license.  Commonwealth v. Shaulis, 52 Som.L.J. 288 (1993) (Fike) 

 

Even if the driver does not surrender his or her license, the suspension begins on the effective date specified in the suspension notice. Accordingly, failure to surrender a license does not preclude the Commonwealth from charging the operator with driving during suspension.  Commonwealth v. Shaulis, 52 Som.L.J. 288 (1993) (Fike)

 

MOTOR VEHICLE CODE § 1542: REVOCATION OF HABITUAL OFFENDER’S LICENSE

 

The Department of Transportation shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of 75 Pa.C.S.A. §1542.  Commonwealth v. Hay, 53 Som.L.J. 17 

 

A habitual offender is described as one who has accumulated the record number of convictions provided the offenses occurred within a period of five years.  75 Pa.C.S.A. §1542.  Commonwealth v. Hay, 53 Som.L.J. 17 

 

The commissions of the offenses, and not the convictions which result, must occur within the five-year period to constitute a habitual offender.  Commonwealth v. Hay, 53 Som.L.J. 17

 

MOTOR VEHICLE CODE § 1543: DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKED

 

Because vehicle code violations are generally strict liability infractions such a violation alone may provide the officer with sufficient reasonable suspicion to justify a traffic stop. Commonwealth v. Stephan Blake, 64 Som.L.J. 1 (2007) (Cascio, P.J.).

 

Prosecution under 75 Pa.C.S. § 1543, regarding driving while operating privilege is suspended or revoked, requires the police officer to verify and cite the basis of the prior license suspension, pursuant to § 1543 (d). Commonwealth v. Stephan Blake, 64 Som.L.J. 1 (2007) (Cascio, P.J.).

 

Pa.R.Crim.P. 109 requires the defendant to assert his defense of non-compliance with § 1543(d) at the preliminary hearing stage and to demonstrate that he suffered a manifest and palpable harm as a result of the alleged noncompliance. Commonwealth v. Stephan Blake, 64 Som.L.J. 1 (2007) (Cascio, P.J.).

 

MOTOR VEHICLE CODE § 1547: CHEMICAL TESTING TO DETERMINE AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE

 

Where, upon arrival at the scene of a car accident, an officer finds appellant to have been involved in the accident, smells odor of alcohol on appellant, finds open can of beer in appellant’s car, finds appellant engaged in heated argument and observes him to be flushed and excited, officer was supplied with the requisite grounds to justify a chemical test request pursuant to 75 Pa. C.S.A. §1547.  Commonwealth of PA, DOT v. Maluchnik, 50 Som.L.J. 142

 

In determining if reasonable grounds existed to request a blood alcohol test, the question is, whether from the circumstances existing at the scene, the officer was justified in his belief, at the time, that appellant had been driving under the influence of alcohol.  Commonwealth of PA, DOT v. Maluchnik, 50 Som.L.J. 142

 

The fact that driving under the influence charges are dismissed has no effect on a civil license suspension appeal.  Commonwealth of PA, DOT v. Maluchnik, 50 Som.L.J. 142 

 

An operator of a motor vehicle impliedly consents to have his blood alcohol tested for the purpose of determining whether he was operating a vehicle under the influence of alcohol and failure to submit to such testing constitutes a refusal; thereby resulting in the suspension of the subject’s drivers license.  Commonwealth of PA, DOT v. Boyer, 51 Som.L.J. 92 

 

Fear of needles is no justification for failure to submit to a blood alcohol test; and medical evidence establishing substantial fear of needles is not of such great legal significance that it negates the implied consent of a licensee to submit to the blood test for driving under the influence.  Commonwealth of PA, DOT v. Boyer, 51 Som.L.J. 92 

 

Once the officer has requested that a driver submit to a blood alcohol test, the driver has no right or option to choose the type of test; however, in situations where the driver refused to submit one type of test, and the officer gratuitously offers the driver a subsequent opportunity to submit to a different test, the prior refusal is waived.  Commonwealth of PA, DOT v. Boyer, 51 Som.L.J. 92 

 

A licensee’s failure to supply a sufficient sample of air for a breathalyzer test is a refusal under the Implied Consent Law- 75 Pa.C.S.A. §1547(b); this is true irrespective of whether the licensee acted in good faith in trying to complete the test, and a licensee must produce credible medical evidence explaining his inability to produce a sufficient breath of air in order for the court not to consider this failure to complete the test as a refusal.  Commonwealth of PA, DOT v. Boyer, 51 Som.L.J. 92 

 

Where the licensee continually blows air out of the sides of his mouth rather than into the tube, or fails to make a tight seal around the mouthpiece, the action constitutes a refusal despite best efforts on the part of the licensee.  Commonwealth of PA, DOT v. Boyer, 51 Som.L.J. 92 

 

Section 1547 (c) of the Vehicle Code clearly makes all chemical tests admissible and the issue of reliability can only be addressed through additional evidence.  75 Pa.C.S.A. §1547 (c), (f).  Commonwealth v. Ankeny, 52 Som.L.J. 95 (1991) (Cascio)

 

