Legal Intelligencer--High Court: ARD Admission Is Not Considered a Prior Offense to Enhance Sentencing for a DUI

Matthew T. Mangino
The Legal Intelligencer
June 12, 2025

The Pennsylvania Supreme Court has ruled that 75 Pa.C.S.A. 3806 of the Motor Vehicle Code—which includes accelerated rehabilitation disposition (ARD) in the definition of a prior offense for purpose of sentencing on a second or subsequent driving under the influence conviction—unconstitutional.

The court found that ARD does not equate to a conviction because it lacks the procedural safeguards of a criminal trial, such as the right to a jury trial and the requirement of proof beyond a reasonable doubt.

The high court’s decision finally puts to rest the evolving question of whether admission into the ARD program can be used as a sentence enhancement for purposes of deterring recidivist conduct on Pennsylvania’s roadways.

In May 2020, the Pennsylvania Superior Court turned the DUI statute on its head.

Igor Chichkin was charged with DUI in Philadelphia in 2017. Chichkin had a prior DUI charge in which he received ARD, a diversion program. Upon acceptance into the ARD program a defendant need not plead guilty or not guilty. If the defendant successfully completes the program the charges are dismissed and the defendant may seek the expungement of the charge.

Prior to the decision is Chichkin, if a defendant was arrested within 10 years of accepting ARD, he or she could be charged with a DUI second offense which carried a mandatory minimum of 30 days in jail, 75 Pa.C.S.A. 3804 (b) (2). For sentencing purposes in Pennsylvania an ARD was considered a prior offense, Section 3806 (a).

Chichkin went to trial on his new offense and was convicted of DUI. As a result of his prior ARD, he was sentenced to 30 days to six months in jail.

On appeal, Chichkin raised the landmark U.S. Supreme Court decision of Alleyne v. United States, 570 U.S. 99 (2013). The Alleyne court held that the Sixth Amendment guarantees an accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found beyond a reasonable doubt.

Alleyne was an expansion of the high court's prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Alleyne held "a defendant has due process rights to specific notice in the charging document and proof beyond a reasonable doubt, as well as, the constitutional guarantee of a jury determination" with regard to "any factual determination that triggers a mandatory minimum sentence."

As a result, the court vacated Chichkin’s mandatory minimum sentence.

The court wrote about the prior offense excused by ARD, “They are a "fact" that, pursuant to Alleyne, Apprendi, and their progeny, must be presented to the fact finder and determined beyond a reasonable doubt before a trial court may impose a mandatory minimum sentence under Section 3804,” see Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).

The Chichkin decision created chaos for prosecutors and the courts. However, that chaos was short lived. In fact, I anticipated the recent Pennsylvania Supreme Court decision in an article for “The Legel Intelligencer” in January 2023. I wrote then, “The prosecution of repeat DUI offenders is back where it was prior to 2020 ... this is not the last we will hear on this subject. Stay tuned, this matter will most likely end up before the Pennsylvania Supreme Court.”

How did this matter ultimately get to the high court? In Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en banc), and Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc), the Superior Court held that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

The court made it clear that the decision of a defendant to enter the ARD program is voluntary. A defendant “is free to reject participation in the program if he wishes to avail himself of his full panoply of constitutional rights.”

Applying for, and being accepted into, the ARD program does not carry the same procedural safeguards of a conviction following trial. The court found “The safeguards in place to be adequate.” The court emphasized that “Section 3806(a) appropriately notifies a defendant that earlier ARD acceptance will be considered a prior DUI offense for future sentencing purposes.” The voluntary nature of the ARD program mitigates the due process concerns expressed by the U.S. Supreme Court. As a result, a defendant’s prior acceptance of ARD fits within the limited “prior conviction” exception set forth in Apprendi.

The Superior Court was unequivocal in its holding in Richards, “We expressly overrule Chichkin.”

On May 30, 2025, the Pennsylvania Supreme Court decided Commonwealth v. Shifflett, No. 26 MAP 2024. In 2012, Shifflett was charged with the offense of driving under the influence of alcohol 75 Pa.C.S. Section 3802(d)(3). He was accepted into an ARD program.

In 2022, George Thomas Shifflett was arrested for another DUI and, based on his previous acceptance of ARD for his 2012 offense, he was charged with DUI as a second offense.

Shifflett pleaded guilty to the second DUI. At that time, the commonwealth asserted that, pursuant to Section 3806 the plea constituted a second DUI offense. The trial court agreed with Shifflett’s claim that the prior ARD should be considered a prior offense.

The commonwealth appealed, arguing that the trial court erred in failing to treat the appellant’s 2012 offense as a prior offense under Section 3806 and impose an enhanced sentence under Section 3804 as a result of the decisions in Richards and Moroz holding that, pursuant to Section 3806, a defendant’s previous acceptance of ARD for a DUI constitutes a prior offense for purposes of imposing a mandatory minimum sentence under Section 3804.

According to the opinion in Shifflett, the trial court, in its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, concluded that, in light of Richards and Moroz, it erred in granting the appellant’s motion to exclude at sentencing evidence of his previous acceptance of ARD for his 2012 offense, and, accordingly, requested that the Superior Court remand the case for resentencing. In a unanimous, unpublished memorandum opinion, the Superior Court vacated Shifflett’s judgment of sentence and remanded for resentencing.

The Pennsylvania Supreme Court agreed to hear Shifflett’s appeal focusing on the U.S. Supreme Court’s decision in Alleyne, and whether it was unconstitutional to consider Shifflett’s previous acceptance of ARD as a prior offense for sentencing purposes.

Pennsylvania Supreme Court Chief Justice Debra Todd, writing for a 4-3 majority, found “acceptance into an ARD program does not offer a defendant any of the constitutional safeguards that accompany either a criminal conviction or a guilty plea proceeding.”

The safeguards recognized by the U.S. Supreme Court’s in Apprendi and Alleyne, namely that any fact which increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt are not present with admission to ARD.

The high court continued, “Thus, an individual’s previous acceptance of ARD, which, when construed as a prior offense under Section 3806 to increase the penalty for a subsequent conviction pursuant to Section 3804, is a fact that must be submitted to a jury and proven beyond a reasonable doubt.”

The reasoning in Chichkin is again the law of the commonwealth. Once and for all, admission to ARD is not considered a prior offense for purposes of enhancing a driving under the influence sentence.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County, Pennsylvania. He is the author of "The Executioner’s Toll." You can follow him on Bluesky @matthewmangino.bsky.social or contact him at mmangino@lgkg.com.

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Big news from PA Supreme Court: ARD not counted as prior offense in subsequent DUI charge

Pennsylvania Supreme Court makes big decision in Commonwealth v. Shifflett, essentially reinstating Chichkin. In 2012, George Thomas Shifflett was charged with driving under the influence (DUI) and accepted into an Accelerated Rehabilitative Disposition (ARD) program. In 2022, Shifflett was involved in another DUI incident and was charged as a second-time offender based on his previous ARD acceptance. Shifflett pled guilty to the 2022 DUI but contested the use of his 2012 ARD as a prior offense for sentencing purposes, arguing it was unconstitutional under Alleyne v. United States.

