DUI Caselaw

You are here: Home » Practice Areas » DUI » DUI News and Updates 2014-2015 » DUI Caselaw

Driving Under the Influence

Two Hour Rule

Commonwealth v. Segida, 985 A.2d 871 (Pa.2009) 75 Pa.C.S.A. §3802(a)(1) is a “time of driving” offense, however the circumstantial evidence that the motorist drove while he was incapable of safe driving was sufficient to establish guilt beyond a reasonable doubt. The Commonwealth is not required to prove the motorist did not consume alcohol after driving.

Commonwealth v. Wilson, ___ A.3d ___ (Pa.Super. 2014). No requirement that blood be drawn within two hours of driving for prosecution of DUI-drugs. Two hour requirement only applies to blood draws for determining BAC.

Commonwealth v. Teems, 74 A.3d 142 (Pa.Super. 2013). Sufficient evidence, although circumstantial, that blood was drawn within two hours of driving and that defendant was impaired while operating. Defendant’s vehicle was found disabled in a driving lane of interstate 81 at 2:00 AM. Blood draw occurred at 3:00 AM with a result of .143%. Defendant found behind the wheel without hazards on with brake lights illuminated.

Commonwealth v. Grimes, C.P. Lycoming (June 5, 2014). Evidence of BAC admitted for conviction of DUI-highest rate despite being drawn over two hours after the defendant drove. Defendant was found intoxicated in the hospital parking lot and admitted. Evidence indicated that defendant arrived in the lot between 12:05-12:10 however blood was not drawn until 2:10. No alcohol was consumed in the intervening time and the court found the police moved as expeditiously as possible under the circumstances. Any delay was de minimis.

Reasonable Suspicion and Probable Cause (75 Pa.C.S.A. §6308)

Commonwealth v. Lowe, ___ A.3d ___ (Pa. 2014). Petition for Allowance of Appeal granted on the following issue, “Whether the Superior Court erred in reversing the Suppression Court’s finding that erratic driving, combined with several behavioral factors recognized by the officer through his training and experience as evidence of [d]rug [i]ntoxication, constituted reasonable suspicion to conduct field sobriety testing[?]”. Superior Court ordered suppression where officer observed antsy appearance and nervous behavior and therefore asked defendant to exit and perform SFSTs.

Commonwealth v. Weaver, 76 A.3d 562 (Pa.Super. 2013) HGN, while not admissible at trial for substantive evidence of guilt for DUI, is permitted for probable cause to arrest. This, plus other evidence (unsafe driving, slow/sluggish reactions) provided sufficient evidence for probable cause to arrest. Defendant’s right to confront his accuser not violated as Commonwealth called necessary witnesses. Commonwealth required to pay portion of costs of witnesses where new evidence was presented necessitating a defense continuance. PA Supreme Court Affirmed, December 1, 2014.

Commonwealth v. Enick, 70 A.3d 843 (Pa.Super. 2013). Stop of vehicle proper after officer, while driving in oncoming lane of travel, observed the defendant’s vehicle cross over the double yellow line for 2-3 seconds as the defendant violated and was cited for 3301(a) which requires that a vehicle be driven on the right half of the roadway. Exceptions under that section not implicated in this case. Crossing of line not a minor violation as the presence of oncoming traffic posed a safety hazard.

Commonwealth v. Farnan, 55 A.3d 113 (Pa.Super. 2013). Stop of vehicle based on information regarding suspended license that was gained approximately 30 days before stop was not improper. Information provided reasonable suspicion which officer could further investigate.

Commonwealth v. Simmen, 58 A.3d 811 (Pa.Super.2012). No warrant required to enter driveway to view vehicle where vehicle no in curtilage of home but in an area accessible to the public. Probable cause to arrest existed where, after tracking car from scene of hit and run, defendant found with signs of intoxication and admitted to drinking and driving the car.

Commonwealth v. James, C.P. Berks (July 9, 2014). No grounds to stop a bicyclist, later charged with DUI where only evidence of unsafe highway usage was nearly being stuck by trooper’s vehicle while riding, legally with required lights/reflectors, on berm. Evidence from video did not substantiate claims that cyclist was operating erratically.

Commonwealth v. Brodhead, C.P. Berks (July 11, 2014). Suppression granted where defendant observed cross the dotted white lines and fog lines. No violation of 3309 as minor deviations, where safe, permitted. No other traffic located on highway. No other erratic driving observed.

Commonwealth v. Vang, C.P. Berks (July 7, 2014). Suppression granted where defendant’s vehicle was observed touching the yellow line four times within a one-mile distance. No other erratic driving or traffic violations observed.

Commonwealth v. Kaufman, C.P. Berks (October 13, 2013). No grounds to stop vehicle seen leaving house after police received dispatch of possible domestic dispute. No information was provided to the police linking the van or it’s driver to criminal activity and no violations of the vehicle code were observed. All evidence leading to DUI arrest were fruit of the poisonous tree.

Commonwealth v. Fitting, 62. Cumb. 175 (April 24, 2013). Stop of vehicle proper where officer makes observations of violations independent from initial tip from an anonymous source. Testimony that vehicle, although not discernable on recording from in-car camera, crossed into opposing lane with oncoming traffic present provided officer probable cause to stop.

Commonwealth v. Youch, 62 Cumb. 95 (Jan. 25, 2013). Motion to suppress granted after police observed defendant adjust speed, drift onto the fog line and touch the double yellow line. No indication length of time vehicle encountered the lines and no evasive action taken by other motorists.

Commonwealth v. Barnes, C.P. Monroe (December 5, 2012). No reasonable suspicion to perform investigatory detention where officer, at 3:00 AM, observed defendant’s vehicle pull off roadway and extinguish lights. Officer, suspicious that car pulled between two auto dealerships, turned on overhead lights to investigate. See also Commonwealth v. Hill, 874 A.2d 1214 (Pa.Super. 2005) and Commonwealth v. Kendall, 976 A.2d 503 (Pa. Super 2009).

Commonwealth v. Wells, C.P. Monroe (November 1, 2012). Probable cause to stop the defendant’s vehicle for violation of 75-3309 where vehicle observed crossing the center line 2-3 times with occasional oncoming traffic, hills and curves.

Commonwealth v. Bostick, C.P. Monroe (October 31, 2012). After receiving reports of defendant’s erratic driving, troopers observed the car swerving within it’s lane, travel at a slow speed and almost strike construction signs. Probable cause to stop for violation of 75-3309, Driving on Roadways Laned for Traffic, existed.

Commonwealth v. Adams, Vol. 29, No 45 Franklin Ct. L. J. 162 (May 11, 2012). Officer had reasonable grounds to detain defendant found in parked car where, after reports of potential DUI driving, car matching description found with defendant behind wheel, with alcohol in car, parked 2-3 feet into roadway with keys in ignition and wipers activated despite sunny weather. Miranda not required as routine traffic stop where suspect is under investigative detention is not custodial.

Commonwealth v. Doyle, C.P. Carbon (May 24, 2012). Probable cause existed to stop vehicle where trooper observed defendant’s truck straddle two lanes while stopped at a traffic signal then almost strike the curb while making left turn upon light turning green. Although arresting trooper left the room during the 20 minute observation time, another trooper was present observing the defendant and no evidence existed suggesting the defendant ingested alcohol, regurgitated or ate/drank during that time.

Commonwealth v. McCoy, PICS Case No. 12-0144 (CP Lawrence January 9, 2012). Motion to suppress denied where officer had reasonable suspicion to stop based on turn signal violation and after observing defendant engage in suspected prostitution activity.

Commonwealth v. Perini, PICS Case No. 12-0304 (CP Monroe, January 5, 2012). Motion to suppress granted as officer lacked justification to stop where officer estimated speed of 40 mph in 25 mph zone. No probable cause for speeding, no reasonable suspicion for DUI as only evidence leading to suspicion of DUI gathered post stop.

DUI-Drugs

Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011). Expert testimony, while in some cases helpful or even necessary to provide sufficient evidence for conviction of 3802(d)(2), not a mandatory requirement to establish that the defendant’s inability to drive safely was caused by the ingestion of drugs.

Commonwealth v Graham, 81 A.3d 137 (Pa.Super. 2013). Post-verdict judgment of acquittal reversed as sufficient evidence presented for conviction of 3802(d)(3), driving under the influence of combination of drugs and alcohol, where, after observing erratic driving, officer stopped defendant’s vehicle and observed signs of impairment including the odor of alcohol. After refusing testing, defendant stated that she had three medications in her system that would appear if tested. Pursuant to Griffith, the Commonwealth was not required to call an expert witness to provide opinion on impairment as officers observations and training sufficed.

Commonwealth v. Hutchins, 42 A.3d 302 (Pa.Super. 2012). Evidence sufficient to convict for DUI-drugs where evidence indicated defendant was impaired by marijuana. Defendant involved in accident and, per trooper, signs of impairment present with an admission to smoking a bowl earlier in the day. Admission of tests performed on serum rather than whole blood not in error. No conversion necessary as 3802(d)(1)(iii) prohibits any amount of a metabolite. Conviction of REAP vacated as no proof defendant operated in a reckless fashion.

Commonwealth v. Tarrach, 42 A.3d 342 (Pa.Super. 2012). Sufficient evidence for DUI-drugs where defendant, after rear-ending a vehicle, observed unsteady with glassy eyes and slurred speech. Defendant failed SFST’s and after admitting consuming prescription drugs, was found with Xanax, amphetamines, Oxycodone and other drugs in her system. Toxicologist testified that the effect of some drugs could render her in capable of driving safely. Sufficient evidence for summary convictions of following too closely also presented.