A police officer is permitted to measure an individual’s blood alcohol content as long as he has reasonable grounds to believe the person to have been driving while under the influence of alcohol.  75 Pa.C.S.A. §1547 (a)(1).  Commonwealth v. Ankeny, 52 Som. 95 (1991) (Cascio) 

 

A layperson is able to give her opinion as to another’s intoxication, even the ability to drive, if she has the personal opportunity to observe the defendant’s behavior. Commonwealth v. Ankeny, 52 Som.L.J. 95 (1991) (Cascio)

 

Officer learns second hand that a driver was intoxicated and he believes that the witness is trustworthy; he should be permitted to use that information to establish the probable cause necessary under §1547 (a)(1) to proceed with chemical testing for alcohol.  75 Pa.C.S.A.  §1547 (a)(1).  Commonwealth v. Ankeny, 52 Som.L.J. 95 (1991) (Cascio)

 

Any person who drives, operates, or is in actual physical control of the movement of a motor 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 motor vehicle while under the influence of alcohol or a controlled substance, or both.  75 Pa. C.S.A. § 1547(a)(1).  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

As a condition of maintaining a driver’s license in this Commonwealth, all drivers are subject to the implied consent requirements of the Motor Vehicle Code and must submit to blood and breath tests under appropriate circumstances.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

Where an officer has reasonable grounds to believe that a motorist is driving while under the influence of alcohol, the driver may properly be requested to submit to a chemical test of blood, breath or urine to determine the alcoholic content of the blood.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

A police officer has a duty to inform a motorist that his or her operating privileges will be suspended upon refusal to submit to chemical testing.  75 Pa. C.S.A. § 1547(b)(2).  The implied consent law does not require the officer to make certain that the motorist understands that he or she could exercise a right to refuse a breathalyzer test when he or she consents to the test.  A motorist has a right to knowing and conscious refusal before his or her license is suspended, not a right to knowing and conscious submission to the breath test.  Commonwealth v. Burella, 54 Som L.J. 279 (October 22, 1997) (Cascio, J.) 

 

To sustain a suspension of operating privileges under Section 1547 of the Vehicle Code, the initial burden rests with the Commonwealth to establish that licensee: (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to submit to a chemical test; and (4) was warned that refusal might result in a license suspension.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Upon the Commonwealth meeting its burden, the burden shifts to licensee to establish that he was not capable of making a knowing and conscious refusal or was physically unable to make the refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When severe, incapacitating injuries are obvious, licensee need not present medical testimony to prove that a knowing and conscious refusal could not be made; however, if the inability to make a knowing and conscious refusal is not obvious, licensee must produce competent medical evidence to support the alleged inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist when a person in the position of the police officer could have concluded that licensee was operating the vehicle while under the influence of intoxicating liquor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In determining whether reasonable grounds exist to conclude that licensee is in actual physical control of the vehicle while under the influence of alcohol, the arresting officer is not required to observe licensee actually operating the motor vehicle, nor does the existence of a reasonable alternative explanation of the situation preclude an arresting officer’s actual belief from being reasonable.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, the police officer need not be correct in his belief that licensee had been driving while intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

For reasonable grounds to exist, there must be some objective evidence that licensee exercised control over the movement of the vehicle at the time he was intoxicated.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Pennsylvania law does not require the arresting officer to be the same officer that provides the Chemical Testing Warnings and witnesses a refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer observes marijuana and beer bottles in the vehicle and around the accident scene and the vehicle is registered to licensee.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Reasonable grounds exist where the officer is told on multiple occasions that licensee was the driver of the vehicle and the officer smelled alcohol emanating from licensee’s person.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A chemical test refusal is defined as anything substantially less than an unqualified, unequivocal assent to the test.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is entitled to a meaningful opportunity to satisfy and comply with the requirements of Section 1547.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

A “meaningful opportunity” contemplates more than simply being read the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

At the very least, a licensee must be conscious, have occasion to hear the reading of the Chemical Testing Warnings, and be afforded an opportunity to give (or refuse to give) consent.  A licensee has an expectation that they will be given the opportunity to hear the warnings, therefore there must exist some credible evidence that the licensee heard the reading of the Chemical Testing Warnings.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffered significant injuries and did not hear the reading of the Chemical Testing Warnings, licensee was not given a meaningful opportunity to give consent.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Licensee is not required to testify about his state of mind at the time he refused chemical testing in order to raise a defense of inability to make a knowing and conscious refusal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where licensee suffers loss of consciousness; is bleeding from head; audibly moaning; visibly in pain; has a bloody, bruised and swollen face; and is unable to speak because of mouth injuries, his injuries are severe, incapacitating, and obvious.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, a reasonable degree of medical certainty is the applicable standard to apply when deciding what constitutes competent medical evidence.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

In license revocation cases, medical evidence must be unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

When presenting competent medical testimony, the medical expert must rule out alcohol as a contributing factor to licensee’s inability to offer a knowing and conscious refusal in order to satisfy licensee’s burden.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

An expert fails the reasonable degree of medical certainty standard if he testifies that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert defined “unlikely” as he did not “believe that licensee was able to give informed consent”, testimony was unequivocal.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

Where medical expert testifies that head trauma would be the more “salient component of licensee’s presentation” and that licensee would not have been able to give consent even if alcohol was not involved, expert sufficiently ruled out alcohol as a contributing factor.  Commonwealth of Pennsylvania, Department of Transportation v. Casey Edward Miller, 65 Som.L.J. 293 (2014) (Klementik, J.)

