A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania v. William Howard Barker, Jr., Appellant, 2013 WL 3475480, 2013 PA Super 178, 1153 WDA 2010 (July 10, 2013). This was a DUI appeal from the Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0006360–2009 (Judge Todd). The judges were STEVENS, BENDER, BOWES, GANTMAN, DONOHUE, ALLEN, OLSON, OTT, and WECHT. Judge Bender wrote the Opinion. President Judge Stevens filed a Concurring and Dissenting Opinion in which Judge Allen joined and Judge Gantman concurred in the result.

William Barker appealed from a judgment of sentence of six months’ probation and a $1000 fine following his conviction of Driving Under the Influence of a Controlled Substance. 75 Pa .C.S. § 3802(d)(2). The Court en banc ruled that the arresting officer,Officer Naviglia, refused to allow an alternate test in accordance with Barker’s request which violated the mandate of 75 Pa.C.S. § 1547(i), and thus deprived him of admissible evidence that, had it been available, would have been relevant to the charges.

After his DUI arrest, the Appellant was taken to a hospital for a blood draw. There Barker requested to undergo a breathalyzer, urine, or hair follicle test, all of which Officer Naviglia refused.

75 Pa.C.S. § 1547(i): Request by driver for test — Any person involved in an accident or placed under arrest for a violation of section 1543(b)(1.1), 3802 or3808(a)(2) may request a chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.

The statute creates an imperative under section 1547(i) that if the motorist requests one of the alternate means of chemical testing, the officer is required to honor the request when reasonably practicable. Section 1547(i) vests licensed drivers with a statutory right, the deprivation of which undermines the ability to counter the Commonwealth’s allegations. In this case, Officer Naviglia’s refusal to allow alternate testing pursuant to section 1547(i), in accordance with Barker’s multiple requests, was a clear violation of the statutory right created in favor of any motorist arrested on the charge of Driving Under the Influence.

The statute presumes the validity of the motorist’s request and vests the officer with discretion to decline the request only if circumstances render the testing “incapable of being put into practice with the available means.” Thus, this language allows the officer to decline alternative testing only if the test requested is not within the means available at the time the testing is sought. By the same token, this element of practicability acts as a safeguard against the whims of willful motorists who might demand alternate forms of testing as retribution upon the arresting officer: “The statutory scheme offers no quarter to arbitrary conduct by either a motorist under arrest or the arresting officer, but instead imposes an expectation on both that testing shall be carried out in recognition of the practical constraints on the officer with due regard for the motorist’s individual rights.”

A refusal by an arresting officer to allow alternate testing as requested by the motorist deprives that motorist of evidence admissible in any subsequent prosecution under section 3802. To the extent that section 3802(d)(2) addresses the degree to which ingestion of a controlled substance may have compromised the motorist’s ability to drive safely, the results of chemical testing are admissible to prove or rebut charges under that section: “The refusal of an officer to allow such testing, when practicable, imposes so significantly on the motorist’s attendant right to that evidence as to obviate any suggestion that the manner of such testing is consigned to the unfettered discretion of the arresting officer. Thus, where the motorist requests alternate practicable testing and offers a facially valid reason for his request, we discern no basis in the statutory language for the officer to refuse the request.”

Because the officer’s failure to comply with the statute violated Barker’s statutory right to the results of the chemical testing, the Court reversed the judgment of sentence and discharged the Appellant.

The attorney for the Appellant was Carl Parise, Esq. of Pittsburgh.

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