The Adams County Court of Common Pleas granted Shifflett's motion to exclude evidence of his 2012 ARD and sentenced him as a first-time offender. The Commonwealth appealed, and the Superior Court vacated the sentence, remanding for resentencing as a second-time offender, citing recent Superior Court decisions that overruled Commonwealth v. Chichkin, which had held that using ARD as a prior offense for sentencing was unconstitutional.

The Supreme Court of Pennsylvania reviewed the case to determine if considering Shifflett's ARD as a prior offense for sentencing violated Alleyne. The Court held that ARD does not equate to a conviction because it lacks the procedural safeguards of a criminal trial, such as the right to a jury trial and the requirement of proof beyond a reasonable doubt. Therefore, using ARD as a prior offense for sentencing enhancement is unconstitutional under Alleyne.

The Court concluded that Section 3806 of the Motor Vehicle Code, which includes ARD in the definition of a prior offense, is facially unconstitutional to the extent it allows ARD to be used for sentencing enhancement. The Court reversed the Superior Court's order and remanded the case for reinstatement of Shifflett's original sentence as a first-time offender.

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DA accused of preferential treatment for rich and famous

The lawyer for a Derry man awaiting trial on drunken driving charges contends Westmoreland County District Attorney John Peck gave preferential treatment to a local celebrity and unfairly rejected a bid for his “blue collar” client to enter a jail diversionary program, reported the Pittsburgh Tribune Review.

Defense attorney Robert Domenick, in court documents filed Wednesday, said Peck’s office used “divine district attorney superpowers” when it allowed the radio play-by-play man for the Pittsburgh Steelers and University of Pittsburgh football and basketball teams to enroll in the Accelerated Rehabilitative Disposition program for a DUI charge last year. Prosecutors declined to offer the same deal to a Giant Eagle meat cutter accused of a similar offense.

Paul Barnhart, 25, was arrested Dec. 12 when police said he was drunk while driving his Dodge Charger up to 120 mph on Route 22 in Derry Township. According to court records, police said Barnhart had a blood-alcohol content of 0.174%, more than twice the limit at which a motorist in Pennsylvania is considered to be intoxicated.

He was charged with DUI and speeding offenses and faces potential sentences of three days in jail or six months on house arrest, if convicted, Domenick said. He noted that Barnhart had never before been arrested but had several traffic offenses on his record.

Domenick said prosecutors refused to allow Barnhart to enter the ARD program, which allows first-time nonviolent offenders to serve a probation term without having to plead guilty to charges and enables them to have their criminal records expunged.

As part of its argument, the defense referred to the DUI case last year of broadcaster Bill Hillgrove. The 79-year-old Murrysville resident was charged in January 2020 after police said he was intoxicated and crashed his car through the front windows of a local pharmacy. No one was injured. Hillgrove in October, with the district attorney’s consent, entered the ARD program and was ordered to serve two years on probation. It was Hillgrove’s second time in the ARD program, having served a probation sentence for another drunken driving charge about two decades earlier.

Domenick said the district attorney has not applied a fair standard when determining who is allowed to enroll in the diversionary program.

“We are arguing that hitting a building full of people at 5 (p.m.) while driving drunk is more dangerous to human life and public safety than speeding at night on a(n) empty stretch of a divided four-lane highway where no businesses are open,” Domenick wrote in his court filing. “Yet our district attorney seems to have set a low bar for admission to the ARD program for the rich and famous only.”

Peck denied the accusation of favoritism and said the circumstances between the two cases are significantly different. He called the allegations related to Barnhart “too egregious to be considered for ARD,” and denied that Hillgrove’s status played a role in his case.

“I don’t know Mr. Hillgrove. He was simply another defendant in a case,” Peck said.

Judge Christopher Feliciani scheduled a hearing on Oct. 18 on Barnhart’s request to allow him to enter the program over the district attorney’s objections.

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State Court: Gas stations can be liable for selling gas to drunk drivers

Gasoline stations in New Mexico can be liable for selling fuel to drivers they know or have reason to know are intoxicated, the New Mexico Supreme Court ruled, according to the ABA Journal.

The state supreme court ruled that the tort of negligent entrustment of chattel extended to gasoline sales.

“Providing gasoline to an intoxicated driver is like providing car keys to an intoxicated driver,” the court said in the July 19 opinion.

Previously, no New Mexico decision applied the doctrine of negligent entrustment outside the context of vehicles entrusted to someone who is incompetent to drive.

The New Mexico Supreme Court is the second top state court to extend liability to gasoline stations for injuries to third parties caused by drunken drivers, according to the opinion. Tennessee’s top court was the first.

The Associated Press has coverage of the New Mexico Supreme Court’s 3-1 decision, which is summarized in a press release, available here, by the New Mexico Administrative Office of the Courts.

The New Mexico Supreme Court ruled in response to a certified question by the 10th U.S. Circuit Court of Appeals at Denver. The suit was filed in New Mexico state court by the estate of Marcellino Morris Jr. and removed to federal court. The defendant is Giant Four Corners Inc.

According to the lawsuit allegations, Andy Denny was intoxicated when he ran out of gas and walked to the gas station in the early morning hours of Dec. 30, 2011. At first, the clerk refused to sell anything to Denny because he appeared intoxicated but then agreed to sell him a gallon of gas. After he and a companion took the gas to Denny’s car, they drove back to the gas station and bought another nine gallons of gas.

Denny dropped off his passenger and got on the highway, where he crossed the center line and crashed with Morris’ oncoming vehicle. Morris died in the collision.

Justice C. Shannon Bacon wrote the majority opinion.

“We conclude that under New Mexico law and the doctrine of negligent entrustment of chattel, a commercial gasoline vendor owes to a third party using the roadway a duty of care to refrain from selling gasoline to a driver the vendor knows or has reason to know is intoxicated,” Bacon said.

Retired Justice Barbara Vigil, sitting by designation, dissented. She described the majority’s decision as a “sea change in the law [that] could have far-reaching consequences for retail businesses.” She argued that regulating businesses is a legislative function that should not be imposed by judicially created common law duties.

“The majority creates a sweeping new duty based on atypical facts—gasoline purchased from an attendant—then fails to address how this rule is to be applied in the typical scenario when gasoline is purchased at the pump,” Vigil wrote. “It is unclear whether erratic behavior observed through a window gives rise to a duty to investigate, for example, and the majority provides no guidance as to how that investigation should occur.”

Vigil also said the majority reasoning could extend liability to any vendor that enables drunken driving, including auto parts stores, tire shops and mechanics.