 

MOTOR VEHICLE CODE § 1581: DRIVER’S LICENSE COMPACT

 

75 Pa.C.S.A. § 1581 codifies the entry of the Commonwealth of Pennsylvania as a party state to the Interstate Driver's License Compact of 1961.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

For the purpose of suspension or revocation of the driving privilege of a Pennsylvania licensee, pursuant to 75 Pa.C.S.A. § 1581, Article IV (a) (2) and (c), the Commonwealth of Pennsylvania is required to treat a conviction of a licensee in a party state of an offense "substantially similar" to driving under the influence of alcohol, as that offense described in Article IV (a) (2), as if the conduct and conviction had occurred in Pennsylvania.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Article III of the Driver's License Compact describes the procedure which a party state is to follow in reporting the conviction of a person from another party state.  It also sets forth what information should be included in a report.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

The Interstate Driver's License Compact does not violate the following: double jeopardy; equal protection; due process; and failure of the reporting state to include all information set forth in Article III of the Company does not render the Commonwealth of Pennsylvania's action of suspension of the operating privilege erroneous or invalid.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Whenever a person licensed to drive in Pennsylvania in convicted in a party state of DUI, Pennsylvania is required to give the same effect to the out-of-state conduct as it would give to that conduct if it had occurred in Pennsylvania.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

In order to find that the additional sanction imposed on appellees by Pennsylvania authorities violated statutory double jeopardy under 18 Pa.C.S. § 111, the court would have to find that the sanction was imposed pursuant to subsequent prosecutions in Pennsylvania for violations based on the same conduct as former prosecutions in other states.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson).

 

Mandatory license suspension imposed by PennDOT pursuant to the Compact constitutes a collateral civil consequence of the out-of–state conviction.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

The Compact does not create any suspect classifications, either facially or through its enforcement, which would implicate the Equal Protection Clause.  The statute accords identical treatment to all Pennsylvania licensees convicted of DUI, whether in Pennsylvania or in another state, by treating the conduct that results in an out-of-state DUI conviction as if it was conduct that occurred in Pennsylvania.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Operating a vehicle on the roadways of the Commonwealth is a privilege and not a contractual, property or constitutional right.  This privilege cannot be suspended, canceled or revoked by the Commonwealth without affording the licensee procedural due process.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Article III of the Compact imposes an obligation on PennDOT only when it is the state reporting the conduct, not when it is the home state.  It does not prohibit PennDOT, as the licensing authority in the home state, from relying on the information contained in the report even if the report lacks certain information specified in Article III.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Omissions by the reporting state under Article III do not prevent Pennsylvania from carrying out its Article IV obligations as the state receiving the report.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

The Compact does not call for a direct comparison of Pennsylvania's statute to the out-of-state statute.  Rather, the Compact requires a two-pronged test.  First, courts must evaluate whether there is a Pennsylvania offense that is of a substantially similar nature to the provisions of Article IV (a) (2).  Second, the reporting state's offense must be of a substantially similar nature to Article IV (a) (2).  Both prongs must be satisfied.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Substantial similarity is satisfied where the statutes under comparison prescribed the same general conduct, not withstanding the fact that the statutes may require differing degrees of culpability.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

In order to conduct the "substantially similar" comparison, the Court must compare all relevant sections of the Ohio D.U.I. statute, and if any section is not substantially similar, then the license suspension will be found improper.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

All applicable sections of the Ohio driving under the influence of alcohol statute are substantially similar to Article IV (a) (2) and 75 Pa.C.S.A. § 3731.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

75 Pa.C.S.A. § 3731 is substantially similar to Article IV (a) (2).  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson).

 

MOTOR VEHICLE CODE § 1701: FINANCIAL RESPONSIBILITY GENERALLY

 

Where there is no genuine issue of fact as to the nature and extent of the plaintiff’s injury, the question of whether an action can be maintained under Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1705(d) is one for the trial court.  Kephart & Kephart v. Sherlock & Sherlock, 61 Som.L.J. 112 (2003) (Cascio, J.)

 

The CAT fund fee is assessed by virtue of the direction contained in the Code as follows: In addition to any fines, fees or penalties levied or imposed by law under this title or any other statute, a surcharge shall be levied an imposed in accordance with subsection (b) as follows: (1) Upon conviction for any violation of the provisions of this title ... which is considered a traffic violation...a surcharge of $30.  Commonwealth v. McClintock, 61 Som.L.J. 2115 (2004) (Cascio, J.)