Commonwealth v. Jaeger, C.P.Carbon, November 30, 2012. Sufficient evidence for DUI-general impairment with refusal and DUI-combination of alcohol and drugs where defendant, after causing a head-on collision, refused testing. Signs of impairment observed, admission to consuming alcohol made and pills/syringes found in defendant’s possession.

Commonwealth v. Reed, C.P. Delaware, October 11, 2012. Sufficient evidence for DUI-general impairment & DUI-combination of drugs and alcohol where, after striking two parked cars, defendant observed with bloodshot eyes, slurred speech and odor of alcohol and marijuana. Defendant after failing SFSTs, admitted that he “just got done smoking some weed”. BAC .07%.

Power of Arrest

Commonwealth v. Marconi, 64 A.3d 1036 (Pa. 2013). Sheriffs deputies not police officers and not invested with general police powers beyond authority to arrest for in-presence breaches of peace and felonies. No independent authority to establish and conduct sobriety checkpoints.
Commonwealth v. Garibay, ___ A.3d ___ (Pa.Super. 2014). Safety checkpoints must be established based on the same standards as DUI checkpoints. Commonwealth failed to establish safety checkpoint complied with these requirements at suppression hearing where no testimony was provided concerning the location and/or timing of checkpoint.

Commonwealth v. Boyles, ___ A.3d ___ (Pa.Super. 2014). Suppression upheld as state owned campus police (Slippery Rock) failed to observe violation in primary jurisdiction and no exception to MPJA existed. Potential exists to overrule Durso as 24 P.S. 20-2019-A may permit off-campus arrests if exception to MPJA can be established.

Commonwealth v. Durso, 86 A.3d 865 (Pa. Super. 2013). Slippery Rock University Police stopped the defendant’s vehicle after observing it with an extinguished headlight while traveling on a road that traversed the campus. Stop occurred off University property but within 500 yards. Stop and arrest for DUI improper as 71 P.S. 646 & 646.1 only permits campus police from state aided and related colleges to make extra-terretorial stops within 500 yards not police of state owned colleges and universities.

Commonwealth v. Reigel, 75 A.3d 1284 (Pa.Super. 2013). No violation of MPJA where chief of police issued citations for actions in neighboring borough as part of continuing course of driving violations. Chief contacted neighboring city’s chief and the county district attorney for permission to file as required by MPJA.

Commonwealth v. Beeker, C.P. Lawrence (January 22, 2014). Exclusionary rule proper for violation of MPJA where officer had no probable cause that violation occurred in his primary jurisdiction and where no exceptions existed under MPJA to permit stop of defendant’s vehicle outside of officer’s primary jurisdiction. Court found officer was engaged in an “extra-jurisdictional fishing expedition”.

Sufficiency and Admissibility of Evidence

Actual Physical Control, Corpus Delicti, Location and Miranda

Commonwealth v. Callahan, C.P. Berks (June 27, 2014). Statements of defendant suppressed as interaction equaled a investigatory detention requiring Miranda warnings. Officer, while investigating a report of a vehicle operating on it’s rims, followed fluid and gauge marks to a parked vehicle at the defendant’s home. Defendant was questioned about his involvement. Habeas corpus relief granted as the Commonwealth failed to establish that the defendant was the driver or that he drove recklessly. No alcohol or drugs found in the car.

Commonwealth v. Nagle, C.P. Berks (June 13, 2014). Statements of defendant suppressed as interaction equaled a investigatory detention requiring Miranda warnings where officers, responding to witness’s account of erratic driving and alleged impaired behavior (defendant seen staggering out of car in lot of ice cream shop), located defendant and questioned him at his residence. Reasonable person would not have felt free to leave. Habeas corpus relief denied as eyewitness testimony established a prima facie case.

Commonwealth v. Shultz, C.P. Berks (November 15, 2013). Prima facie established where, after receiving reports of vehicle being driven on sidewalk, officer found defendant parked as directed by dispatch, behind the wheel with engine idling. Odor of alcohol, admission to drinking before driving and scuff marks on tires consistent with striking curb observed.

Commonwealth v. Court-Miles, C.P. Lawrence (October 25, 2012). Officer responded to a hit and run crash involving a tree and a red Trans Am. Car was found with fresh damage, hot engine and leaking fluids. Owner/defendant was located and admitted crashing after driving home from a bar. Signs of intoxication included strong odor of alcohol, flushed face, slurred speech and unsteadiness on feet. Prima facie case established for actual physical control while intoxicated. Sufficient evidence for 75-3745 despite lack of significant damage to tree.

Commonwealth v. Gettings, C.P. Lawrence (November 5, 2012). Sufficient evidence that defendant operated his vehicle while under the influence of alcohol where defendant, displaying signs of intoxication, found behind the wheel of a parked vehicle with a warm engine and key in the “on” position. Officer had patrolled the area 30 minutes earlier and had not observed the vehicle present. No other potential drivers near the proximity and no indication defendant consumer alcohol after parking.

Commonwealth v. Devine, C.P. Monroe (July 9, 2012). Habeas relief denied where trooper came across scene 1 hour and 45 minutes after defendant’s car crashed into ditch. Defendant (BAC .28%) admitted to driving, crashing and drinking vodka prior to driving. Sufficient evidence that defendant was in actual physical control of vehicle based on her admissions and trooper finding her sitting outside her car upon arrival. No evidence that defendant drank after crash in that no alcohol or location to procure alcohol in proximity.

Evidence of Test Results or Refusal

Bullcoming v. New Mexico, 564 US ___ (2011). Following Melendez-Diaz , the defendant’s right to confrontation was violated where the analyst who performed the testing of his blood was not called to testify and no assertion was made regarding the analyst’s unavailability.

Massachusetts v. Melendez-Diaz, 129 S.Ct. 2527, 174 L.Ed. 314 (2009). In a 4-1-4 decision, court held that admission of a notarized certificate of state lab analysts stating that the material seized by police was cocaine of a certain quantity was a violation of the Sixth Amendment (confrontation clause) when analysts did not testify. The concurrence limited his vote to “formalized testimonial materials” such as an affidavit (drug case – non DUI).

Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013). Police, when seeking consent for a blood draw for chemical testing, are not required to inform a defendant that the results may be used against him in court. Post-accident, arresting officer requested a blood sample to eliminate any possibility that alcohol or drugs were involved. Determination of whether defendant was aware that the tests could be used against must be done on a case by case basis considering the totality of the circumstances. Under circumstances in this case, it was reasonable to assume the defendant was aware the tests could be used against him in court.

Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013). No violation of defendant’s right to confront his accuser where witness was author of testimonial statement offered into evidence and was an appropriate witness under the Confrontation Clause. Witness called by the Commonwealth, Dr. Blum of NMS Labs, was the Assistant Lab Director and toxicologist. He reviewed the raw data from the three tests performed by two other employees, checked the demographic information, evaluated chain of custody and verified the proper testing was performed and affixed his electronic signature to the toxicology report.

Commonwealth v. Dyarman, 73 A.3d 565 (Pa. 2013). Confrontation rights not violated by Commonwealth’s failure to bring in technician who performed accuracy and calibration tests of Intoxilyzer machine. These logs were not created in anticipation of defendant’s particular litigation and not used to prove and element of the crime, therefor, not testimonial under Crawford, Melendez-Diaz and Barton-Martin.

Commonwealth v. Houck, ___ A.3d ___ (Pa.Super.2014). No error committed where trial court charged jury on lesser offenses for DUI violation. Defendant’s BAC was established via breath test to be a .170%. Trial court charged jury that they were required to determine whether defendant’s BAC was between .08%-.099%, .10%-.159% or .16% and above. Verdict resulted in conviction for DUI-high rate (.10%-.159%).

Commonwealth v. Brugger, 88 A.3d 1026 (Pa.Super. 2014). Trial court erred in denying the Commonwealth a pretrial hearing to determine the admissibility of supernatant results where conversion factors to whole blood in question.

Commonwealth v. Landis, 89 A.3d 694 (Pa.Super. 2014). New trial granted as no testimony that BAC of .164%, which was subject to 10% margin of error, was reliable. Since no explanation was provided to the jury concerning how the margin of error related to the defendant’s BAC, the jury was required to speculate that the BAC was over a .16%.

Commonwealth v. Olsen, 82 A.3d 1041 (Pa.Super. 2013). Enhanced penalties for DUI-refusal proper where motorist’s behavior made it impossible for officer to finish reading the DL-26 after starting. Case differed from Xander as officer’s attempted to read the implied consent form where in Xander, the officer never attempted.

Commonwealth v. Barr, 79 A.3d 668 (Pa.Super. 2013). Before a jury could find that a defendant refused testing, they needed to determine that the arresting officer had provided the defendant with his implied consent warnings. Trial court failed to so instruct. As a refusal increases the maximum penalties for second and subsequent DUI’s, Apprendi requires a factual determination beyond a reasonable doubt as to a refusal and it’s elements.

Commonwealth v. Beck, 78 A.3d 656 (Pa.Super. 2013). Commonwealth permitted to amend information at close of case to add DUI-High rate where defendant (BAC .125%) was originally facing DUI-general impairment. In considering required factors, court found that the defendant was not prejudiced by amendment as trial counsel had opportunity to cross examine expert on blood testing, was aware of the results and failed to show prejudice otherwise.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382 (Pa.Super. 2013) Second blood test properly obtained where defendant gave valid consent. No DL-26 required to be read before second draw due to implied consent law – “one or more chemical tests”.