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The Legal: Pa. Superior Court Strikes Blow to DUI Sentencing Scheme

Matthew T. Mangino

The Legal Intelligencer

July 24, 2020

The Pennsylvania Superior Court recently changed the sentencing landscape for those facing prosecution for a second, or subsequent charge, of Driving Under the Influence. In Commonwealth v. Chichkin, 2020 Pa. Super. 121, No. 3473 EDA 2018 and Commonwealth v. Roche, 2020 Pa.Super. 121, No. 3475 EDA 2018, the Superior Court ruled the prior acceptance of accelerated rehabilitative disposition (ARD) does not qualify as a prior conviction for purposes of driving under the influence (DUI) sentencing.

Igor Chichkin was arrested and charged with DUI in Philadelphia for an incident that occurred during fall 2017. His case proceeded to trial in the Philadelphia Municipal Court in spring 2018, at which time he was found guilty of two counts of DUI-general impairment under 75 Pa.C.S. Section 3802 (a) (1), “An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.”

A violation of Section 3802 (a) (1) is punishable by six months of probation and $300 fine. However, in 2013, Chichkin had been arrested for DUI and was accepted into the ARD program pursuant to 75 Pa.C.S. Section 3807.

As a result, the court applied 75 Pa.C.S. Section 3804 (b) (2) (i) and imposed a mandatory minimum sentence of 30 days in jail because the current DUI was considered a second offense within 10 years.

The facts in Lisa Roche’s case were similar. She pleaded guilty in Philadelphia in 2018 and was sentenced to 30 days to four months because she had been admitted into the ARD program within the previous 10 years.

In both cases, the appellants argued that the application of a mandatory minimum sentence violated well-established decisions by Pennsylvania appellate courts and the U.S. Supreme Court.

In 1982, the Pennsylvania Superior Court ruled in Commonwealth v. Knepp, 453 A.2d 1016 (1982) admission into the ARD program is not considered a conviction for any purpose, other than the classification of the defendant as a recidivist.

For 38 years it has been clear that ARD is not a conviction. Defendants who enter the ARD program do not plead guilty. They apply to participate in the ARD program, admission is at the discretion of the district attorney. Once an applicant successfully completes the program he can apply for the expungement of their record.

Chichkin and Roche appealed their convictions to the Superior Court arguing the enhancement of their sentence based on a conviction for DUI within 10 years of a prior ARD is unconstitutional.

Relying on Alleyne v. United States, 570 U.S. 99 (2013) the appellants argued that in order to apply a mandatory minimum—without a trial or guilty plea on the prior offense—the commonwealth must prove the prior DUI beyond a reasonable doubt.

Allen Ryan Alleyne robbed a convenience store manager in Virginia. He was convicted of robbery and firearm possession by the U.S. District Court for the Eastern District of Virginia.

At the time, carrying a firearm during a violent crime carried a mandatory minimum penalty of five years. If the defendant was found to have “brandished” the firearm during the crime the mandatory minimum would increase to seven years. The judge, not the jury, determined at sentencing that Alleyne had “probably” brandished the firearm during the robbery, and imposed the seven-year mandatory minimum.

Alleyne’s case made its way to the U.S. Supreme Court. Justice Clarence Thomas wrote the opinion for a 5-4 majority. The court held that the Sixth Amendment guarantees the accused a right to a trial by a fair and impartial jury, which can only be accomplished if all of the facts that are elements of the crime are presented to the jury. If an element of the crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt.

Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) wherein the high court ruled criminal sentences cannot be enhanced above the limits provided by statute unless the jury finds beyond a reasonable doubt the existence of the specific aggravating factors giving rise to the enhancement.

Prior to Apprendi and Alleyne it was common in Pennsylvania drug prosecutions to enhance penalties without proving beyond a reasonable doubt the elements necessary to increase the sentence. For instance, the one-year enhancement for selling drugs within 1,000 feet of a school was determined by a judge not a jury. Having possession of a gun during a drug transaction or enhancing a sentence based on the volume of drugs were typically not proven beyond a reasonable doubt.

In 2014, the Superior Court ruled in Commonwealth v. Newman, 99 A.3d 86 (2014) applying sentence enhancements or imposing mandatory minimums without a jury finding was unconstitutional. In 2017, the Pennsylvania Supreme Court in Commonwealth v. Hopkins, 164 A.3d 1133 (2017), found the “1,000 feet of a school enhancement” unconstitutional. In order to enhance or impose a mandatory sentence, the trier of fact must make a finding beyond a reasonable doubt that the defendant committed the conduct that increased the penalty.

As a result, a number of mandatory minimum sentencing statutes have been struck down, because they allowed judges to make findings by a preponderance of the evidence instead of requiring the elements be found by a jury beyond a reasonable doubt.

The Chichkin and Roche opinion authored by Judge Daniel D. McCaffery analogized the Apprendi and Alleyne decisions—which struck down mandatory minimum sentences—to 75 Pa.C.S. Section 3806 that allowed for a defendant to receive an increased DUI sentence for a second or subsequent DUI despite no finding of guilt on the first DUI.

There was an exception carved out for prior convictions in the holdings in Apprendi and Alleyne. A prior conviction stood for itself and did not have to be proven beyond a reasonable doubt when used to enhance a subsequent sentence. However, ARD is not a prior conviction.

McCaffrey wrote, “We conclude the appellant’s acceptances of ARD cannot be categorized as ‘prior convictions’ exempt from the holding of Apprendi and Alleyne.”

Following this reasoning it is unconstitutional to apply heightened DUI penalties to individuals whose prior cases have not been subject to an admission or a verdict of guilt following trial. The Superior Court further reasoned that the purpose of the ARD program is not to convict the defendant but rather offer rehabilitation, treatment and a clean start. Therefore, the mere acceptance of ARD is not the same as a conviction.

In Chichkin and Roche, “The commonwealth seeks to label appellants as ‘recidivist drunk drivers’ based solely on their prior acceptances of ARD.”

McCaffery concluded, “75 Pa.C.S. Section 3806 (a), which defines a prior acceptance of ARD in a DUI case as a ‘prior offense’ for DUI sentencing enhancement purposes, offends the due process clause and is therefore unconstitutional.”

As a result, what was once a second offense is now a “second-first offense” for purposes of DUI sentencing. That alone will have a significant impact on those who come before the court after re-offending. In addition, for those who have already come before the court and have been sentenced as recidivist this decision may open the door to post-conviction relief. Expect a spike in petitions from those sentenced on second, third or subsequent DUI offenses who remain in jail, on parole or serving a term of probation.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of The Executioner’s Toll, 2010. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Pennsylvania Must End Suspicionless Traffic Stops

Matthew T. Mangino

The Legal Intelligencer

March 5, 2020

Thirty years ago, the U.S. Supreme Court determined that a suspicionless investigatory intrusion on a motorist was justified based on the public’s interest in reducing driving under the influence (DUI). The high court was considering the constitutionality of sobriety check points when it decided Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).

In a 6-3 decision, the court held that sobriety check points did not violate the Fourth Amendment. The court noted that “no one can seriously dispute the magnitude of the drunken driving problem or the states’ interest in eradicating it.” The court then found that “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight.”