 

MOTOR VEHICLE CODE § 1702: DEFINITIONS



An individual listed as a “driver” in an insurance policy does not have the status of a “named insured” under 75 Pa.C.S.A. § 1702.  Metheney v. King, 54 Som.L.J. 50 

 

Where the language of a statute is clear and unambiguous, it is to be enforced and not convoluted under the guise of pursuing the spirit of the law.  Metheney v. King, 54 Som.L.J. 50 

 

An individual who is not related to, nor in the custody of a “named insured” at the time of the accident, is neither insured under the terms of the insurance policy, nor insured under the provisions of Section 1702 of the Pennsylvania Motor Vehicle Financial Responsibility Law.  Metheney v. King, 54 Som.L.J. 50

 

The definition of “serious bodily injury” contained in sections of the Vehicle Code must be applied to Section 3807 where it is not defined. In interpreting the Code, the Court is permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Woy, 64 Som.L.J. 159 (2009) (J. Cascio)

 

Under 75 Pa.C.S.A. § 1702, a “serious injury” is defined as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The “serious impairment of body function” threshold contains two inquiries (1) What body functions, if any, was impaired because of injuries sustained in a motor vehicle accident; and (2) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment need not be permanent to be serious. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Although the evidence, when taken in the light most favorable to the Plaintiff, does show that he was injured in the accident, the impairment resulting from that injury is clearly de minimis such that he cannot recover as a limited-tort elector. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The question to be answered is not whether the Plaintiff has adduced sufficient evidence to show that she suffered any injury; rather, the question is whether the Plaintiff has shown that she has suffered a serious injury such that a body function has been seriously impaired. Clearly, it is insufficient for the Plaintiff to show that there has been some injury – no matter how minor – in order to avoid the entry of summary judgment against him. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Under the first prong of the Washington test, it must be determined whether any body function is impaired. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment is the fact or state of being damaged, weakened, or diminished. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

Plaintiff’s first impairment is not serious because the record fails to reflect that the impairment has ever had a practical effect on Plaintiff’s everyday life, her injuries have consistently been diagnosed as mild, and the treatment for her injuries was never extensive. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

An impairment that is not permanent must be even more significant in extent or treatment or some other factor to qualify as being serious. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

The Court holds that the second impairment is clearly de minimis because, like her inability to stay seated, it seems to have had little or no impact on the performance of her job functions and engagement in personal activities. Murphy a.k.a Vitteck v. Caler, 64 Som.L.J. 237 (2009) (Klementik, J.).

 

MOTOR VEHICLE CODE § 1719: COORDINATION OF BENEFITS

 

Health insurance benefits fall within the definition of “program, group contract or other arrangement for payment of benefits” as defined in 75 Pa. C.S.A. § 1719, and therefore in a suit against a third party tortfeasor, a plaintiff is precluded under 75 Pa. C.S.A. § 1722 from recovering medical expenses paid by the plaintiff’s private health insurance carrier.  Frontini v. Phillippi, 54 Som.L.J. 291 (February 24, 1997) (Fike, P.J.) 

 

Medicare benefits fall within the definition of “program, group contract or other arrangement for payment of benefits” as defined in 75 Pa. C.S.A. § 1719.  Frontini v. Phillippi, 54 Som.L.J. 291 (February 24, 1997) (Fike, P.J.)

 

MOTOR VEHICLE CODE § 1720: SUBROGATION



Because compliance with both section 1720 of the MVFRL, regarding subrogation, and 42 U.S.C.S. § 1395(b)(2) of the Medicare statute is impossible, federal law preempts state law regarding subrogation for repayment of medicare benefits in a suit against a third party tortfeasor.  Frontini v. Phillippi, 54 Som.L.J. 291 (February 24, 1997) (Fike, P.J.) 

 

In a MVFRL case, a plaintiff will be permitted to introduce evidence of medical bills and expenses paid by Medicare, and to recover those amounts, because Medicare is entitled to reimbursement or subrogation for medical payments conditionally made to a plaintiff.  Frontini v. Phillippi, 54 Som. L.J. 291 (February 24, 1997) (Fike, P.J.) 

 

MOTOR VEHICLE CODE § 1722: PRECLUSION OF RECOVERING REQUIRED BENEFITS

 

The present version of 75 Pa. C.S.A. § 1722 should not be applied retroactively to govern plaintiffs’ cause of action which arose from an accident occurring before the present amendment to § 1722 took effect.  Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).

 

MOTOR VEHICLE CODE § 1731: AVAILABILITY, SCOPE, AND AMOUNT OF COVERAGE (see also underinsured motorist)

 

The legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the Motor Vehicle Financial Responsibility Law.  Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)

 

In light of the primary public policy concern for the increasing costs of automobile insurance, it is arduous to invalidate an otherwise valid insurance contract exclusion on account of that public policy. This policy concern functions to protect insurers against forced underwriting of unknown risks that insureds have neither disclosed nor paid to insure. Insureds are prevented from receiving gratis coverage, and insurers are not compelled to subsidize unknown and uncompensated risks by increasing insurance rates comprehensively. Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)

 

The Courts of Pennsylvania view an attempt to recover underinsured motorists benefits from a policy that did not insure the vehicle in question at the time of the accident as contrary to the dominant and overarching public policy behind the Motor Vehicle Financial Responsibility Law. Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)

 

MOTOR VEHICLE CODE § 1786: REQUIRED FINANCIAL RESPONSIBILITY

 

Section 1786(d)(1) of the Vehicle Code, 75 Pa.C.S. § 1786(d)(1), provides that the DOT shall suspend the registration of a vehicle for a period of three months if it determines that the required financial responsibility was not secured.  Ward v. Commonwealth, DOT, 61 Som.L.J. 345, 346 (2005) (Cascio, J.) 