Commonwealth v. Cruz, 71 A.3d 998 (Pa.Super. 2013). Sufficient evidence presented to sustain conviction for DUI where defendant’s blood not drawn until 11 hours after accident involving death and injuries. Commonwealth presented expert testimony that defendant’s BAC was at least .08% at time of driving based on circumstantial evidence and dissipation. Claim that expert opinion was unreliable and speculative goes to weight of evidence rather than sufficiency. Statements made by defendant not subject to suppression as statements made during investigatory stage and not rendered involuntary due to intoxication.

Commonwealth v. Barker, 70 A.3d 849 (Pa.Super. 2013). Defendant’s rights under 1547(i) were violated where defendant requested breath of urine test instead of blood as defendant was a “brittle diabetic” and suffered a previous infection due to an injection. Defendant’s request, made at the hospital, was reasonable practicable. Failure to conduct alternate test violated defendant’s right to present potentially exculpatory evidence.

Commonwealth v. Karns, 50 A.3d 158 (Pa.Super. 2012). Conviction for 3802(c), BAC .189%, overturned where Commonwealth failed to present evidence of a conversion factor for testing done on supernatant what was generally accepted in the scientific community. Conviction upheld for 3802(a)(1) where defendant’s vehicle observed drifting over center line 2x’s, defendant smelled of alcohol, had bloodshot/glassy eyes, slurred speech and failed SFST’s.

Commonwealth v. Haight, 50 A.3d 137 (Pa.Super. 2012). Conviction for 3802(b), charged BAC .174-.181%, upheld where court accepted conversion formula provided by defendant’s expert for testing done on supernatant. Commonwealth expert testified conversion to whole blood would result in nearly identical result as supernatant. Defendant’s expert provided a conversion, though not definitive, which trial court accepted as .158%. Trial court did not improperly shift burden of proof onto defendant by failing to accept Commonwealth’s conversion and accepting defendant’s.

Commonwealth v. Shaffer, 40 A.3d 1250 (Pa.Super. 2012). Pursuant to Melendez-Diaz, defendant’s right to confrontation not violated where Commonwealth fails to call phlebotomist who drew the defendant’s blood. Testimony of phlebotomist goes to chain of custody and weight of evidence. Verdict not against weight of evidence.

Commonwealth v. Braun, C.P. Lycoming (January 3, 2014). Expert witness, a pharmacologist, toxicologist and analytical chemist, who passed the NHTSA DUI Detection & Standardized Field Sobriety course, was permitted to testify to the limitations of sobriety testing for individuals who suffered knee and ankle injuries despite not having specialized knowledge with respect to treating and diagnosing medical conditions. While medical records are considered hearsay for an expert to testify from alleging that the patient suffers from a diagnosis, the expert may testify to the extent that his testimony relies on treatment prescribed and symptoms given.

Commonwealth v. Nies, 105 Berks 296 (April 18, 2013). Habeas relief granted for DUI-refusal 13
where police failed to take steps to insure that defendant with disability understood his implied consent consequences. Reading of DL-26 form met with blank stare from defendant.

Commonwealth v. Schildt, C.P. Dauphin Ct., December 31, 2012. Breath test results below .05% and above .15% inadmissible due to limited field calibration ranges. Additional issue due to manufacturer failing to conform to PA regulations requiring that calibration be completed with simulator solution that was certified by the manufacture to be of the proper concentration as determined by a laboratory independent of the manufacturer.

Commonwealth v. Daughenbaugh, CP-14-CR-1311-2011, Centre County, October 1, 2012. Conversion factor not required to compare result on supernatant with whole blood. Court utilized a 1-1 conversion factor.

Commonwealth v. Freeland, 61 Cumb. 80 (2012). Conviction of DUI-high rate sustained where Commonwealth’s expert testified that conversion factors used by Cumberland County Bureau of Justice Services were an accepted and approved scientific method. Officer had reasonable grounds to stop vehicle where defendant observed going over fog line, going towards center line, then jerking vehicle back into lane on both occasions. Sufficient evidence for both DUI-high rate & general impairment presented.

Commonwealth v. Leahy, 125 York Legal Record 154 (Feb. 9, 2012). Defendant entitled to jury instruction regarding missing video of SFST’s however defendant not entitled to dismissal of charges, suppression of evidence or exclusion of testimony as any discovery violations were inadvertent and not materially exculpatory. Therefor the defendant was not deprived of due process because of the unavailability.

Commonwealth v. Hetterich, 59 Ches. Co. Rep. 314 (Sept. 1, 2011). Evidence of HGN suppressed based on precedent. Evidence of finger dexterity test (finger to thumb while counting) also suppressed as no evidence was presented indicated scientific support for the test as evidence of impairment.

Commonwealth v. Pillado, 104 Berks Ct. L. J. 265 (May 31, 2012). Conviction for 3802(c) upheld (BAC .19%) where Commonwealth witness and defense expert testified in contradiction to each other on whether the Abbott TDX instrument tests whole blood or serum. Court found the jury was free to believe the Commonwealth witness who, as manager of the laboratory services at St. Joseph’s Medical Center, testified the machine in question tested whole blood requiring no conversion.

Commonwealth v. Sally/Walker, C.P. Philadelphia (2011). Defendant’s right to confrontation not violated if only a forensic toxicologist who reviewed the blood results, not the technicians and technologists who conducted the blood testing.

Commonwealth v. Weaver, C.P. Lawrence (March 16, 2011). Habeas petition granted and results of SFST’s deemed unreliable due to motorist’s age (59). Per NHTSA standards, tests not designed for those 60+ years of age. Although involved in accident, other evidence deemed insufficient (eyes a “bit” bloodshot/glassy & speech “slightly” slurred).

Aggravated Assault

Commonwealth v. Tucker, ___ A.3d ___ (Pa.Super. 2014). Sufficient evidence presented for charges of aggravated assault while DUI and DUI where defendant’s vehicle crossed the center line and collided with victim’s vehicle head on despite victim taking evasive action and honking horn as a warning. Blood test revealed drugs in system that, based on testimony of toxicologist, could cause lethargic behavior as observed.

Commonwealth v. Spotti, 94 A.3d 367 (Pa.Super.2014). Conviction of four counts of aggravated assault while DUI upheld as defendant’s conduct was determined to be the cause of injuries sustained where defendant’s erratic driving caused the other motorist to take evasive action, striking cars and pedestrians on the side of the road. Sufficient evidence of serious bodily injury presented.

Commonwealth v. Riggs, 63 A.3d 780 (Pa.Super 2012). After attempted traffic stop for driving at a high rate of speed, defendant entered intersection against red light without braking, colliding with another vehicle and injuring it’s occupants. Defendant fled from scene on foot and was apprehended a short time later. Chemical testing revealed marijuana at levels that caused impairment. Court found sufficient evidence of malice necessary for an aggravated assault conviction based on defendant’s prior contacts, admitted under Rule 404(b), with police involving three police chases where he ran red lights and stop signs and, on one occasion, crashed into a parked car as well as defendant’s failure to brake and subsequent fleeing from the scene.

Commonwealth v. Apgar, C.P. Lehigh December 3, 2013. Habeas denied where police were called to the defendant’s residence after his roommate indicated he was acting strangely. Upon arrival, the defendant accelerated towards police forcing the officer to dive out of the way and a second pursuing officer had to swerve to avoid being struck by the defendant’s car. Prima facie evidence existed that defendant attempted and intended to cause bodily injury to a police officer and attempted by physical menace to place the officer in fear of imminent serious bodily injury.

Search and Seizure

Missouri v. McNeely, 569 U.S. ___ (2013). The natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case to justify a per se rule that blood can be taken without a warrant. Issue must be determined on a case by case basis. Factors include the availability of a judge, procedures in place for obtaining a warrant and the metabolism of blood.

Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013). Where the defendant motorist was stopped for a traffic violation and investigation revealed a suspended license, police had authority to immobilize but not impound vehicle as there was no evidence that the vehicle posed an issue of public safety. Evidence uncovered during inventory search must be suppressed as an inventory search is not immediately permitted upon immobilization only.

Commonwealth v. Gatlos, 76 A.3d 44 (Pa.Super 2013). Initial search of defendant’s vehicle which revealed cigar boxes and contents not illegal as emergency circumstances (accident with unresponsive defendant) required search for identification purposes and for inventory purposes. Later search at impound lot which revealed a burnt cigar containing marijuana also proper inventory search. Based on above, blood results and samples requested based on items found in the car were not illegally obtained as fruit of the poisonous tree. Defendants confrontation rights not violated pursuant to Yohe.

Commonwealth v. Cartagena, 63 A.3d 294 (Pa.Super. 2013). After valid stop for illegal tint and pat down of defendant with negative results, search of console of vehicle which resulted in seizure of gun, illegal. No Terry search permitted as nothing indicated officer had reasonable suspicion that the defendant was armed or had weapon

Commonwealth v. Burgos, 64 A.3d 641 (Pa.Super 2013). Court found probable cause existed to install GPS device on defendant’s car which led to arrest on various drug offenses. Such conduct governed by PA Wiretapping & Electronic Surveillance Control Act. Police obtained wiretap order rather than a search warrant.