In Pennsylvania, a sobriety check point is “a well-marked, stationary roadblock conducted by the police for several hours at a time.” In Commonwealth v. Beaman, 880 A.2d 578 (2005) the Pennsylvania Supreme Court found, “DUI roadblocks constitute a reasonable means of advancing the vital public interest in reducing drunk driving deaths and injuries, and that they only involve a modest intrusion on the privacy and liberty of motorists. Accordingly, the court has found that suspicionless stops at such roadblocks are constitutionally reasonable.”

The legislature provided statutory authority for sobriety check points at 75 Pa.C.S.A. 6308 (b). The statute provides, “Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”

The determination of the constitutionality of a checkpoint in Pennsylvania involves balancing the extent of intrusion against the promotion of the legitimate government interest in public safety.

Sobriety check points permit a police officer to evaluate the operator of a motor vehicle for intoxication without having reasonable suspicion or probable cause to make a traffic stop. The police can make a lawful arrest without having any other reason for briefly detaining the operator but some statistics, a public disclosure and a prominent road block.

What the law does not permit are random suspicionless motor vehicle stops to enforce safety on Pennsylvania roadways. Conducting a motor vehicle stop without reasonable suspicion or probable cause is violation under Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments to the U.S. Constitution.

Section 6308 (b) cited above was amended in 2004. The change involved the replacement of the phrase “articulable and reasonable ground to suspect” with “reasonable suspicion,” thereby lowering the statutory level of suspicion necessary for a police officer to execute a lawful traffic stop.

Although the Fourth Amendment has been interpreted as requiring probable cause to effectuate a lawful arrest, the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968), created a new level of suspicion somewhere between a hunch and probable cause. In Terry, the court concluded that police may briefly detain an individual for purposes of investigation in circumstances where specific and articulable grounds exist to reasonably suspect that criminal activity is in progress.

Terry’s reasonable suspicion standard, as well as probable cause, requires a police officer to articulate the reason she conducted a motor vehicle stop.

Whether it’s a brief investigatory stop or a stop to effectuate the issuance of a citation for a motor vehicle violation—no one questions that the law requires an articulable reason for the stop.

With that in mind, it does in fact appear that Pennsylvania law permits a police officer to pull over a vehicle for any reason, or no reason at all, investigate the driver for intoxication, conduct sobriety tests and ask that driver to submit to a blood test or breathalyzer. If that driver refuses, her license is suspended.

A license suspension is a civil matter—but was it ever contemplated that a police officer could randomly pull over drivers, conclude they may be intoxicated and have imposed a “penalty” for failing to cooperate.

In  Zwibel v. Department of Transportation, Bureau of Driver Licensing, 832 A.2d 599, (Pa.Cmwlth.2003), the Commonwealth Court established what the Department of Transportation must prove at a statutory appeal hearing. First, that the licensee was arrested for driving while under the influence by a police officer who had reasonable grounds to believe that the licensee was operating a vehicle while under the influence of alcohol or a controlled substance; two, the driver was asked to submit to a chemical test; three, he refused; and four, he was warned that a refusal would result in a license suspension.

In a driver’s license appeal hearing an unlawful arrest in a criminal proceeding is not admissible. The Pennsylvania Supreme Court held in Department of Transportation v. Wysocki, 535 A.2d 77 (Pa. 1987), “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, such a suspension will not be allowed if the officer’s request was not supported by reasonable grounds for the officer to have believed that the person was under the influence of alcohol.”

The standard of reasonable grounds under the Implied Consent Law is not very demanding, and does not rise to the level of probable cause required for a criminal prosecution. Rather, the test for reasonable grounds is whether a person in the position of a police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that a motorist was operating a vehicle while under the influence of alcohol.

To determine whether the officer had reasonable grounds to conclude that the licensee was operating a vehicle under the influence, a court must consider the totality of the circumstances.

In Sisinni v. Department of Transportation Bureau of Driver Licensing, 31 A.3d 1254 (Pa. Cmwlth. 2011), the Commonwealth Court determined there was no set list of behaviors or conditions that a person must exhibit for an officer to have reasonable grounds for making an arrest. However, the court provides a series of examples that relate to outward manifestations of intoxication such as staggering, swaying, falling down, belligerent, slurred speech, uncooperative behavior and the odor of alcohol. None of the examples relate to the operation of a vehicle or reasonable grounds for stopping a motor vehicle.

In Kachurak v. Department of Transportation Bureau of Driver Licensing, 913 A.2d 982 (Pa. Cmwlth. 2006), the Commonwealth Court determined, “It is well settled that “’ an officer may acquire reasonable grounds to believe that a licensee was driving under the influence of alcohol at any time during the course of interaction between the officer and the licensee.”’

Wysocki does not hold that reasonable grounds must be formed prior to the traffic stop as a prerequisite to a valid license suspension. The case law consistently supports that reasonable grounds are determined by interacting with the vehicle operator. As a result, there are no restrictions or limitations on the basis for stopping a vehicle.

The question is, how was the interaction brought about? Did the police officer have a basis to bring about the interaction? Obviously the officer cannot engage the individual while both the individual and the officer’s vehicle are moving. The officer must bring the vehicle to a stop to engage the driver or occupants.

What is the basis for stopping the vehicle? Should a police officer be required to articulate reasonable grounds for stopping the vehicle? It doesn’t have to be probable cause or reasonable suspicion—both criminal degrees of suspicion—but the reason for the stop should be part of the equation.

The reason for the stop must be more than arbitrary or random. Otherwise, as Justice Nicholas P. Papadakos noted in a dissent in Wysocki, “a police officer can stop anyone, anyplace, anytime of the day or night for no articulable reason at all, and then form a reasonable” ground that the vehicle operator was driving while intoxicated.

That is not justice, and the Pennsylvania Supreme Court needs to address the matter posthaste.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of “The Executioner’s Toll,” 2010. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino). Contact him via email at matthewmangino@aol.com.

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DUI prevention tool causes distracted driving

While ignition interlock devices have prevented thousands of drunken-driving crashes, they have also caused them by distracting drivers, The New York Times reports. Randomly timed checks, known as rolling retests, can cause even sober drivers to crash, a distracted-driving threat that has drawn little scrutiny. A review of accident reports and lawsuits turned up dozens of examples of collisions in which the devices played a role.

According to The Crime Report, nearly 350,000 people in the United States have interlocks, according to the latest estimate in an annual industry report, up from 133,000 a decade earlier. Thirty-four states — including, this month, New Jersey — require people with drunken-driving convictions to install the devices. Other states are considering similar laws and two United States senators are pushing legislation that would require all new cars to include a version of the technology by 2024. The National Highway Traffic Safety Administration said it had not studied the issue of distracted driving and interlocks. States that mandate them have not, either.

