Commonwealth v. Jarman

¶1dissenting.

¶2Until this Court directly addresses the issue of whether the Commonwealth must present expert testimony to relate the blood alcohol test results back to the time of driving, the Courts of the Commonwealth will continue to be besieged with appeals like the one sub judice.

¶3Assuming a lawful arrest and proper blood alcohol testing procedures, I believe that once the Commonwealth has introduced evidence to establish that the defendant’s blood alcohol test registered at least .10 percent, the Commonwealth has made a prima facie case under 75 Pa.C.S. § 3731(a)(4) (hereinafter, “the statute”). I do not believe that the Commonwealth is required to present expert testimony to relate the test results back to the time of driving in order to prove its case. After the Commonwealth has introduced evidence to establish that the blood alcohol test met or exceeded the .10 percent threshold, the defendant would then be entitled to present expert testimony, if available, to rebut the Commonwealth’s prima facie evidence that his blood alcohol level was at least .10 percent at the time he was operating a vehicle.

¶4As early as 1936, this Court held that operating a motor vehicle on the highways of the Commonwealth is a privilege, not a right.

The permission to operate a motor vehicle upon the highways of the Commonwealth is not embraced within the term civil rights, nor is a license to do so a contract or a right of property in any legal or constitutional sense. Although the privilege may be a valuable one, it is no more than a permit granted by the state, its enjoyment depending upon a compliance with the conditions prescribed by it, and subject always to such regulation and control as the state may see fit to impose.

¶5Commonwealth v. Funk, 323 Pa. 390, 395, 186 A. 65, 67-68 (1936). Furthermore, it “is now virtually universally accepted that a person with a [blood alcohol percent] of 0.10 should not be driving.” Commonwealth v. Mikulan, 504 Pa. 244, 248, 470 A.2d 1339, 1341 (1983), quoting Burg v. *99People, 144 Cal.App.3d 169, 192 Cal.Rptr. 531, 534 (1st Dist.1983). As we also stated in Mikulanconcerning this statute, “the legislature has exercised its broad police powers in these areas in an attempt to halt, or at least to retard, the wanton and senseless slaughter of and injury to innocent people upon our highways caused by drunk drivers.” Id.504 Pa. at 248, 470 A.2d at 1341. With these considerations in mind, I do not believe that we should require the Commonwealth to present expert testimony to relate the blood alcohol test back to the time of driving.

¶6As appellant concedes, circumstantial evidence alone is sufficient to convict one of an offense. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). “Circumstantial evidence may be sufficient to prove any element, or all the elements of a crime.” Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107-08 (1988). Furthermore, when reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable to the Commonwealth along with all reasonable inferences arising therefrom. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). Given these principles, why can the Commonwealth not prove a violation of the statute with a highly accurate blood test? Is it not relevant circumstantial evidence sufficient to prove the crime charged?

¶7In the case sub judice, the expert called by the Commonwealth testified that alcohol reaches its peak in the bloodstream within 60-90 minutes after consumption; that it was not possible to tell, on the basis of a single blood test, whether the blood alcohol was rising or falling; and that he could not say with clinical certainty what appellant’s precise blood alcohol content was at the actual time of driving. However, due to the defendant’s Fifth Amendment right not to give evidence against himself, the Commonwealth cannot and should not be able to compel the defendant to relate when he drank, how much he drank, and when he consumed his last drink. Without this information, no expert will be able to ascertain whether the defendant’s blood alcohol was rising or falling at the time of the blood *100alcohol test. Thus, if we require the Commonwealth to present expert evidence in a case charged under the statute, we are levying an impossible burden on the Commonwealth to prove its case.

¶8If a defendant believes that he was actually operating below a .10 percent blood alcohol limit at the time of driving, he is entitled to obtain an expert. If the defendant is able to provide the expert with a sufficient factual basis to refute the charge that the defendant was driving with a blood alcohol of less than .10 percent, then the expert can so testify.1 The Commonwealth would of course be free to refute such testimony with its own expert, if it has the need and ability to do so. It then becomes a question of fact for the jury to decide.2

¶9I believe that a “case-by-case” review of every conviction under the statute on the grounds alleged in this case will lead to a virtually unenforceable and unworkable law. Every time there is a case in which the test results are between .10 and .15 percent (approximately), and the test was not conducted within minutes of the actual driving, the Commonwealth will be unable to prove its case. This would defeat the vital purpose and intent of the statute and would operate as a de facto evisceration of the .10 percent blood alcohol limitation in the statute.

¶10*101It should be remembered that the purpose of this law is to encourage people to drive safely and soberly. If people choose to drive when their blood alcohol is elevated, then they should take enough care to make certain they are within legal limits. The jury was free to disbelieve appellant's evidence that his blood alcohol was rising at the time of the test (which they apparently did) and find that there was sufficient evidence to convict appellant under the statute.

¶11I fully support the reasoning of the Superior Court in the case of Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), appeal denied, 517 Pa. 594, 535 A.2d 83 (1987) and believe that it provides the most logical, fair and safe result.

¶12I dissent.