Commonwealth v. Arthur, 62 A.3d 424 (Pa.Super. 2013). Use of GPS on vehicle to obtain evidence permissible where police obtained order under Section 5761 of the Wiretap Act of March 2011. Court found remaining defendant’s failure to demonstrate privacy interest in vehicle involved.

Commonwealth v. Liddie, 21 A.3d 229 (Pa.Super. 2011). Seizure of cocaine observed in duffle bad under bag of marijuana lawful under plain view doctrine. Motorist stopped after driving at high rate of speed and found not to have a license. Marijuana observed in back seat on top of open duffle bag.

Commonwealth v Maldonado, 14 A.3d 907 (Pa.Super. 2011). Evidence (drugs) found in satchel in trunk during inventory search not suppressed where driver, the only occupant, who was not owner of vehicle, failed to establish a expectation of privacy in contents of trunk of vehicle. Driver did not establish he had permission to drive the vehicle.

Commonwealth v. Myers, C.P. Philadelphia, 52681 CR 2012 (January 17, 2014). Warrantless blood draw taken from unconscious, medicated defendant improper pursuant to McNeely as no exigent circumstance existed and there was no indication that officers were unable to obtain the required warrant.

Commonwealth v. Sell, C.P. Lehigh (July 31, 2012). Motion to suppress evidence recovered from vehicle’s event data recorder denied where search warrant supported by probable cause.

Commonwealth v. Hurd, 53 Adams Ct. L.J. 305 (September 8, 2011). Officer failed to have legal justification to request that hospital draw blood for BAC testing where officer, who never had interaction with and never observed defendant, was advised by EMT’s that alcohol may have been a factor in accident. Commonwealth failed to establish that officer had reasonable grounds to request blood as required by 1547(a)(1).

Penalties/Due Process

Note 1: consult Pa. Sentencing Guidelines at Vol. 38, No. 36, Sept. 6, 16
2008, p. 4971 et seq. (204 Pa.Code §§303.1-303.18).

Note 2: penalties may also have collateral issues such as professional licensing issues/immigration. See, Wittorf v. State Board of Nursing, 913 A.2d 956 (Pa.Cmwlth. 2006); Padilla v. Kentucky , 2010 WL 1222274, U.S. Supreme Ct., March 31, 2010; “A Double Standard for Lawyers” (DUI disciplinary action), 52 PLW 344 (2009).

Commonwealth v. Taylor, ___ A.3d ___ (Pa. 2014). Defendant, subject to penalties for a second or subsequent DUI offense, can not be sentenced prior to completion of a drug and alcohol assessment pursuant to 75 Pa.C.S.A. 3814(2) the results of which shall be considered by the court in fashioning it’s sentence.

Commonwealth v. Feeney, ___ A.3d ___ (Pa.Super.2014). In Philadelphia Municipal Court, defendant waived his claim to speedy trial violation under Rule 1013 where defendant made himself unavailable on two prior court dates.

Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super. 2014). Trial court lacked authority to terminate an illegal sentence under Musau as claim should have been made through PCRA relief which was then untimely, however, if defendant completed the necessary programs and conditions of sentence and no longer needed supervision, the court could terminate a county IP sentence under 42 Pa.C.S.A 9733.

Commonwealth v. Martin, 97 A.3d 363 (Pa.Super. 2014). Philadelphia Municipal Court’s finding of not guilty improper where Commonwealth, unable to produce a witness, requested and was denied a continuance. Correct action was to dismiss. Double jeopardy did not attach as no testimony presented.

Commonwealth v. Flaherty, 89 A.3d 286 (Pa.Super. 2014). Trial court lacked authority to furlough a defendant sentenced to 1 year 90 days to 5 years.

Commonwealth v. Jurczak, 86 A.3d 265 (Pa.Super. 2014).County intermediate punishment policy that required defendant’s to serve a minimum term of incarceration before being eligible for IP conflicts with the express statutory provisions of the Sentencing Code as statute does not require minimum period of total confinement before being IP eligible.

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013). Maximum term of supervision limited to 6 months despite misdemeanor one grading for second offense, DUI with a chemical test refusal. NOTE: likely will also effect first and second offense violations subject to the M1 enhancement for children in the vehicle.

Commonwealth v. Infante, 63 A.3d 358 (Pa.Super. 2013). Probation revocation vacated pursuant to Haag where defendant charged with two, first offense DUIs. Initial sentence and subsequent revocations treated later DUI as second for mandatory purposes and subject to greater than 6 months supervision.

Commonwealth v. Stradley, 50 A.3d 769 (Pa.Super. 2012). Order of $7900 restitution proper despite that the defendant’s insurance company (Allstate) had paid victim same amount for loss. Court, on appeal, remanded for entry of restitution in favor of Allstate. If Allstate excuses defendant of repayment, once payment is made, Allstate could credit or return payment to defendant.

Commonwealth v. Bowers, 25 A.3d 349 (Pa.Super. 2011). Defendant arrested for DUI on September 5, 2008, entered ARD on January 21, 2009 and arrested for another DUI on June 13, 2009. Defendant was removed from ARD and later found not guilty on first DUI. Pursuant to 75 Pa.C.S.A. 3806(b), June 13 DUI considered second offense for mandatory purposes despite acquittal as entry into ARD was the key occurrence.

Commonwealth v. Pombo, 26 A.3d 1155 (Pa.Super. 2011). For purposes of mandatory sentencing, a New York state Driving While Ability Impaired (DWAI) acts as a prior offense. The New York DWAI is a “substantially similar” offense as required by the amended 2004 DUI law. “Equivalent” offense language no longer applies.

Commonwealth v. Haag, 981 A.2d 902 (Pa. 2009). Defendant’s first DUI offense, which occurred less that two hours before a subsequent DUI offense, does not qualify as a “prior offense” under 75 Pa.C.S.A. §3806 for purposes of sentencing since defendant had not been convicted of the first DUI offense at the time the subsequent DUI offense was committed.

Commonwealth v. Shawver, 18 A.3d 1190 (Pa.Super. 2011). Defendant, who entered ARD on 2008 DUI, arrested for second DUI in 2009 and removed from ARD due to new offense, was properly sentenced as second offender on 2009 DUI. Such a treatment does not violate defendant’s right to equal protection.

Commonwealth v. Mentzer, 18 A.3d 1200 (Pa.Super. 2011). Commonwealth permitted to amend information post-trial but pre-sentence after probation department check revealed prior DUI offense in the state of Maryland. Amendment changed grading from M to M1.

Commonwealth v. Sarapa, 13 A.3d 961 (Pa.Super. 2011). Greene County’s policy of excluding all DUI’s from intermediate punishment program (IPP) improperly intrudes upon the trial court’s sentencing authority.

Commonwealth v. Newman, C.P. Lycoming (January 30, 2014). Pursuant to Musau, trial court properly sentenced defendant, convicted of second DUI, to maximum of 6 months where defendant refused chemical testing.

Commonwealth v. Kuhn, 62 Cumb. 1 (2012). Sentence of 3-6 months for DUI-Highest Rate was not excessive despite being first offense in 10 years where conviction was defendant’s 8th lifetime DUI. Guideline range 72 hours-3 months. Officer had reasonable suspicion to stop based on slow driving and crossing of center line with oncoming traffic present.

Commonwealth v. Crable, C.P. Berks (August 28, 2012). First offense DUI, ungraded 18
misdemeanor, not subject to trial by jury as it is a petty offense as opposed to serious offense. A serious offense is one that carries a maximum sentence greater that 6 months incarceration.

Commonwealth v. Broomer, 99 Del. Ct. Reports 41 (Feb. 24, 2012). Defendant not prejudiced by Commonwealth’s request to amend information after defense counsel’s closing, but before Commonwealth’s. Defendant, who refused testing, was charged on the information with DUI-highest rate.  Commonwealth, at the beginning of trial, indicated that all summary offense would be withdrawn and the prosecution would proceed on DUI-refusal. Defendant was aware of this allegation and all evidence presented was based on the refusal and not any alleged BAC.

Commonwealth v. Henderson, 103 Berks Ct. L.J. 122 (Jan. 13, 2011). Sentence of 90 days IPP served on electronic monitoring proper despite mandatory minimum of 90 imprisonment.

Commonwealth v. Corrigan, 992 A.2d 126 (Pa. Super. 2010). Trial courts guidelines on ARD restrictions were improper as they were inflexible and intruded upon the discretion of the District Attorney.

Ignition Interlock

Smith v. PennDot, 41 A.3d 924 (Pa.Cmwlth. 2012). Defendant required ignition interlock as condition of restoration where 1st DUI occurred in March 2010 and 2nd in May 2010. Defendant pled and was sentenced on both DUI’s at the same time. The term “prior offense before sentencing” included sentence for 1st offense ordered on same day as 2nd.

Whalen v. Penn Dot, 32 A.3d 677 (Pa. 2011). Defendant’s ARD acceptance in 2007 following a 1998 DUI conviction in Florida required installation of ignition interlock post 60 day ARD suspension. ARD constitutes “violation” of 3802 for purposes of 3805.

Cobb v. Penn Dot, CP Monroe (Nov. 9, 2010). No ignition interlock required where motorist, who accepts ARD on 2009 DUI, had prior ARD in 2000. ARD acceptance does not constitute conviction for purposes of ignition interlock law (75 PaCSA 3805).