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Prior DUI arrests related to higher risk of gun violence

A California study links convictions for driving under the influence of alcohol to a higher risk of a violent crime committed with firearms, reported The Crime Report.

The study, published in the Sept. 30 issue of JAMA (Journal of the American Medical Association) Internal Medicine, found that 9 percent of legal handgun purchasers with previous DUI convictions were arrested for murder, rape, robbery or aggravated assault.

“This is compared to 2 percent of purchasers with no prior criminal history at the time of purchase,” wrote Rose M. C. Kagawa, assistant professor of emergency medicine at the University of California Davis, and lead author of the study.

“When we compared purchasers who only had DUI convictions and no other arrests or convictions with those who had no criminal history, a DUI conviction was associated with more than double the risk of future arrest for a violent crime.”

Kagawa and her team of researchers looked at criminal records of 78,878 California handgun purchasers between 2001 and 2013, using the California Department of Justice Dealer’s Record of Sale database.

The research built on earlier studies by the UC Davis Violence Prevention Program which associated risky alcohol use with arrests for violent crimes.

“Alcohol use is a well-established risk factor for firearm violence,” said Kagawa, “Our study suggests that handgun purchasers with a DUI conviction on their record at the time of purchase have a higher incidence of future violence and crime compared to purchasers without DUI convictions.”

Lending further weight to its conclusions, the study cited an earlier meta-analysis of research involving homicide offenders which indicated that an estimated 34 percent of people who committed homicide with a firearm were under the influence of alcohol at the time of the crime.

The researchers noted that the federal government and many states restrict the purchase and possession of firearms by members of high-risk groups, including persons convicted of felonies, domestic violence misdemeanors, and other violent misdemeanors.

“Comparable benefits may arise from similar restrictions on persons convicted of DUI crimes,” they wrote.
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Pitt leading way in developing marijuana breath detector

The alcohol Breathalyzer came to life slowly, over the course of decades.

From the 1930s through the 1960s, scientists, lawmakers, police and the public quarreled over the veracity of the numbers spit out by the device, the appropriate legal limit for drivers and whether they could trust a machine over a cop's testimony.

Today, the same debate is playing out over cannabis, reports NPR.

As 33 states and the District of Columbia have legalized pot in some form, Breathalyzer-type devices that could theoretically aid police enforcement have begun appearing in various stages of development. But legal experts and scientists say there's a long way to go before those devices can actually detect a driver's impairment.

Last week, a team of researchers at the University of Pittsburgh announced the latest tool to detect THC — delta-9-tetrahydrocannabinol, the main psychoactive component in pot — in breath.

The university's Star Lab, led by Alexander Star, began developing the box-shaped device in 2016, in the midst of a wave of pot legalization across the United States. Star, a chemistry professor, partnered with Ervin Sejdic, a professor of electrical and computer engineering who's also at the university, to build the prototype.

The device uses carbon nanotubes, which are 1/100,000 the size of human hair, to recognize the presence of THC, even when other substances are in the breath, such as alcohol. The THC molecule binds to the surface of the tubes, altering their electrical properties.

"Nanotechnology sensors can detect THC at levels comparable to or better than mass spectrometry, which is considered the gold standard for THC detection," says the news release from the university's Swanson School of Engineering.

And the device is nearly ready for mass production.

"If we have a suitable industrial partner," Star told Here & Now's Jeremy Hobson, "then the device by itself would be quite ready in a few months."

The remaining steps, he says, include testing the prototype and correlating the device's output to the driver's level of impairment.

With alcohol, you can figure out impairment by measuring the amount of alcohol in someone's blood, which you can determine from a Breathalyzer using the "blood to breath," or "partition," ratio. Make that translation from breath to blood to brain, and you have a relatively accurate sense of how drunk someone is.

"So when it comes to these marijuana breath tests, that's the million-dollar question right now," says Chris Halsor, a Denver lawyer who focuses on issues around legal cannabis.

Is there a ratio that links the amount of THC in someone's breath to the amount in the person's blood — and then to exactly how stoned that person is?

No, says Sejdic. The correlation "is basically missing, from a scientific point of view."

To read more CLICK HERE

Proposed DUI law would increase penalties for Pennsylvania repeat offenders

Proposed legislation in Pennsylvania that would increase penalties for repeat drunk drivers is named after a Delaware County woman who was killed earlier this year by a man on his sixth DUI, reported KYW-AM. 

State Sen. Tom Killion from Chester and Delaware counties says Deana’s Law would target repeat drunk drivers with high blood alcohol content. 

“To keep those with multiple DUIs from endangering the lives of those on the roadways," Killion said. "And that’s the point here. We’re going for the worst of the worst.”

The legislation is named after Deana Eckman, who was killed by David Strowhauer. He was paroled about five months before the deadly crash, serving time for a fifth DUI. 

It would require certain repeat DUI offenders to wear an ankle bracelet that can tell if there’s alcohol in the system, doubles the time a breathalyzer device is required to start a car, and calls for the vehicle driven by a repeat offender to be impounded.

To read more CLICK HERE

Pa. Supreme Court: Possession of Gun Alone Not Indicia of Dangerousness

Matthew T. Mangino

The Legal Intelligencer

July 11, 2019

Michael Hicks walked into an Allentown convenience store at 3 a.m. on a summer morning in 2014. He had a handgun in his waistband and a license to carry a concealed weapon. That didn’t prevent the police from stopping Hicks’ vehicle before he left the parking lot.

Things got worse for Hicks. Once confronted by the police the officer smelled alcohol and found marijuana in his pocket.

How did Hicks, lawfully carrying a firearm, end up arrested for DUI and possession of marijuana?

The police relied on a 50-year-old landmark U.S. Supreme Court decision and a 1991 ruling from the Pennsylvania Superior Court.

Prior to Terry v. Ohio, 392 U.S. 1 (1968) the concept of an investigatory stop was pretty straightforward. A police officer could act on a hunch and attempt to voluntarily engage an individual. However, once that encounter became involuntary the suspect was considered seized and the police needed probable cause to detain the suspect.

That all changed after Terry. The Supreme Court created a degree of suspicion somewhere between a hunch and probable cause—now known as reasonable suspicion. The Supreme Court authorized police officers lacking probable cause for an arrest to conduct a frisk for weapons if the officer believed the individual was dangerous.

On Halloween in 1963, a veteran Cleveland detective saw two men standing on a downtown street acting in a way that seemed suspicious to the detective. The detective observed the two men, one of whom was John Terry, take turns walking back and forth, in front of a store window. After each trip the two men would talk. The detective recalled that the men repeated this ritual at least a half dozen times. A third man came along as the two men spoke.

The detective approached the three, suspecting they were planning to rob the store. He identified himself as a police officer, and asked their names. Unsatisfied with the responses, the detective spun Terry around, patted down the outside of his clothing, and felt a pistol in his overcoat pocket.

Terry and another man were subsequently charged with carrying a concealed weapon and both filed a motion to suppress the guns as the fruits of an unlawful search.