 

Section 1786(d)(5) requires an appellant to seek review by the Insurance Commissioner pursuant to Article XX of The Insurance Company Law of 1921.  Ward v. Commonwealth, DOT, 61 Som.L.J. 345, 348 (2005) (Cascio, J.) 

 

The DOT sets forth a prima facie case by submitting a certified copy of the termination transmission and a printout of the vehicle’s registration detail.  Ward v. Commonwealth, DOT, 61 Som.L.J. 345, 348-349 (2005) (Cascio, J.) 

 

Scienter is not a required element of proof in vehicle registration suspension cases.  Ward v. Commonwealth, DOT, 61 Som.L.J. 345, 349 (2005) (Cascio, J.) 

 

A collateral attack upon the cancellation of insurance is beyond a trail court’s scope of review.  Ward v. Commonwealth, DOT, 61 Som. L.J. 345, 350 (2005) (Cascio, J.)

 

MOTOR VEHICLE CODE § 3112: TRAFFIC CONTROL SIGNALS

 

Trooper’s observation of the defendant driving through a steady red light provided the necessary suspicion to justify a vehicle stop.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.)

 

MOTOR VEHICLE CODE § 3309: DRIVING ON ROADWAYS LANED FOR TRAFFIC

 

Police officer did not have reasonable grounds to suspect defendant was in violation of §3309(1) of the Motor Vehicle Code when lanes of traffic were not clearly marked and officer could not determine what part of the roadway was meant to be the berm.  Commonwealth v. Gourley, 53 Som.L.J. 48

 

MOTOR VEHICLE CODE § 3334: TURNING MOVEMENTS AND REQUIRED SIGNALS

 

Police officer did have reasonable grounds to suspect defendant was in violation of §3334(b) of the Motor Vehicle Code when defendant signaled his intention to turn right within the required distance but then made an unsignaled left turn.  Commonwealth v. Gourley, 53 Som.L.J. 48

 

MOTOR VEHICLE CODE § 3361:  DRIVING AT SAFE SPEED

 

In order to prove violation of the reasonable and prudent speed rule, there must be evidence of conditions and actual and potential hazards then existing which would render the speed actually traveled unsafe, that is unreasonable and imprudent, not merely or necessarily unlawful as in violation of a speed limit (speeding).  Commonwealth v. Erisman, 50 Som.L.J. 259 

 

A person may violate Vehicle Code, 75 Pa.C.S.A. §3361 even though he is obeying the speed limit, and violating the speed limit is not necessarily a violation of the reasonable and prudent speed rule.  Commonwealth v. Erisman, 50 Som.L.J. 259

 

MOTOR VEHICLE CODE § 3731: DUI REPEALED

 

PennDOT’s record indicating that license was suspended for violations of § 3731 of the  Motor Vehicle Code and that suspensions were imposed pursuant to the Compact did not violate due process.  The due process clause does not create a right to be deliberately obtuse as to the nature of a proceeding.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

All applicable sections of the Ohio driving under the influence of alcohol statute are substantially similar to Article IV (a) (2) and 75 Pa.C.S.A. § 3731.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

75 Pa.C.S.A. § 3731 is substantially similar to Article IV (a) (2).  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J. Gibson). 

 

Where an adult has 0.10% or more by weight of alcohol in his or her blood at the time of driving, operating or being in actual physical control of the movement of any vehicle if the amount of alcohol by weight in the blood of the person is equal to or greater than 0.10% at the time a chemical test is performed on a sample of the person’s breath, blood or urine is a prima facie case of DUI according to 75 Pa.C.S.A. § 3731 (2002).  However, the chemical test of the sample of the person’s breath, blood or urine shall be from a sample obtained within three hours after the person drove, operated or was in actual physical control of the vehicle.  75 Pa.C.S.A. § 3731 (a.1) (2).  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

Proof of defendant’s driving the vehicle, failure of field sobriety test and BAC over 0.10% are sufficient for a conviction under 75 Pa.C.S.A. § 3731 (a) (1).  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.).

 

MOTOR VEHICLE CODE § 3733: FLEEING OR ATTEMPTING TO ELUDE POLICE OFFICER

 

Section 3733(a) of the Vehicle Code, 75 Pa.C.S.A. § 3733, provides that any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits a misdemeanor of the second degree.  In Re: T.B., 62 Som.L.J. 31, 33 (2005) (Cascio, J.) 

 

It is a defense to prosecution under section 3733(a) if the defendant can show by a preponderance of the evidence that the failure to stop immediately for a police officer’s vehicle was based upon a good faith concern for personal safety. 75 Pa.C.S.A. § 3733(c)(2).  In Re: T.B., 62 Som.L.J. 31, 34 (2005) (Cascio, J.) 