Plea agreements

Commonwealth v. Greenwood, 59 Ches. Co. Rep. 101 (Feb, 29, 2012). Where Commonwealth and defendant enter into agreement at preliminary hearing to withdraw 3802(a)(1) in exchange for waiver of 3802(a)(2), Commonwealth, pursuant to contractual principals, is not permitted to later reinstate 3802(a)(1) as defendant detrimentally relied on agreement in waiving his right to a preliminary hearing.

Homicide by Vehicle and Related Offenses

Sufficiency of Evidence

Commonwealth v. Thompson, ___ A.3d ___ (Pa.Super. 2014). Sufficient evidence of malice to sustain conviction for third degree murder where defendant with marijuana in his system, fled from police, drove his vehicle at speeds of 55-61 mph in a 30-40 mph zone, and proceeded through a steady red light, fatally striking two pedestrians.

Commonwealth v. Pedota, 64 A.3d 634 (Pa.Super 2013). Sufficient evidence of gross negligence or recklessness that defendant fell asleep behind wheel of tractor trailer before drifting off road, striking another parked truck, killing it’s driver who was outside. See, Commonwealth v. Huggins, 836 A.2d 826 (Pa. 2003). It was incumbent upon defendant to prove classic signs of sleep eluded him before the crash.

Commonwealth v. Fabian, 60 A.3d 146 (Pa.Super. 2013). Evidence sufficient to convict garage mechanic of involuntary manslaughter for failing to adequately inspect brakes of can used to transport school children. Death of passenger was a direct result of defendant’s conduct . Sufficient evidence of REAP conviction.

Commonwealth v. Bodden, 87 Bucks Co. L. Rep. 310 (Dec. 27, 2013). Sufficient evidence for conviction of third degree murder where malice established by showing that defendant vehicle at speeds of 140-155 mph, failing to brake until impact. Evidence of prior bad acts from Facebook page where defendant bragged about high speed cars properly admitted.

Merger

Commonwealth v. Kimmel, ___ A.3d ___ (Pa.Super. 2014). Charges of DUI merges with third degree felony, fleeing and eluding, where grading enhanced by DUI conviction.

Commonwealth v. Raven, 97 A.3d 1244 (Pa.Super. 2014). Accidents involving death or personal injury while not properly licensed, habitual offender and DUS-DUI do not merge for sentencing purposes as the statutory requirements of each offense are not included within the statutory requirements of the others.

Commonwealth v. Tanner, 61 A.3d 1043 (Pa.Super. 2013). DUI merges with homicide by vehicle while DUI and aggravated assault by vehicle while DUI. Case remanded for resentencing. Crimes arose from single act and all of the statutory elements for DUI are included in the statutory elements of homicide by vehicle while DUI and aggravated assault by vehicle while DUI.

Commonwealth v. Allen, 24 A.3d 1058 (Pa.Super. 2011). Admission of blood alcohol level not in error when hospital, per standard procedure, destroyed sample. No indication of bad faith. DUI and involuntary manslaughter do not merge for sentencing purposes.

SPEEDING

PA Bulletin Reference

Approved speed-timing devices and appointment of Maintenance Calibration Stations:
Vol. 44, No. 52, December 27, 2014, pp. 8064-8066

Official Traffic Control Devices

(a) Pa. Bulletin, Vol. 36, No. 5, Feb. 4, 2006, pp. 537-558 (67 Pa.Code §212.1 et. seq.) (Adopts MUTCD)(Includes Pa. requirements for speed zones including construction, school, bridge, hazardous grade and regular speed zones)
(b) Pa. Bulletin, Vol. 40, No. 3, Jan. 16, 2010, p. 480 (delays implementation of 2009 edition until Pennsylvania publishes their approval in Pa. Bulletin)

MISCELLANEOUS

Driving under Suspension

Commonwealth v. Harden, ___ A.3d ___ (Pa.Super. 2014). DUS-DUI related conviction proper despite the fact that the refusal suspension was pending while the motorist was suspended for other traffic offenses. Court could reasonably infer from circumstances that motorist had notice of his suspension.

Commonwealth v. DiSalvo, 70 A.3d 900 (Pa.Super. 2013). After conviction and appeal for a fourth driving under suspension charge, defendant was sentenced to 30 days incarceration. No abuse of discretion as court permitted to sentence up to 6 months under 75-6503(a) and court took into account defendant’s alleged mitigating factors.

Commonwealth v. Kimmel, 61 Cumb. 53 (2012). Sufficient evidence for conviction of 1543(b) as evidence indicated that defendant drove on a highway or traffic way where motorist found sleeping behind the wheel with the engine running in wooded area. Fresh mud tracks led from public toad to the vehicle.

Commonwealth v. Gutierrez, SA-0312-2008, Lanc., April 21, 2009. A defendant who had 5th, 6th and 7th violations of §1543(a) could be sentenced to 90 days to six months aggregate sentence (see 75 Pa.C.S.A. §6503(a.1)).

Underage Drinking

Commonwealth v. Brigidi, 6 A.3d 995 (Pa. 2010). Introduction of PBT results for underage drinking case improper without testimony regarding the reliability of such device.

Commonwealth v. Furrer, 48 A.3d 1279 (Pa.Super. 2012). Denial of expungement for underage drinking conviction, where defendant satisfied all requirements of 18-9122(a)(3), improper as language of statute mandates expungement. Expungement of simple assault charge properly denied.

Commonwealth v. Downey, 39 A.3d 401 (Pa.Super. 2012). No error in detention when officers encountered three individuals in parking garage when investigating loud screaming. Initial contact was a mere encounter as no officer blocked or restricted the defendant. Subsequent seizure was proper after signs of intoxication were detected. Entry of PBT result, while potentially in error pursuant to Brigidi and warranting of new trial not improper in this case as the defendant never objected at trial.

Hit and Run

Commonwealth v. Smith, 69 A.3d 259 (Pa.Super 2013). Sufficient evidence for conviction of accidents involving damage to unattended vehicles, where, police testified that, during a police chase after a shooting, radio reports indicated defendant hit two parked cars. Other officer responded to area, observed damage to vehicles and confirmed damage with owners.

Commonwealth v. Lowry, 55 A.3d 743 (Pa.Super. 2012). Defendant’s vehicle observed cutting 22
in front of oncoming traffic as is exited a gas station resulting in opposing traffic taking evasive action including a SUV that swerved into another car, killing it’s occupant. Defendant’s vehicle was never struck and he failed to remain at the scene. Term “involved in an accident” under 75 PaCSA §3742 doesn’t require physical contact with other object. Sufficient evidence existed to indicate that defendant knew he was involved in an accident.

Commonwealth v. Wisneski, 29 A.3d 1150, (Pa. 2011). PICS Case No. 11-4235. Commonwealth not required to prove victim alive when struck by defendant for conviction of 75 Pa.C.S.A. §3742(a). Term “resulting in injury” includes harm or damage to body of human whether deceased or not.
Commonwealth v. Swaboski, 85 Northumberland Np. 17 (April 5, 2013). Where defendant stuck a group of 5 individuals on the side of the road and left the scene, proper prosecution only permits one charge of 75-3742, not a charge for each person struck.

Careless Driving

Commonwealth v. Gezovich, 7 A.3d 300 (Pa.Super. 2010). Evidence insufficient to sustain conviction for careless driving where only testifying witness, the citing officer, did not observe accident, but arrived after both vehicles were moved from original location, . Statement of defendant that she saw the vehicle in front of her “too late…but hit it anyway ”. Mens rea requirement of careless driving requires more than ordinary negligence. Fact that defendant did not stop it time does not mean she was negligent as other driver’s actions may have contributed to accident.

Commonwealth v. Santee-Gillespie, CP Lehigh (4/7/2011). Sufficient evidence existed to convict for careless driving involving death where motorist struck a pedestrian shoveling on a snow covered road. Defendant veered to avoid opposing traffic and struck victim. No indication the defendant braked or performed evasive maneuvers. Defendant made statement he was traveling too fast for conditions.

Fleeing/Eluding

Commonwealth v. Bowen, 55 A.3d 1254 (Pa.Super. 2012). Sufficient evidence for fleeing and eluding, DUI, possession of a controlled substance and paraphernalia where defendant led police on a 30 minute pursuit across state lines requiring disabling of vehicle before pursuit ended. Sentence of 6.5-15 years not abuse of trail court’s discretion where court properly articulated nature/circumstances of the offense as well as defendant’s history and personal characteristics. Maximum sentence of 6 months pursuant to 75-6503 does not apply to F3 fleeing and eluding based on analysis/contrast of

Commonwealth v. Ruffin, 16 A.3d 537 (Pa. Super. 2011).
In the Interest of R.C.Y., 27 A.3d 227 (Pa.Super. 2011). Fleeing and eluding properly graded as a felony where juvenile fled from police, pulled away when cornered with police officer reaching inside of vehicle. Officer required to roll away from vehicle to avoid being run over. Actual speed of fleeing vehicle not required to be high in order to reach felony level grading.

Commonwealth v. Ruffin, 16 A.3d 537 (Pa. Super. 2011). Under the language of 75 PaCSA 23
§6503, a second conviction for fleeing and eluding, despite a M2 grading, can only subject the defendant to a maximum of 6 months imprisonment.

Commonwealth v. Santiago, 104 Berks Ct. L.J. 253 (May 17, 2012). Sufficient visual or audible signal to stop vehicle given to the defendant where officer blocked defendant’s path using police vehicle and approached the defendant’s vehicle on foot in full uniform before having to dive onto hood of police car as defendant sped by and second officer’s use of marked unit’s lights while traveling in defendant’s lane of travel constituted sufficient notice.