The Supreme Court found that the detective “seized” Terry and subjected him to a “search” within the meaning of the Fourth Amendment. But the Fourth Amendment protects against unreasonable searches and seizures, so the court next had to determine whether Terry’s seizure and search were “reasonable.”

The events the detective witnessed made it reasonable for him to believe that either Terry or his companions were armed. “The record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.”

The court found that the search was reasonable, and concluded that the gun found on Terry was properly admitted into evidence.

Over time the reasonable suspicion standard from Terry evolved from an investigatory tool to a crime-fighting tool through the advent of “stop and frisk.”

In the early 1980s, if a police officer had reasonable suspicion of a possible crime, she had the authority to stop an individual and ask questions. Reasonable suspicion could be established by a neighborhood’s crime rate or even the time of day or night. For her safety, and the safety of others, the officer could pat-down the individual—if a gun was found the inquiry could continue or an arrest, based on probable cause, could ensue.

If, based on the subject’s answers, the suspicion level did not escalate to probable cause for an arrest the person would be released immediately.

Stop and frisk became popular in New York City. Opponents of stop and frisk argued that the police stops were discriminatory because they did not reflect the city’s overall census numbers.

Supporters argued there were 2,245 murders in New York City in 1990. By 2012, the number had dropped to 414, the lowest since police began keeping records.

Finally, in 2012, U.S. District Judge Shira Scheindlin put a stop to it. She called the city’s stop-and-frisk tactics “indirect racial profiling.” The police used the tactic more than 4.4 million times between 2004 and 2012. The vast majority of the stops were of African Americans, 52%, and Hispanics, 31%. And 88% of stops resulted in no further law enforcement action.

Stop and frisk is not unconstitutional. There is no question that Pennsylvania law provides that an individual may be stopped, briefly detained and frisked for investigatory purposes if the police observe unusual and suspicious conduct on the part of the individual seized.

That brings us closer to Hicks’ dilemma.

In 1989, Charles Robinson Sr., was observed by a Pittsburgh police officer bending over into a van with a gun sticking out of the back of his pants.

Because of the presence of children in the area, the officer decided to confer with her partner. The officers returned and stopped Robinson’s van.

After Robinson stepped out of the van, the officer informed him that she had seen a gun in the back of his pants. She performed a quick pat down of Robinson and discovered a holster inside the back of his shorts.

The officer then looked into the van and saw a gun on the floor beside the driver’s side seat with deep scratches through the serial number.

In Commonwealth v. Robinson, 600 A.2d 957 (1991) the Pennsylvania Superior Court found that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. The court found that the observation of a weapon in and of itself was enough to trigger reasonable suspicion—and permit a police officer to temporarily detain that individual.

In Commonwealth v. Hicks, No. 56 MAP 2017, decided May 31, the Pennsylvania Supreme Court overturned Robinson, a 28-year-old precedent.

Hicks was armed and had a license to carry a concealed weapon. Pennsylvania Supreme Court Justice David Wecht writing for the majority contends, “A police officer in the field naturally relies upon his or her common sense when assessing criminal activity. When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law. Absent some other circumstances giving rise to a suspicion of criminality, a seizure upon that basis alone is unreasonable.”

In overturning Robinson the Pennsylvania Supreme Court said evidence from Hicks’ detention should have been suppressed. Wecht wrote, Robinson “contravenes the requirements of the Terry doctrine and thus subverts the fundamental protections of the Fourth Amendment.”   Wecht concludes, “The Superior Court patently has erred in concluding that the ‘possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous.’”

Some people are barred from gun ownership, and a license is required for a concealed firearm, the court said. But “there is no way to ascertain an individual’s licensing status, or status as a prohibited person, merely by his outward appearance.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George/ His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

 To visit the column CLICK HERE

SCOTUS permits warrantless blood test for unconscious suspect of DUI

The US Supreme Court ruled Thursday in Mitchell v. Wisconsin, a case surrounding the administration of a warrantless blood alcohol concentration (BAC) test to Mitchell who was unconscious at the time of the test, reported Jurist.

Justice Samuel Alito wrote that in such circumstances where the driver is unconscious, the court holds that the “exigent circumstances rule almost always permits a blood test without a warrant.”

In reaching this conclusion the court discusses case precedent, looking to Schmerber and McNeely to determine where this case sits on the exigency spectrum.

McNeely was about the minimum degree of urgency common to all drunk driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same. Mitchell’s stupor and eventual unconsciousness also deprived officials of a reasonable opportunity to administer a breath test.

The court noted that there are exceptions to the warrant requirement of the Fourth Amendment, and under the exception for exigent circumstances, a warrantless search is allowed when “there is compelling need for official action and no time to secure a warrant.”

To determine whether exigency exists where a suspected drunk driver is unconscious, the court looked at two elements: whether the BAC evidence is dissipating, and when some “other factors creates pressing health, safety, or law enforcement needs which would take priority over an application for a warrant.”

Thus, when a driver is unconscious, the court imposed the general rule that a warrant is not needed.

Justice Clarence Thomas wrote separately, concurring with the judgement, but arguing that the court should apply a per se rule that he had proposed in McNeely—that “the natural metabolization of alcohol in the blood stream creates an exigency once police have probable cause to believe the driver is drunk regardless of whether the driver is conscious.”

Justice Sonia Sotomayor was joined by Justices Ruth Bader Ginsburg and Elena Kagan in dissent, arguing that under the Fourth Amendment police officers must always seek to get a warrant before ordering a blood draw. “When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant.”

Sotomayor argued that warrants serve as a “check against searches that violate the Fourth Amendment by ensuring that a police officer is not made the sole interpreter of the Constitution’s protections.” Further, the dissent noted that a blood draw provides access to information beyond the BAC level, and as such is an invasion of bodily integrity which “disturbs an individual’s expectations of privacy.”

Additionally, the dissent argued that precedent cases Schmerber and McNeely “establish that there is no categorical exigency exception for blood draws, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case.”

The dissent also noted that the exigency exception was not an argument that Wisconsin presented at any point throughout the proceedings of this case. Rather, Wisconsin had conceded that the exigency exception does not apply to this case and would not justify the warrantless blood draw. Sotomayor pointed out that the Supreme Court is a court of review, and stated that the court “is not in the business of volunteering new rationales that were neither raised nor addressed below.”

Justice Neil Gorsuch wrote separately to dissent, arguing that the case should have been dismissed and the question of the exigent exception and circumstances which would create such an exception should be considered in another case that presents such circumstances.

To read more CLICK HERE

DUI check point declared unlawful in Pennsylvania

They are called sobriety checkpoints.

And many local police forces team up to set them up, like the West Hills DUI Task Force.

“A group of municipalities band together and hold a checkpoint in one specific municipality and pull over all of the motorists, typically driving through the municipality that evening,” Michael Sherman, a DUI defense attorney, told KDKA political editor Jon Delano on Monday.

