J-A24019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
             v.                            :
                                           :
                                           :
MICHAEL A. MIKLOSKO, JR.                   :
                                           :
                  Appellant                :     No. 1816 WDA 2016

          Appeal from the Judgment of Sentence October 27, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0015671-2015


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

DISSENTING STATEMENT BY MUSMANNO, J.: FILED NOVEMBER 17, 2017

      I respectfully   disagree   with the       Majority’s    conclusion that the

Commonwealth      presented   sufficient       evidence   to    sustain   Appellant’s

conviction of driving under the influence of alcohol (“DUI”)—general

impairment, 75 Pa.C.S.A. § 3802(a)(1).          Specifically, I do not believe that

the evidence was sufficient to establish that Appellant was impaired by

alcohol to a degree that rendered him incapable of safe driving.

      Section 3802 provides, in relevant part, that a person “may not drive

… a vehicle after imbibing a sufficient amount of alcohol such that the

individual is rendered incapable of safely driving ….” 75 Pa.C.S.A. § 3802. A

person is incapable of safe driving when “alcohol has substantially impaired

the normal mental and physical faculties required to safely operate the

vehicle.”   Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super.
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2000).     “Substantial impairment, in this context, means a diminution or

enfeeblement in the ability to exercise judgment, to deliberate or to react

prudently to changing circumstances and conditions.”       Commonwealth v.

Montini, 712 A.2d 761, 768 (Pa. Super. 1998).

      To convict a defendant of driving under the influence of alcohol, to a

degree that the individual is incapable of safely driving, there must be proof

that the alcohol has substantially impaired the normal mental and physical

faculties required to safely operate the vehicle. Commonwealth v. Smith,

831 A.2d 636, 638 (Pa. Super.2003). Mere consumption of alcohol, without

more, is insufficient to establish that a defendant is incapable of safely

driving. See Commonwealth v. Rosko, 509 A.2d 1289, 1291 (Pa. Super.

1986) (stating that the consumption of three scotch and sodas without more

is insufficient to support a conviction for drunk driving). The odor of alcohol

on one’s breath is not, in and of itself, evidence of intoxication. See id.

      Ross Township Police Officer Balazs Devenyi (“Officer Devenyi”)

testified that he had observed Appellant make an illegal U-turn to travel

southbound on McKnight Road. N.T., 9/29/16, at 10. According to Officer

Devenyi,

      I exited the parking lot, and I closed the distance to the vehicle
      so I was able to run the registration, and while I was doing
      that[,] the vehicle was continuing south on McKnight Road, and
      at the intersection of the on ramp on [Internet] 279 south, which
      is to the right-hand side, there is a solid white line to prevent
      cars from cutting over from that on ramp back on to McKnight
      Road to travel to Evergreen Road. I observed the vehicle swerve


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       over that line for a second, apply its brakes, and then it swerved
       back over that line to take the on ramp on to 279 south.

Id.   Officer Devenyi activated his siren and stopped Appellant’s vehicle on

the ramp to the Interstate. Id. at 10-11.

       Officer Devenyi testified he smelled a moderate odor of alcohol on

Appellant’s breath, and that Appellant’s eyes were glassy, watery and

bloodshot.     Id. at 11.     There is no evidence that Appellant’s speech was

slurred. Appellant passed one field sobriety test, but failed two others.   Id.

at 13-15.     However, Appellant had informed Officer Devenyi that he had

diabetic neuropathy, which might impact one of the tests. Id. at 40. At the

hospital, Officer Devenyi testified, Appellant’s blood sugar was tested to be

349. Id. at 42. A breathalyzer test showed Appellant to have 0.0 percent of

alcohol in his breath.1 Id. at 35.

       Our review discloses no evidence that Appellant had slurred speech, or

difficulty producing his vehicle’s registration.    There is no evidence that

Appellant endangered himself or any vehicle when he made the U-turn or

crossed the white line. There is no testimony that Officer Devenyi believed

Appellant to be impaired by alcohol to such a degree as to be incapable of

____________________________________________


1 Officer Devenyi testified that he believed that the breathalyzer equipment
was defective, and that it was later found to be “incorrect” and taken out of
service. Id. at 35, 36. There is no evidence that the “incorrect” condition of
the breathalyzer affected the test results as to Appellant. Although stricken
from the record, at the hospital, Appellant’s blood alcohol content was tested
to be 0.019 percent.



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safely driving.    Rather, Officer Devenyi testified as to his belief that

Appellant was impaired “as a result of the field sobriety tests, [Appellant’s]

admissions and [Officer Devenyi’s] suspicion that [Appellant] had drugs in

[his] system.” Id. at 37.

      This evidence falls short of that which is required to establish DUI-

general impairment beyond a reasonable doubt. Under these circumstances,

I would vacate the judgment of sentence.




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