Commonwealth v. Loeper

CASTILLE, Justice,

dissenting.

The majority holds that circumstantial evidence is not relevant to establish blood alcohol content (BAC) in a prosecution for driving under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(4). Because I believe that neither the statute nor the case law prohibits the use of circumstantial evidence in relating back appellant’s BAC to the time of driving, I must respectfully dissent.

It is well established that the Commonwealth can prove any or all elements of an offense through circumstantial evidence. Commonwealth v. Zimmick, 539 Pa. 548, 555, n. 9, 653 A.2d 1217, 1220-21, n. 9 (1995) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107-08 (1988)). Under 75 Pa.C.S. § 1547(c), BAC can be established through the *405results of chemical testing. However, nothing in either that section or in 75 Pa.C.S. § 3731(a)(4) restricts the proof of BAC to chemical tests. To the contrary, the legislature specifically provided further that subsection (c) “shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was driving under the influence of alcohol.” 75 Pa.C.S. § 1547(f). By holding that circumstantial evidence cannot be used to establish BAC related back to the time of driving, the majority nullifies this section of the statute.

Furthermore, neither Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), nor Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) prohibit the use of circumstantial evidence to prove BAC. Rather, the Court held that, where the BAC barely exceeded .10% and there had been a significant time lapse between driving and the blood test, the inference of guilt was weakened. Jarman, supra, 529 Pa. at 96, 601 A.2d at 1231; Modaffare, supra, 529 Pa. at 105, 601 A.2d at 1235. Under the circumstances of those particular cases, the Court held that the evidence was insufficient to establish relation back of the appellants’ BAC to the time of driving. Jarman, supra, 529 Pa. at 97, 601 A.2d at 1231; Modaffare, supra 529 Pa. at 106-07, 601 A.2d at 1236.

In Jarman, where the appellant’s BAC was .114%, just barely over the legal limit, one hour after driving, an expert testified that if appellant had consumed his last drink at the time he testified, his BAC would still have been rising at the time of testing, and would probably have been below .10% at the time of driving. In Modaffare, where appellant’s BAC was .108% one hour and fifty minutes after driving, the Commonwealth’s expert testified that there was no evidence upon which he could form any opinion as to what the alcohol level was at the time of appellant’s accident. The Court held in both cases that given the delay in testing appellants’ BAC, the slight deviation from the legal limit, and the lack of evidence from which the expert could form an opinion that appellant’s BAC at the time of the accident had exceeded .10%, there was not sufficient evidence to sustain the convic*406tions. Jarman, supra, 529 Pa. at 97, 601 A.2d at 1231; Modaffare, supra, 529 Pa. at 106-07, 601 A.2d at 1236.

The present case is distinguishable from both Jarman and Modaffare. Here, appellant’s BAC was .141%, more than 40% above the legal limit.1 Furthermore, appellant’s own expert was able to form an opinion, based upon the evidence presented at trial, that appellant’s BAC was in fact greater than .10%, and probably .15% or greater, at the time of driving. This appears to be precisely the sort of evidence, missing in Jarman and Modaffare, which would have rehabilitated the inference of guilt weakened by a borderline BAC and the delay in testing.

By excluding the use of circumstantial evidence in relating back BAC to the time of driving, the majority is requiring that the Commonwealth prove its case not just beyond a reasonable doubt, but by a mathematical certainty. Given that alcohol absorption rates differ with the individual, the result of this holding is that, as Mr. Justice Cappy stated in his dissent to Jarman,

Every time there is a case in which the test results are between .10 and .15 percent (approximately), and the test was not performed within minutes of the actual driving, the Commonwealth will be unable to prove its case. This would defeat the vital purpose and intent of the statute and would operate as a de facto evisceration of the .10 percent blood alcohol limitation in the statute.

529 Pa. at 100, 601 A.2d at 1233 (Cappy, J., dissenting).

Accordingly, I would affirm the order of the Superior Court, affirming the judgment of sentence.

. I must disagree with the majority’s opinion that a BAC 40% in excess of the legal limit is not a substantial departure.