Commonwealth v. Valle, PICS 10-1168, C.P. Lehigh Jan. 30, 2010. Violation of fleeing/eluding properly graded as felony where motorist drove away from police making illegal turns and driving evasively. Upon initially being stopped by police, he accelerated away and was chased until he ran onto a sidewalk in a residential area, striking trees.

Police Mobile Video Recording Systems Addendum

Pa.Bulletin, Vol. 39, No. 32, August 8, 2009, p. 4873. See also, Vol. 39 No. 45, November 7, 2009, p. 6531; Vol. 39, No. 50, December 12, 2009, p. 7085.

Expungement

Commonwealth v. Norman, C.P. Chester, October 12, 2012. Petition to expunge denied where defendant convicted of traffic violations during 5 year period where defendant was required to be free of arrest or prosecution. While traffic violations are not arrests, they were considered prosecutions by the court.

Commonwealth v. Wubbe, 59 Cumb. 34 (2009). Petitioner entitled to expungement of all previous summary offenses (driving w/o license – 1992; harassment – 1994; harassment, disorderly conduct (2) – 1995) under 18 Pa.C.S.A. §9122(b)(3)(i) does not require the five year “free of arrest or prosecution” period to immediately follow each conviction.

Window Tint

Commonwealth v. Rodriguez, 81 A.3d 103 (Pa.Super. 2013). A vehicle driven by a constable with illegal tint does not fall under the government vehicle exception of 4524(e)(2) as a constable is not a government employee and the personally owned vehicle is therefore not considered a government vehicle.

Commonwealth v. Brubaker, 5 A.3d 261 (Pa.Super 2010). Conviction reversed for violation of 75 Pa.C.S.A. §4524(e)(1) where facts exposed that tint, while only 33.6% of light passed through window (70% required), still permitted persons to see inside the vehicle. See 75 §4107(b)(2) and 67 Pa. Code §175.67(d)(4).

Eye Protection

Commonwealth v. Thrush, 364 CR 2011, Jefferson Ct., Conviction for 75 PaCSA §3525(b) sustained where defendant operated his motorcycle without required eye protection. Windshield of motorcycle, while high enough to keep wind, bugs and debris from flying into defendant’s eyes, not “eye protective device” as required by statute.

High Beams

Commonwealth v. Pierre, 105 Berks 325 (May 20, 2013). No requirement to dim beams for traffic waiting to turn onto road defendant traveling down when no other oncoming traffic present.

Duty of Driver in Emergency Response Area

Commonwealth v. Hurst, 86 Bucks Co. L. Rep. 295 (October 17, 2012). Probable cause for violation of 75-3327 where motorist failed to yield to police officer who, after traffic stop was completed and subject vehicle pulled away, remained on side of road with the light bar activated.

Turn Signals

Commonwealth v. Brown, 64 A.3d 1101 (Pa.Super. 2013). Turn signal required even when defendant in lane designated for left turns only giving motorist only option but to turn left. Law requires signal despite presence in lane already signaling an intention to turn.

Ornamental Lighting

Commonwealth v. Smith, 63 Cumb. 152 (2014) Stop of a vehicle for ornamental windshield washer nozzle lights proper as 67 Pa. Code 175.66(h) prohibits lamps not enumerated in the Code unless they are available as original equipment.

Event Data Recorders

Commonwealth v. Safka, 95 A.3d 304 (Pa.Super. 2014). Commonwealth was permitted to present testimony concerning evidence gained from the vehicle’s EDR for purposes of establishing the speed of the defendant’s vehicle for accident reconstruction purposes. Data recovered was not novel scientific evidence subject to Frye test.

Accidents while not properly licensed

Commonwealth v. Kutzel, 64 A.3d 1114 (Pa.Super. 2013). Defendant, while DUS, struck a child while making a turn with a green signal causing injuries. Conviction for accidents involving death or bodily injury overturned as Commonwealth unable to establish the defendant acted with gross negligence. No indication of excessive speed, distracted driving or impaired driving.

Commonwealth v. Eidenmiller, PICS Case No 11-4610 (CP Lawrence 11/22/11). Commonwealth failed to prove prima facie case of accidents involving death or bodily injury while not properly licensed. Defendant, who had motorcycle permit, was not permitted to operate at 1:00 AM when accident, killing passenger, occurred. There was no indication speed factored into accident and the cause was never determined. Failure to adhere to license restrictions did not amount to criminal negligence and no other proof of criminal negligence presented.

Third Brake Light

U.S. v. Jones, No. 12-1271 (December 4, 2012). Traffic stop proper for broken rear-center brake light as violation of 75 PaCSA §4303.

U.S. v. Richardson, No. 12-2418 (November 16, 2012). Stop of vehicle for faulty third brake light permissible under 75 PaCSA §4303. See,Commonwealth v. Muhammed, 992 A.2d 897 (Pa.Super. 2010).

Bail

Commonwealth v. McDonald, C.P. Lebanon, October 12, 2012. Rules of Criminal Procedure permit MDJ to set “no alcohol” restriction as condition of bail. Rule 523 requires that the bail authority consider drug and alcohol addictions and Rule 527 provides that defendant’s with known alcohol problems may be required to refrain from excessive use.

Windshield Obstruction

Commonwealth v. Prestopine, C.P. Lawrence (August 22, 2012). No reasonable suspicion existed to conduct traffic stop where officer unable to testify concerning the shape, size, location of crack or that windshield was shattered, contained sharp edges or was in driver’s line of sight. Suppression of DUI arrest granted.

Emergency Vehicles

Commonwealth v. Busser, 56 A.3d 419 (Pa.Super. 2012). Probable cause to stop for violation of 75 PaCSA §3325 which requires every vehicle to yield, drive to a position as close as possible as parallel to the right curb and stop the vehicle. Defendant, driving on 4 lane roadway, pulled into right lane but failed to otherwise comply with above. Order of trial court granting suppression of DUI arrest reversed.

Brake Inspections

Commonwealth v. SMP, Inc., 88 A.3d 234 (Pa.Super. 2014). After commercial vehicle was involved in an accident, PSP conducted an inspection of the brakes and found that 3 of the 10 brakes were nonfunctioning and defective. Trooper, unable to use truck’s air supply for testing, used tow truck’s instead. Court found that trooper deviated from methodology for testing brakes as required by North American Standard Inspection Procedure, however, it wasn’t the deviation that was the problem, it was the lack of testimony that this deviation did not affect the inspection results. Conviction overturned.

Registration

Ward v. Penn Dot, 65 A.3d 1078 (Pa.Cmwlth. 2013). Cumberland County constable’s appeal of the suspension of his registration plate denied. Constable initially received a municipal government plate without charge. Court determined that a constable is not a governmental or quasi-governmental entity under 75-1901 and not exempt from paying a vehicle registration fee.

Commonwealth v. Gravelle, 55 A.3d 753 (Pa.Super. 2012). Defendant’s cement pump/trailer was not required to be registered where defendant was transporting the equipment 300 miles between Kentucky and Pennsylvania. The term “operated incidentally” applies to purpose of operation. As purpose of operation is on “off-highway” locations, trailer not required to be registered.

REFUSAL

Arrest

Koutsouroubas v. Penn Dot, 61 A.3d 349 (Pa.Cmwlth. 2013). Reasonable grounds to arrest for DUI where officer observed motorist sped past officer, changed lanes without signaling and pulled into parking lot of convenience store where officer encountered motorist and observed odor of alcohol. Motorist admitted to drinking and became argumentative, refusing to exit the vehicle for SFSTs.

Bashore v. Penn Dot, 27 A.3d 272 (Pa.Cmwlth. 2011). Appeal denied where officer had reasonable grounds to believe motorist DUI where, after hit and run accident, motorist smelled like alcohol, unsteady on feet, had slurred speech and was unable to answer questions. No requirement officer need an indication that motorist was on a highway or trafficway. Motorist found on pull-off from private road.

Moyer v. PennDot, 28 A.3d 943 (Pa.Cmwlth. 2011). No violation of MPJA where officer observes motorist fail to stop at stop sign in neighboring jurisdiction and pursue motorist stopping him in primary jurisdiction. Officer suspected motorist driving under influence based on time of day and manner of violation. Stop proper as police officer had probable cause once vehicle entered his jurisdiction to stop for DUI. Suspension for refusal proper. Petition for Allowance of Appeal denied, 38 A.3d 827 (Pa. 2012).

Snyder v. Penn Dot, 2 A.3d 758 (Pa.Cmwlth. 2010). Pittsburgh Port Authority Police officers had authority to conduct traffic stop and arrest motorist for DUI as motorist was observed on property in the immediate and adjacent vicinity of officer’s property.

Weems v. Penn Dot, 990 A.2d 1208, (Pa.Cmwlth. 2010). Probable cause existed to make extra-territorial stop under MPJA when officer observed motorist’s vehicle traveling an estimated 50 mph in a 25 mph zone, in an area with high pedestrian traffic while approaching the crest of a hill and an intersection.

Marone v. Penn Dot, 990 A.2d 1187, (Pa.Cmwlth. 2010). Reasonable grounds to arrest and request blood test existed where motorist, who had been engaged in a dispute at a pharmacy an hour earlier, was found in a McDonald’s lot, passed out with face in a bag with engine running and lights on. Numerous pill bottles and pills where found throughout the vehicle. Motorist drifted in and out of consciousness, had trouble standing with blood shot eyes and slurred speech. No odor of alcohol was detected. Existence of other reasonable explanations does not vitiate officer’s reasonable grounds.

