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


By Burt Rose

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The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Jason C. BARR, Appellant, 2013 WL 5729795, 2013 PA Super 281, 1967 WDA 2012 (Oct. 22, 2013). This was an appeal from a Judgment of Sentence of Judge Arner of the Court of Common Pleas of Clarion County. The case was before judges LAZARUSOLSON and COLVILLE. Judge Olson wrote the Opinion.

The Appellant was convicted of violating 75 Pa.C.S.A. § 3802(a)(1)—which prohibits an individual from operating a vehicle “after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving.” Since, at the time Appellant was driving, Appellant was involved in an accident where both he and his passenger were injured—and since Appellant had one prior DUI conviction—Appellant’s current DUI conviction would have, standing alone, constituted an ungraded misdemeanor. 75 Pa.C.S.A. § 3803(b)(1) prescribes the statutory maximum penalty for such a conviction to be six months’ imprisonment; Section 3804(b)(2) declares that the mandatory minimum term of imprisonment for the conviction is 30 days in jail. However, the jury also determined that Appellant “refused” to submit to a chemical test. Since this was Appellant’s second DUI conviction within the preceding ten years, the jury’s determination that Appellant refused to submit to chemical testing increased the grade of Appellant’s DUI conviction from an ungraded misdemeanor to a misdemeanor of the first degree. See 75 Pa.C.S.A. § 3803(b)(4). The jury’s “refusal” determination also increased Appellant’s statutory maximum penalty from six months’ imprisonment to five years’ imprisonment and increased Appellant’s mandatory minimum penalty from 30 days in jail to 90 days in jail. Indeed, Appellant’s sentence of 30 to 60 months in prison—while falling in the standard range for a first-degree misdemeanor—would far exceed the statutory maximum penalty for an “unenhanced” general impairment conviction.

Therefore the issue here was whether the implied consent warnings constitute an essential component of a “refusal” and whether Apprendi v. New Jersey, 530 U.S. 466 (2000) demands that a jury determine that the officer informed the Appellant of the implied consent warnings.

The factual determination that the Appellant “refused” to submit to a chemical test caused an increase in the penalty for his DUI conviction beyond the prescribed statutory maximum. Therefore, the factual issue regarding his refusal needed to be submitted to the jury and proven beyond a reasonable doubt.  Here the trial court’s jury charge failed to “accurately and adequately” describe the law regarding what constitutes a valid “refusal” to submit to a chemical test. UnderCommonwealth v. Xander, 14 A.3d 174 (Pa.Super.2011), issuance of the implied consent warnings is a necessary prerequisite to a valid “refusal”. As such, the warnings constitute an essential component of the “refusal.” Moreover, since the implied consent warnings constitute an essential component of a “refusal,” Apprendi demands that the trial court submit to the jury—and the Commonwealth prove beyond a reasonable doubt—the issue of whether the officer informed Appellant of the requisite warnings. When the trial court rejected his proposed jury instruction and then failed to instruct the jury on the requisite warnings, the trial court committed an error of law such that a new trial was required, but limited to the issue of whether Appellant “refused” to submit to a chemical blood test.

In a footnote, the Court also noted that Alleyne v. United States, 133 S.Ct. 2151 (2013) also demands that the fact of a “refusal” “be submitted to the jury and found beyond a reasonable doubt.

Scott A. White, Esq. of the Clarion County Public Defender’s Office represented the Appellant.


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