That’s what happened to Molly Hlubin on her way home from the old Star Lake, now Key Bank Pavilion, in 2013.

But in a 35-page opinion, the state Supreme Court has tossed out her arrest and conviction.

Why?

Because the task force was never authorized by elected officials.

Police officers from 16 municipalities were part of this West Hills DUI Task Force along Steubenville Pike in Robinson, but none of those 16 municipalities had elected officials voting and approving an ordinance authorizing the task force.

And that, says the state Supreme Court, is a problem.

Sherman who represented Hlubin says police cannot set up multi-jurisdictional task forces to arrest people without elected officials approving the mission.

“The elected officials didn’t have any input into the decision,” said Sherman.

There are similar DUI task forces throughout the region.

“We are passionate about getting impaired drivers off the roads,” said Captain Douglas Ogden from the Moon Township Police who ran the checkpoint that stopped Hlubin in Robinson. “Checkpoints are the most effective way of contacting large numbers of impaired drivers and reinforcing public awareness that we’re doing DUI enforcement.”

But this decision could impact other DUI cases now being prosecuted.

“There was no authority to pull the motorist over in the first place,” says Sherman.

Delano: “Do you think this affects hundreds of people?”
Sherman: “It could be thousands.”

If the DUI arrest was made as part of a recent multi-community task force, it could be tossed out, says Sherman.

Of course, it may not take long before the municipalities pass the appropriate local ordinances allowing the task forces.

After all, they have been effective.

The West Hills DUI Task Force alone has arrested 700 drunk or drugged drivers in a 15-year period.

In the meantime, watch for some local communities to step up their own roving DUI patrols within their own municipal boundaries.

That’s perfectly legal.

To read more CLICK HERE

Marijuana breathalyzer getting closer to implementation

One California company claims it has made a major breakthrough in creating what some thought of as a unicorn: a marijuana breathalyzer, reported NPR.

"We are trying to make the establishment of impairment around marijuana rational and to balance fairness and safety," says Hound Labs CEO Mike Lynn in his downtown Oakland, Calif., office.

In a freshly pressed dress shirt and short hair, it's clear Lynn is no stoner inventor with a pipe dream. The former venture capitalist is a practicing emergency room trauma physician in Oakland and an active SWAT team deputy reserve sheriff for Alameda County, Calif. He knows first hand the devastating effects drugged and drunk driving can have.

He picks up a small plastic box. "This is a disposable cartridge. And there's a whole bunch of science in this cartridge," Lynn says as he slips it into the device about the size of a large mobile phone. A small plastic tube sticks out of one end.

He starts to blow into the tube for the required thirty seconds.

Indicator bars start to show whether the machine detects any THC in his breath. THC is the psychoactive component in pot that gets you high.

Hound Labs says its device can accurately detect whether a person has smoked pot in the last two hours, a window many consider the peak impairment time frame. "When you find THC in breath, you can be pretty darn sure that somebody smoked pot in the last couple of hours," Lynn says. "And we don't want to have people driving during that time period or, frankly, at a work site in a construction zone."

Lynn then slides the cartridge into a small base station the size of a laptop, used to protect against cold or hot extremes. The breathalyzer needs a consistent temperature to have consistent results.

To read more CLICK HERE

PA legislature looking to toughen DUI laws for repeat offenders

Pennsylvania’s legislature is looking to toughen DUI laws. State Sen. John Rafferty, R-Montgomery, is sponsoring legislation that would make it tougher for repeat offenders. It is currently awaiting consideration in the House Judiciary Committee, wrote Chris and Susan Demko in the Harrisburg Patriot-News. The Demko's lost a daughter to a drunk driver.

In short, Rafferty's bill would:

Target repeat DUI offenders who continue to drive impaired. Pennsylvania is one of only 4 states that do not classify repeat DUI offenses as a felony, regardless of an offender's prior DUI history. Rafferty's bill (SB961) would create a felony offense for DUI offenders committing their 4th DUI offense, which will have the effect of longer sentences, thereby keeping the worst offenders off the road. There are hundreds of individuals annually arrested for a 4th or greater DUI offense.

Increase penalties for repeat DUI offenders that injure and kill while driving impaired. Today a repeat DUI offender is subject to no more than a 3-year minimum sentence for Homicide by Vehicle while DUI, which is same minimum sentence for a first time DUI offender. Rafferty's bill would increase the minimum sentence to 5 years if the offender was convicted of a prior DUI, and to 7 years if the offender was convicted of 2 or more prior DUIs.

Target individuals who drive with a DUI-related suspended license. Many individuals ignore the suspension and the option to drive legally via an ignition interlock/occupational license. Studies indicate that this high-risk group is responsible for up to 20 percent of fatal DUI crashes. Currently, these offenders are only subject to a $500 fine/60-day sentence (generally served at home), regardless of prior offenses. Rafferty's bill would increase the length of sentence and fine for 2nd and 3rd offense.

To read more CLICK HERE

Detecting those who drive while impaired by marijuana

With more and more states legalizing marijuana there is concern over detecting those who drive while impaired by marijuana.  New research by New York University Marron Institute of Urban Management and BOTEC Analysis, LLC "Driving While Stoned: Issues and Policy Options" examines flaws in the current system of detection.
The paper's abstract provides: 

THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.) Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.
Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream—a per se standard—as opposed to actual impairment. That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.
Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication. A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment. In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.
None of those things is true for cannabis. A breath test remains to be developed. Oral-fluid testing can demonstrate recent use but not the level of impairment. A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes. Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy. The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs. Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired. That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.

For access to the research CLICK HERE

Mangino on WFMJ-TV21 Weekend Today

Watch my interview about OVI/DUI, Social Host and Dram Shop Laws on WFMJ-TV21 Weekend Today.

To watch the interview CLICK HERE

Harsher, new DUI law goes into effect in Pennsylvania

A new law went into effect on August 25, 2017 aiming to cut down on drunk driving, reported WITF in Harrisburg.

It requires first-time offenders to have breathalyzers installed in their cars--something 48 other states already do.

Car breathalyzers--officially called Ignition Interlock Systems--require drivers to blow into a device to start their vehicle. If the device detects any alcohol, the car won't start, and it'll also register the attempt.

The systems have been proven to substantially cut down on drunk driving. But under previous Pennsylvania laws, only repeat offenders have been required to install them.

State Senator Scott Martin, a Lancaster County Republican and proponent of stronger impaired driving laws, said that policy was badly out of date.

"It's very symbolic of where Pennsylvania is lagging in terms of how it looks at repeat offenders and DUI laws in general," he said at a press conference. "Something's not getting through, and I believe that this place is part of the problem."

The new law, Act 33 of 2016, stipulates that any driver who's pulled over with a blood alcohol level of .10, or who refuses to be tested for alcohol, has to install an Ignition Interlock System in their car.

Offenders must pay for the devices, which cost between $900 and $1,300 a year. The law also establishes a new class of license that denotes a driver's status as a DUI offender.