 

Section 3733(c)(2) is clearly and exclusively intended to apply only where the driver’s concern for his or her personal safety arises from a legitimate concern about the person who is attempting to get him or her to pull the car over.  In Re: T.B., 62 Som.L.J. 31, 36 (2005) (Cascio, J.)

 

MOTOR VEHICLE CODE § 3742:  ACCIDENTS INVOLVING DEATH OR PERSONAL INJURY

 

Failing to remain at the scene of an accident to give information and aid is a strict liability offense, and an individual need not intend his actions or even act negligently, recklessly or with knowledge.  75 Pa.C.S.A. §§3742 and 3744.  Commonwealth v. Ankeny, 52 Som.L.J. 95 (1991) (Cascio)

 

Section 3742 is obviously aimed at drivers who attempt to flee the scene of an accident in which they have been involved without making known their identity, thus seeking to evade their responsibilities.  Commonwealth v. Ankeny, 52 Som.L.J. 95 (1991) (Cascio)

 

MOTOR VEHICLE CODE § 3802(a): DRIVING UNDER INFLUENCE, GENERALLY

 

 

 

MOTOR VEHICLE CODE § 3802(g): DRIVING UNDER INFLUENCE, EXCEPTION TO TWO-HOUR RULE

 

75 Pa. C. S. A. § 3802 (g), in effect at the time of these arrests, provided: (g) Exception to two-hour rule.--Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances: (1) where the Commonwealth shows good cause explaining why the chemical test could not be performed within two hours; and (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.  Commonwealth v. Wheeler, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Drake, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Hillegas, 63 Som.L.J. 171 (2006) (Cascio)

 

This court previously examined the language in 75 Pa.C.S. § 3802 (g) and concluded that a person may be convicted if there is evidence in the record to establish that the person's blood alcohol reading exceeded the allowable level within two hours after driving and requires that the chemical test of that person's blood, breath or urine must be collected and tested within that two hour period unless the Commonwealth proves that there is good cause to establish that the chemical test could not be completed within the two hour period and also proves that the driver did not consume any alcoholic beverage or controlled substance between the time of arrest and the time the sample is collected. Commonwealth v. Wheeler, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Drake, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Hillegas, 63 Som.L.J. 171 (2006) (Cascio)

 

A delay between the blood draw and the actual testing procedure need not be fatal to the Commonwealth's effort to use the test results at trial. Commonwealth v. Wheeler, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Drake, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Hillegas, 63 Som.L.J. 171 (2006) (Cascio)

 

We conclude that if the Commonwealth presents expert testimony sufficient to establish that the sample, if properly handled and stored, will reflect an accurate representation of the blood alcohol level at the time of the drawing of the blood, that evidence, coupled with an explanation of the reason why the sample could not be tested during the two-hour window, would be sufficient to permit the blood test results to be admitted into evidence under the exception provided in 75 Pa.C.S. § 3802 (g). Commonwealth v. Wheeler, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Drake, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Hillegas, 63 Som.L.J. 171 (2006) (Cascio)

 

We also find that the Commonwealth is not required to relate the test results back to the two hour period following the driving to permit the test results to be admitted as evidence in a prosecution under 75 Pa. C. S. A. § 3802 (a)(1). Commonwealth v. Wheeler, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Drake, 63 Som.L.J. 171 (2006) (Cascio); Commonwealth v. Hillegas, 63 Som.L.J. 171 (2006) (Cascio)

 

The Defendant is currently charged under Vehicle Code § 1543(b)(1.1) which provides that a person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked for a violation of section 3802 shall, upon a first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.  Commonwealth v. Glover, 63 Som.L.J. 299 (2007) (Cascio, P.J.)                                                                        

At the time of the Defendant's arrest, 75 Pa.C.S.A. §3802(g) stated where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense where the Commonwealth shows good cause explaining why the chemical test sample could not be performed within two hours.  Commonwealth v. Glover, 63 Som.L.J. 299 (2007) (Cascio, P.J.)

                                             

If the Commonwealth presents expert testimony sufficient to establish that a blood sample, if properly handled and stored, will reflect an accurate representation of the blood alcohol level at the time of the drawing of the blood, that evidence, coupled with an explanation of the reason why the sample could not be tested within the two-hour window, would be sufficient to permit the blood test results to be admitted into evidence under the exception provided in §3802(g).  Commonwealth v. Glover, 63 Som.L.J. 299 (2007) (Cascio, P.J.)

 

A blood sample need only be obtained within two hours of driving and the testing can occur at a later time as long as it is coupled with expert testimony as to its sufficiency and an adequate reason for the delay in testing.  Commonwealth v. Glover, 63 Som.L.J. 299 (2007) (Cascio, P.J.)

 

The weight given to the evidence of the blood alcohol content will be for the fact-finder to determine.  Commonwealth v. Glover, 63 Som.L.J. 299 (2007) (Cascio, P.J.)