Ziobro v. Penn Dot, C.P. Monroe (December 4, 2013). Reasonable grounds existed to believe motorist operated while under the influence when driver found in church parking lot, asleep with engine running displaying signs of intoxication.

Vargas v. Penn Dot, C.P. Monroe (July 8, 2013). Reasonable grounds to believe motorist was operating while under the influence where officer observed standing outside parked car in a Walmart parking lot. EMT told officer motorist had been operating 3-5 minutes after officer arrived. Signs of impairment observed and motorist admitted to consuming alcohol.

Hockin v. Penn Dot, C.P. Monroe (October 3, 2012). Reasonable suspicion the motorist was 28
operating a vehicle under the influence where motorist, found in the passenger seat of a vehicle stuck on an embankment with female in drivers seat. Female admitted motorist was driver but she initially claimed to be the driver to avoid motorist getting another DUI. No indication blood test completed without motorist’s consent despite lack of signatures on form. Trooper testified he was certain from was read to motorist.

Kennedy v. PennDOT, 65 Beaver Ct. L.J. 23 (2011). Officer had reasonable grounds to believe motorist had been driving while intoxicated where motorist found asleep in cemetery with keys in ignition and engine off. No evidence located that suggested motorist drank after parking. Motorist displayed indicia of intoxication. Suspension for refusal proper.

Evidentiary and Related Issues of a Refusal

Nardone v. PennDot, ___ A.3d ___ (Pa. 2014). Petition for Allowance of Appeal granted on the following issues: (1) Whether, in response to a police request for chemical testing arising out of a D.U.I arrest, a motorist has a statutory right to request alternative chemical testing under section 1547(i) of the Motor Vehicle Code (75 Pa.C.S.A. § 1547(i))? (2) If a motorist has a statutory right to request alternative chemical testing under section 1547(i) of the Motor Vehicle Code when arrested for a D.U.I., does section 1547 require that any such request be conditioned upon the motorist having a medical condition preventing him from undergoing the chemical test requested by the police? (3) Whether, in response to a police request for chemical testing arising out of a D.U.I. arrest, a motorist’s request for alternative chemical testing, without more, constitutes a refusal to undergo chemical testing under 75 Pa.C.S.A. § 1547(b)(1)?

Sprecher v. PennDot, ___ A.3d ___ (Pa.Cmwlth. 2014). US Supreme Court decision of Missouri v. McNeely does not apply to Pennsylvania’s Implied Consent law and render it unconstitutional where a motorist refuses to consent to testing after arrest and no blood taken.

Walkden v. PennDot, ___ A.3d ___ (Pa.Cmwlth 2014). Reasonable grounds to arrest for DUI where, after receiving report of apparently intoxicated driver, responding trooper located motorist in vehicle, displaying signs of intoxication and admitting to driving to location despite the fact that trooper failed to observe the motorist operating the vehicle.

Bilka v. PennDot, 92 A.3d 1253 (Pa.Cmwlth. 2014). A bicyclist can lose his privilege to drive a motor vehicle for refusing chemical testing while operating a bicycle. The 2004 changes to the implied consent law removed the word “motor” from the statue leaving only the term “vehicle”. Under 75 Pa.C.S.A 102, vehicle is defined to include bicycles. “Operating privilege” doesn’t just apply to licensing but ability to use a vehicle on a highway.

Campbell v. PennDot, 86 A.3d 344 (Pa.Cmwlth. 2014). Appeal denied where evidence indicated that motorist failed to provide sufficient breath samples after being provided two testing opportunities. Case differed from Bomba as there was no indication that motorist made good faith attempt to provide a valid sample and was denied an opportunity. Motorist failed to properly preserve issue of whether a deputy sheriff was a “police officer” for purposes of providing the Implied Consent Warnings.

Ettelman v. PennDot, 92 A.3d 1259 (Pa.Cmwlth. 2014). After denying motorist’s license suspension appeal, the motorist, 4 months later, mailed a copy of a video to the court which purportedly raised a credibility concern with the arresting officer’s testimony about the reason for the stop of the vehicle. Based on this new evidence, the court reversed itself and found the officer to be incredible and sustained the appeal. Trial court’s decision overturned as the court did not have jurisdiction to reverse it’s previous order.

Giannopoulos v. PennDot, 82 A.3d 1092 (Pa.Cmwlth. 2013). Motorist’s appeal denied where, after attempting multiple times and supplying insufficient samples causing machine to time out, attempt deemed a refusal by arresting officer. Bomba does not require the police provide additional testing opportunities during the two hour window.

Vora v. PennDot, 79 A.3d 743 (Pa.Cmwlth. 2013). Suspension for refusal proper where, after arrest and transportation to a hospital for a blood draw, motorist refused to provide a blood sample. After leaving the hospital and arriving at the police station, motorist requested a “mulligan” and asked to be transported back to the hospital for a blood draw. This request has not honored by the police. Despite motorist’s claims, Court did not find that motorist was confused about what was being requested while at the hospital. Petition for Allowance of Appeal Denied.

Grogg v. PennDot, 79 A.3d 715 (Pa.Cmwlth. 2013). Motorists was provided an adequate opportunity to provide a chemical sample and her failure to provide a sample after having the DL-26 implied consent warnings provided resulted in proper license suspension. Motorist was read the warnings, failed to provide any response, was permitted to use the bathroom and upon her return read the warnings again. At that time, motorist began crying and, after two minutes, was ruled a refusal.

McKenna v. Penn Dot, 72 A.3d 294 (Pa.Cmwlth. 2013). Suspension of license proper where motorist, while expressing confusion concerning his right to an attorney after DL-26 form read, failed to provide a sample. Officer deemed actions a refusal. Motorist’s agreement to provide a sample after being lead back to the police car outside of the hospital not enough.

Murray v. PennDot, C.P. Chester (February 14, 2014). Suspension of license for chemical test proper as motorist made decision to refuse under a “knowing and conscience” standard. Motorist’s Constitutional right to an attorney was not violated pursuant to Commonwealth v. McCoy, 601 Pa 540 (2009).

Styczen v. PennDot, C.P. Monroe (January 6, 2014). Department met it’s burden to sustain suspension for out of state (New Jersey) DUI despite fact that notice contained improper spelling of motorist’s last name and was not under seal. Notice contained the correct date of birth, address and PA license number of motorist.

Conrad v. PennDot, 62 Cumb. 308 (2013). Suspension proper where, after being read warnings, motorist, without assenting to or declining test, questioned officer for 5-10 minutes before officer determining that the motorist’s conduct constituted a refusal.

Bostick v . PennDot, C.P. Monroe (January 8, 2013). LSA denied where trial court determined reasonable suspicion existed to arrest and request sample. After warnings read, motorist refused. Legality of arrest is not an issue on LSA.

Unreasonable Delay

Cesare v. Penn Dot, 16 A.3d 545 (Pa.Cmwlth. 2011). Motorist not prejudiced by 42 month delay in reinstating suspension that had been stayed pending appeal that was withdrawn where motorist did not change his circumstances but remained in the same position as time of conviction. Petition for Allowance of Appeal Denied 23 A.3d 1057 (Pa. 2011).

NON-REFUSAL SUSPENSIONS

CDL Disqualification

Kozieniak v. PennDot, ___ A.3d. ___ (Pa.Cmwlth. 2014). CDL disqualification proper where motorist entered ARD program for DUI violation that occurred in personal vehicle. No requirement that the motorist be made aware a disqualification would occur. ARD constitutes conviction for purposes of disqualification.

Dietrich v. Penn Dot, 82 A.3d 1087 (Pa.Cmwlth. 2013). Trial court lacked authority to mitigate lifetime CDL disqualification where driver received ARD for a 2006 DUI offense & convicted in 2012 of accidents involving death or personal injury. Lifetime ban required under 75 Pa.C.S.A. §1606(c).

Sondergaard v. Penn Dot, 65 A.3d 994 (Pa.Cmwlth. 2013). Lifetime disqualification of CDL proper where motorist had requisite number of convictions for DUI despite operating a personal vehicle during time of violations. Disqualification occur where operator was a commercial driver at time of violation. While disqualification penal in nature rather than remedial, statute not ambiguous.

Shewack v. Penn Dot, 993 A.2d 916, (Pa.Cmwlth. 2010). Disqualification of motorist’s CDL improper pursuant to 75 Pa.C.S.A. §1611 based on Maryland conviction for operating a motor vehicle while suspended as Maryland statute was not substantially similar to 75 Pa.C.S.A. §1606(c).

Pitter v. Penn Dot, C.P. Philadelphia Jan 8, 2010. Licensee’s voluntarily withdrawal from ARD and revocation of his participation in ARD by the court could no longer be used as basis for disqualification of licensee’s CDL.

Underage Drinking, Substance Abuse, Drugs and Medical Recall

Helwig v. PennDot, ___ A.3d ___ (Pa.Cmwlth. 2014). License reinstated after medical recall where treating physician provided evidence through Seizure Report that motorist was safe to drive and should not have her license recalled. PennDot did not sustain it’s burden that motorist medically incompetent to drive.

Rawson v. PennDot, 99 A.3d 143 (Pa.Cmwlth. 2014). Inchoate crime of criminal attempt to possess a controlled substance results in license suspension as crime is an offense that “involves the possession” of a controlled substance. Error in reporting (DL-21) form does not eliminate suspension as the suspension was based on actual events not the content of the form.