Berks County Senator John Rafferty, a Republican who sponsored the measure, said this is just one part of a larger effort to crack down in drunk drivers.

"We've been coddling them for too long," he said. "It's time to recognize that they have problems. It's time to recognize that they're a danger on the highway to other individuals--innocent individuals--and to themselves."

Rafferty and Martin also want to instate mandatory minimum sentences for drunk drivers, and harsher penalties for deadly DUI accidents. 

To read more CLICK HERE

PLW: U.S. Supreme Court Tackles Series of Criminal Controversies

Matthew T. Mangino

The Pennsylvania Law Weekly

July 15, 2016

The momentum for criminal justice reform, which was so promising in Congress early in the year, has fizzled out.

The Sentencing and Reform Act was to update federal mandatory minimum sentences, among other things.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, told RealClearPolitics.com, "I don't see how it gets done before" July 15, referencing the day the senators depart from Washington and won't return until after Labor Day. "It's a real big disappointment to me." After Labor Day there is little chance that anything will get done with the election looming.

As a result, this year any criminal justice "reform" comes the old-fashioned way—through the U.S. Supreme Court. This spring, the court released a flurry of criminal justice decisions, somewhat obscured by titillating decisions on abortion, immigration and affirmative action.

The high court did delve into a couple of jury-related questions, a couple Fourth Amendment cases, sentencing and a corruption decision.

This is by no means an exhaustive list of the court's treatment of criminal justice issues, but an examination of a handful of decisions that might be enlightening.

In Foster v. Chatman, 578 U.S. (2016), decided on May 23, the court reversed a capital murder conviction, finding that the Georgia prosecutors' "two peremptory strikes on the basis of race are two more than the Constitution allows."

Timothy Foster was 18 years old when he was arrested for the murder of a 79-year-old widow and former elementary school teacher. Foster is African-American, while the victim was white. Turned in by his girlfriend, Foster admitted to the crime. But there were questions about his limited-intellectual capacity and whether he had an accomplice.

When the case went to trial all of the black members of the jury pool were removed. Foster's trial came only a year after the court's landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson was intended to eliminate racial bias in jury selection.

The 1986 ruling set up a three-step process for testing complaints about race-based use of peremptory strikes.

First, the accused has to show membership in a specific racial group. Second, prosecutors need to offer nonracial reasons for removing the juror. Third, the judge must decide whether, taking everything into consideration, the defense proved a racial bias.

During jury selection in Foster's case, one black juror was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.

In 2006, nearly 20 years after his conviction, Foster's lawyers obtained the prosecution team's jury selection notes under the Georgia Open Records Act. The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," "B#2," and "B#3."

The high court granted Foster a new trial.

In Lynch v. Arizona, 578 U.S. ___ (2016), decided May 31, another capital case, the state put the defendant's future dangerousness at issue and acknowledged that his only alternative sentence to death was life imprisonment without parole. The Arizona high court concluded that the defendant had no right to inform the jury of his parole ineligibility. The U.S. Supreme Court disagreed.

In Simmons v. South Carolina, 512 U. S. 154 (1994), a capital defendant's future dangerousness was at issue, and the only sentencing alternative to death available to the jury was life imprisonment without possibility of parole. The court ruled that the due process clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.

A Pennsylvania case was prominently among the high court's decisions this spring. In Williams v. Pennsylvania, 579 U.S. ___ (2016), decided June 9, the court held that due process required that Pennsylvania Supreme Court Chief Justice Ronald Castille recuse himself from the capital defendant's post-conviction challenge where Castille had been the district attorney who gave his official approval to seek the death penalty in the case.

The court stated: "Under the due process clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." It went on to hold that the justice's authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision.

In Utah v. Strieff, 579 U.S. ___ (2016), decided June 20, the defendant was stopped along the street without reasonable suspicion. The defendant complied and the officer relayed the defendant's information to a police dispatcher, who reported that the defendant had an outstanding arrest warrant for a traffic violation. The officer then arrested the defendant pursuant to the warrant. When a search incident to arrest revealed methamphetamine and drug paraphernalia, the defendant was charged and convicted.

The Utah Supreme Court reversed and held that the evidence was inadmissible.

The U.S. Supreme Court reversed. The court began by noting that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."

The court also took up an alcohol-testing incident to an arrest for driving under the influence. In Birchfield v. North Dakota, 579 U.S. ___ (2016), decided June 23, the court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. The court concluded: "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."

The U.S. Supreme Court overturned the political corruption conviction of former Virginia Gov. Robert F. McDonnell.

McDonnell received more than $175,000 in loans and gifts—including a Rolex watch, vacations and partial payment of his daughter's wedding reception from a Richmond businessman.

The gifts did not violate Virginia law, but federal prosecutors alleged that in exchange for the gifts, McDonnell engaged in official acts to arrange meetings for the businessman and hosted a reception at the governor's mansion for a new product launch.

Although Chief Justice John G. Roberts Jr. tried to distance himself from the conduct of McDonnell, his concern was clear—the term "official acts" could cover almost any action a public official takes.

In McDonnell v. United States, 578 U.S. __ (2016), decided June 27, Roberts wrote, "Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time." He continued, "The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm."

In Betterman v. Montana, 578 U.S. __ (2016), decided May 19, the Sixth Amendment's speedy trial guarantee does not apply to the sentencing phase of a criminal prosecution. The defendant argued that the 14-month gap between conviction and sentencing violated his speedy trial right. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the Fifth and Fourteenth amendments.

Finally, for those foolish enough to think that reform could somehow be spurred by the U.S. Supreme Court there is Taylor v. United States, 578 U.S. __ (2016), decided June 20. Instead of limiting the federal government's reach in local criminal matters, the court expanded the reach.

As summarized by Scotusblog.com, Taylor holds that, "Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce 'over which the U.S. has jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."

So much for reform, prosecutors will be further clogging federal prisons with local thugs who prey on local drug dealers. 

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg Garbett Kelly & George. His book "The Executioner's Toll," 2010, was released by McFarland Publishing.

Kentucky Senator seeks immunity from DUI charge

Kentucky state Senator Brandon Smith, arrested this month on a DUI charge, is making an effort to get the charge dismissed based on a 124-year-old law that says lawmakers are "privileged from arrest" during legislative sessions, according to Newsmax.

According to WKYT,  the law provides “The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place."

Smith was arrested Jan. 6, the first day of the legislative session.

Peter Voss, a political science professor,  told Lex 18 News legislative immunity was created because of problems between the crown and parliament. “It's safer to leave the people's elective representative in office voting and representing them, than it is to make it easy to lock them up," Voss said.

Questions have arisen as to whether the law would apply in Smith’s case. Although he was in session during the day, he was arrested on his way home from a friend’s house that night.

"The people who wrote the Constitution in 1891 did not intend to give blanket immunity to all legislators for any acts committed during the legislative session," Assistant Franklin County Attorney David Garnett told Lex 18. “Nobody is above the law."

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