 

 

MOTOR VEHICLE CODE § 3805: IGNITION INTERLOCK

 

The obvious purpose of Section 3805(g) of the Motor Vehicle Code was to preserve the mandate imposed by prior appellate authority prohibiting the Department of Transportation from independently requiring ignition interlock devices to be installed on vehicles, without an authorizing court order.  However, the Department retained the authority to require an ignition interlock restricted license prior to restoration of operating privileges. Ream v. Commonwealth DOT, 63 Som.L.J. 151 (2005) (Fike, P.J.)

 

MOTOR VEHICLE CODE § 4107: UNLAWFUL ACTIVITIES

 

Given the language of Motor Vehicle Code § 4107(b)(2), proof of knowledge, authorization or other means rea is required to convict.  Commonwealth v. MSI-LLC, 61 Som.L.J. 383 (2005) (Fike, II, P.J.).

 

MOTOR VEHICLE CODE § 4303: GENERAL LIGHTING REQUIREMENTS

 

Motor Vehicle Code § 4303 (f) reads: Off-road lighting.-Off road lighting lamps may be mounted on the roof or roll bar of a vehicle and shall be covered with an opaque covering that prohibits any light from being emitted when the vehicle is being operated on a highway or  trafficway.  Any person who illuminates an off-road lighting lamp while the vehicle is being operated on a highway or a trafficway commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $100.  Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.) 

 

We have concluded that the subject Motor Vehicle Code provision requires the lights to be covered regardless of whether illuminated or being used. Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.) 

 

The first sentence of subparagraph (f), quoted above, if read literally, requires roll bar lights to be covered, regardless of whether the lights are in use or illuminated at the time. However, uncertainty is created by the second sentence of subsection (f), which specifically provides for a penalty for illuminating an off-road lighting lamp while the vehicle is operated on a highway.  Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.) 

 

A reading of the augmenting regulatory provision at 67 Pa. Code § 175.66 (1)(9) convinces us that roll bar lights must be covered regardless of whether illuminated or being used.  The regulation at § 175.66 (1)(9) reads: in accordance with 75 Pa C.S.A. § 4303 (f) (relating to general lighting requirements), roof or roll bar mounted off-road lights may be installed if they are not used on a highway or trafficway and are covered with an opaque covering at all times while operating on the highway or trafficway.  Vehicles equipped with roof or roll bar mounted off-road lights shall have a switch that indicates to the driver, through the use of a pilot light, that the lights are on when so switched.  Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.)  

 

By use of the conjunctive, the regulation requires that the lights not be used on a highway or trafficway and that they be covered with an opaque covering at all times while operating on a highway or trafficway.  The requirement of covering is in addition to the prohibition against use, and, consequently, requires as a preventive measure that all roll bar lights be covered, regardless of whether in use or not, when a vehicle is operated on a highway or trafficway.  Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.) 

 

The fact that in the instant case the roll bar lamps may have been inoperative, does not affect the existence of probable cause.  Probable cause does not equate with conviction.  Even though defenses may exist which ultimately will result in acquittal, probable cause is evaluated on the basis of the facts as they appear to the arresting officer at the time.  Commonwealth v. Artie James Robinson, 62 Som.L.J. 152 (2005) (Fike, P.J.)

 

MOTOR VEHICLE CODE § 4535: AUDIBLE WARNING DEVICES

 

Violations of Motor Vehicle Code §§ 4903(c.1) and 4535(b) constitute absolute liability offenses and, consequently, proof of knowledge, authorization or other means rea is not required for conviction.  Commonwealth v. MSI-LLC, 61 Som.L.J. 383 (2005)(Fike, II, P.J.) 

 

MOTOR VEHICLE CODE § 4903: SECURING LOADS IN VEHICLE

 

Under Motor Vehicle Code § 4903(c.1), either the owner or operator of a vehicle, or both, may be cited for the same violation of this statutory section.  Commonwealth v. MSI-LLC, 61 Som.L.J. 383 (2005)(Fike, II, P.J.). 

 

Violations of Motor Vehicle Code §§ 4903(c.1) and 4535(b) constitute absolute liability offenses and, consequently, proof of knowledge, authorization or other means rea is not required for conviction.  Commonwealth v. MSI-LLC, 61 Som.L.J. 383 (2005)(Fike, II, P.J.)

 

MOTOR VEHICLE CODE § 6304: AUTHORITY TO ARREST WITHOUT WARRANT

 

The clear, explicit language of 75 Pa.C.S.A. § 6304 (a) requires state police trooper to be in uniform to effectuate an arrest for violation of the Motor Vehicle Code.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.). 

 

It is not improper for an off-duty, non-uniformed state police officer to detain a suspected drunk driver until an on-duty, uniformed officer can respond to the scene and arrest the driver; such conduct is not a violation of 75 Pa.C.S.A. § 6304 (a).  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.).

 

 MOTOR VEHICLE CODE § 6308: INVESTIGATION BY POLICE OFFICER

 

The authority of a police officer to stop a vehicle for a violation of the Motor Vehicle Code is governed by 75 Pa.C.S. §6308(b).  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

A police officer's detection of an odor of alcohol on a motorist's breath, following an otherwise proper stop for a violation of the motor vehicle code, may warrant further investigation in the form of a field sobriety test, and the evidence obtained following the driver's failure of that test may be admissible in a prosecution for driving under the influence of alcohol.  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

A police officer may lawfully stop a vehicle if the officer has “reasonable, articulable facts to suspect a violation of the Vehicle Code, 75 Pa.C.S.A. §6308(b).  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.).