Slaweski v. PennDot, 96 A.3d 1127 (Pa.Cmwlth. 2014). Medical recall due to motorist’s lack of peripheral vision sustained where motorist’s optometrist failed to comply with regulations. Peripheral testing must be done with eyes focused straight ahead, not while scanning.

Meter v. PennDot, 41 A.3d 901 (Pa.Cmwlth. 2012). Department established prima facie case that motorist was incompetent to drive due to substance abuse by presenting medical report completed by physician assistant who treated motorist after automobile accident. Motorist failed to meet his burden that he was competent when only evidence presented was testimony of his mother indicating she had not seen him consume alcohol since the accident.

Dewey v. Penn Dot, 997 A.2d 416,(Pa.Cmwlth. 2010). Where treating physician presented report indicating motorists single episode of loss of consciousness due to hypoglycemia caused by unstable diabetes still permitted motorist to drive safely, recall of operating privileges improper. Petition for Allowance of Appeal denied, November 16, 2010.

Golovach v. Penn Dot, 4 A.3d 759 (Pa.Cmwlth. 2010). Where treating physician reported motorist who had heart attack for which pacemaker installed allowing motorist to remain physically able to operate vehicle safely, six month medical recall improper. Petition for Allowance of Appeal denied, May 27, 2011.

Klaja v. PennDot, 92 Wash. 49 (2012). Appeal for underage drinking suspension sustained where motorist entered pre-adjudicatory program, however, after learning of suspension, filed timely summary appeal and license suspension appeal. Underage drinking charge later nolle prossed and guilty plea entered to disorderly conduct.

Delay, Give Me Credit and First/Second

Phillips v. PennDot, 80 A.3d 561 (Pa.Cmwlth. 2013). One year suspension for New Jersey DUI violation despite allegation that suspension notice was defective. Notice indicated motorist was convicted of 3802(a)(2) which requires BAC between .08 and .099%. Motorists was not able provide a sample in New Jersey. Any defect in a conviction report received from another state can not be held against PennDot. Additionally, due process requirements are flexible and not technical and no particular form is required for a notice of suspension.

Clark v. PennDot, 62 A.3d 1059 (Pa.Cmwlth. 2013). No license suspension for juvenile adjudicated of 3802(a)(1) as juvenile subject to penalties under 3804(c) despite fact that court did not sentence him to those penalties.

Merger

Bell v. Penn Dot, 96 A.3d 1005 (Pa. 2014). Homicide by vehicle does not merge with homicide by vehicle while DUI for license suspension purposes. Criminal doctrine of merger does not apply to civil license suspensions.

Gayman v. PennDot, 65 A.3d 1041 (Pa.Cmwlth. 2013). Three, 6 month suspensions for drug violations proper as incidents were separate and distinct. Defendant arrested on 12/19, 12/20 and 12/30. Violations were not part of a single criminal episode.

Insurance

Parnell v. PennDot, ___ A.3d ___ (Pa.Cmwlth. 2014). Case remanded to trial court for determination of whether PennDot satisfied it’s burden that motorist operated without required financial responsibility.

Greenfield v. Penn Dot, 67 A.3d 198 (Pa.Cmwlth. 2013). Registration suspension proper where motorist’s lapse in insurance coverage exceeded 30 days.

Pangallo v. Penn Dot, 65 A.3d 1091 (Pa.Cmwlth. 2013). Motorist convicted of driving without insurance after driving his uninsured motorbike across a highway. After pleading guilty and receiving a notice of suspension, he filed a summary appeal and later pled to amended violations of disorderly conduct. Order of trial court granting the motorist’s appeal was reversed and suspension was reinstated.

Bradish v. Penn Dot, 41 A.3d 944 (Pa.Cmwlth. 2012). Suspension for 3 months improper for alleged violation of 7 Pa.C.S.A. 1786 where motorist presented clear and convincing evidence that insurance was secured at all relevant times as premium was deducted on same day as motorist cited.

Roscioli v. Penn Dot, 37 A.3d 1278 (Pa.Cmwlth. 2012). The proper method of challenging cancellation of insurance involves appeal to the Insurance Commission. License Suspension Appeal should have been held in abeyance pending appeal to the Commission.

McGonigle v. Penn Dot, 37 A.3d 1273 (Pa.Cmwlth. 2012). The proper method of challenging cancellation of insurance involves appeal to the Insurance Commission. License Suspension Appeal should have been held in abeyance pending appeal to the Commission.

Tucker v. Penn Dot, C.P. Philadelphia, March 22, 2013. Suspension for failing to have insurance overturned where Penn Dot failed to present competent evidence that motorist failed to maintain insurance. Defendant was stopped and cited with 1786 after failing to produce an insurance card. Conviction reduced on appeal. At suspension appeal hearing, Penn Dot relied on statements made by motorist and proof of conviction to meet it’s burden. Motorist testified insurance was in place at all times and that documentation confirming was lost.

Horsey v. Penn Dot, C.P. Philadelphia, Sept 27, 2012. Appeal of suspension due to insurance lapse sustained where testimony established lapse of 32 days. No testimony established whether vehicle was operated during that delay. Court found that under 1 PaCSA 1908, Saturday, Sundays and legal holidays were excluded from time computation and that court had discretion to modify minor time deviations in the interest of justice.

Scholl v. PennDot, 99 Del. Co. Rep. 63 (March 23, 2012). Appeal sustained where, despite producing evidence that underlying §1786 conviction was reduced upon summary appeal, motorist failed to provide required documentation indicating insurance in place as required by §1786(d).

Out of State Violations/Drivers License Compact

Roop v. Penn Dot, 6 A.3d 1 (Pa.Cmwlth. 2010). Driver’s License Compact does not permit license to be issued in PA to driver revoked in Florida . Language allowing application for license after one year post-revocation if “permitted by law’, not permitted by law in PA as 75 §1503(a)(1) prohibits issuance if revoked in another state. Petition for Allowance of Appeal Denied. ___ A.3d ___ (Pa. 2011).

Flynn v. Penn Dot, 3 A.3d 758 (Pa.Cmwlth. 2010). Pennsylvania’s denial to renew motorist’s license proper where motorist had license revoked for life by Illinois for four prior DUI offenses. Motorist’s argument that he surrendered license to Pennsylvania before his convictions failed as no proof was provided.

Fowler v. Penn Dot, 2 A.3d 1282 (Pa.Cmwlth. 2010). Where motorist’s privilege to drive permanently revoked by Florida as a result of four DUIs, motorist ineligible for PA license despite disparity in license sanctions (4 th DUI would have resulted in 12 month PA suspension).

Notice – Due Process

Mancuso v. PennDot, C.P. Monroe (March 13, 2012). License suspension appeal denied where motorist, despite not being a licensed driver at the time of his 4 year suspension, still had obligation to notify PennDot of new address. Motorist unsuccessfully argued that he failed to receive notice of his suspensions, 10 years earlier and was therefor unaware of his requirement to submit a DL-16. While result was arguably unfair to motorist, PennDot followed vehicle code requirements.

Clark v. PennDot, PICS Case No. 11-4166 (C.P. Philly 9/19/11). Departments attempt to increase suspension for refusal improper where original notice, mailed 7/27/07, indicated 12 month suspension and amended notice, mailed 2/16/11, indicated 18 month suspension. Motorist permitted to appeal within 30 days of amended notice mail date.

Cancellation

Camargo v. Penn Dot, PICS Case No. 10-2444, (C.P. Philadelphia, June 16, 2010). Cancellation of motorists license for failure to provide social security number upon renewal improper where motorist previously relied on their tax ID #’s to obtain and renew their licenses. 2005 REAL ID Act should not be applied retroactively and motorists should have been informed they should seek a social security number requirement waiver.

ARD

Hoffman v. Penn Dot, 7 A.3d. 344 (Pa.Cmwlth. 2010). Motorist was accepted into ARD, but during meeting at same time with probation, alcohol was detected. Judge issued rehearing at which time defendant was revoked from ARD. Court held that acceptance into ARD does not trigger a suspension, but participation in ARD will.

Outstanding Judgments

Franklin v. Penn Dot, 39 A.3d 453 (Pa.Cmwlth. 2012). Suspension of parents/car owner’s license improper under 75 Pa.C.S.A. 1772(a) where unpaid judgment imposed under Parental Liability Act (23 Pa.C.S. 5502) existed.

Summary Appeal

Commonwealth v. Ball, 97 A.3d 397 (Pa.Super.2014). Defendant found not guilty of DUS-DUI at District Court, but guilty of DUS. A timely summary appeal where the Court of Common Pleas considered the original charge and found the defendant guilty of DUS-DUI. Such a finding was improper based on double jeopardy grounds.

Commonwealth v. Dixon, 66 A.3d 794 (Pa.Super. 2013). Dismissal of summary appeal proper despite trial court’s failure to conduct inquiry of reasons for failure to appear. Reasons stated by defendant for his failure to appear indicated he failed to follow notice originally provided that indicated proper time and location and instead went to the wrong location then followed advice of unnamed individuals in attempting to locate hearing room then proceeded home without making attempts to contact the court. Defendant failed to establish a prima facie case that his appearance was involuntary.

Commonwealth v. Akinsanmi, 55 A.3d 539 (Pa.Super. 2012). Dismissal of appeal proper where defendant failed to appear in court due to her attendance at a conference. This failure to appear not considered good cause which would have granted a new trial.