 

MOTOR VEHICLE CODE: REGISTRATION REQUIREMENT AND EXEMPTIONS

 

Dump trucks are both vehicles and trucks within the meaning of the Vehicle Code.  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 453 (2015) (Cascio, P.J.).

 

[U]nder 75 Pa. Cons. Stat. Ann. § 1301(a), “No person shall drive or move and no owner or motor carrier shall knowingly permit to be driven or moved upon any highway any vehicle which is not registered in this Commonwealth unless the vehicle is exempt from registration.”  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 453 (2015) (Cascio, P.J.).

 

75 Pa. Cons. Stat. Ann. § 1302, entitled, “Vehicles exempt from registration,” enumerates exemptions from the Code’s registration requirement.  Section 21 exempts “[s]pecial mobile equipment engaged in construction activities within one mile of an active construction site where the vehicle is being used….”  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 454 (2015) (Cascio, P.J.).

 

The term “special mobile equipment” is defined both within the Pennsylvania Consolidated Statutes and within the Pennsylvania Code…As statute and administrative code both exclude dump trucks from their definitions of “special mobile equipment,” the “special mobile equipment” exemption to registration, i.e., 75 Pa. Cons. Stat. § 1302(21) cannot be invoked….  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 454 (2015) (Cascio, P.J.).

 

Under 75 Pa. Cons. Stat. Ann. § 1302(4), vehicles which have special permits for, inter alia, the movement of quarry or construction equipment are exempt from the registration requirement.  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 454 (2015) (Cascio, P.J.).

 

§ 4961(a) empowers the Department of Transportation and local governments to issue these permits whereby vehicles become exempted from registration.  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 455 (2015) (Cascio, P.J.).  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 455 (2015) (Cascio, P.J.).

 

We also draw attention to § 4970’s use of the phrase “A permit may be issued…authorizing [certain persons] to move oversized or overweight construction equipment….” Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 457 (2015) (Cascio, P.J.).

 

According to 1 Pa. Cons. Stat. Ann. § 1903(a), “Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases…shall be construed according to such peculiar and appropriate meaning or definition.” Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 457 (2015) (Cascio, P.J.).

 

In this case, the operative word is “or,” the first definitions of which are, “used as a function word to indicate (1) an alternative between different or unlike things, states, or actions…(2) choice between alternative things, states, or courses….” While, there are subsequent definitions which state that “or” may be used to denote equivalence between two things, or clarification of one thing by another, we believe that to use “or” in this sense would erode the differences between two distinct concepts (i.e., oversize, and overweight). Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 457 (2015) (Cascio, P.J.).

 

The distinction between size and weight is clearly important, as evinced by the fact that different parts of the Code have different provisions relating to size and, separately, to weight.  Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 457 (2015) (Cascio, P.J.).

 

[T]here are different statutes, and different exemptions, relating to size and weight, respectively, such that we cannot justify reading a permit for an oversized vehicle into a permit which only provides for an overweight vehicle.  The vehicles at issue here were oversized and overweight; the Agreement only referred to said vehicles as being overweight; therefore, there was no permit authorizing Defendant to operate oversized vehicles without registration. Commonwealth v. Banshee Crane & Farm, LLC, 65 Som.L.J. 458 (2015) (Cascio, P.J.).

 

SUMMARY CONVICTION – IMPOSITION OF RESTITUTION

 

Pursuant to 18 Pa.C.S. § 1106(h), summary offenses fall with the definition of “crimes” under the Crimes Code since they are punishable by a magisterial district judge. Commonwealth v. Charles Burnsworth, 63 Som.L.J. 263 (2006) (Cascio, P.J.)

 

Section 6502(c) of the Motor Vehicle Code does not prohibit a trial court from imposing restitution for a summary offense, whether the offense is under the Motor Vehicle Code or the Crimes Code. Commonwealth v. Charles Burnsworth, 63 Som.L.J. 263 (2006) (Cascio, P.J.)

 

UNDERINSURED MOTORIST (see also Section 1731)

 

The legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the Motor Vehicle Financial Responsibility Law.  Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)

 

In light of the primary public policy concern for the increasing costs of automobile insurance, it is arduous to invalidate an otherwise valid insurance contract exclusion on account of that public policy. This policy concern functions to protect insurers against forced underwriting of unknown risks that insureds have neither disclosed nor paid to insure. Insureds are prevented from receiving gratis coverage, and insurers are not compelled to subsidize unknown and uncompensated risks by increasing insurance rates comprehensively. Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)

 

The Courts of Pennsylvania view an attempt to recover underinsured motorists benefits from a policy that did not insure the vehicle in question at the time of the accident as contrary to the dominant and overarching public policy behind the Motor Vehicle Financial Responsibility Law. Safe Auto Insurance v. Petrunak, 63 Som.L.J. 181 (2005) (Geary)