J-A15012-14


                             2014 PA Super 202

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellant

                   v.

TARIQUE WILSON

                        Appellee                     No. 1321 EDA 2013


                   Appeal from the Order April 3, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0008085-2012


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY PANELLA, J.                           FILED SEPTEMBER 18, 2014

      The Commonwealth of Pennsylvania appeals the Court of Common



petition for a writ of certiorari, from the order entered in Municipal Court

                                                        ress Evidence.    The

Commonwealth contends that the lower courts erred in determining that 75

Pa.C.S.A. § 3802(d), pertaining to driving under the influence of a controlled

substance, requires blood testing within two hours of driving. After review,

we rev

certiorari and remand for further proceedings.

      On February 25, 2012, at 11:55 p.m., Philadelphia Police Officer



the city of Philadelphia. See N.T., Municipal Court Hearing, 1/31/13 at 12.
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Officer Dixon arrested Wilson under suspicion of driving while intoxicated

(DUI) at 11:59 p.m. and transported him to the Philadelphia Detention Unit

(PDU).     See id. at 13-14.         At the PDU, Officer Henry Sienkiewicz was

assigned to process the blood testing of DUIs and was working alone the

evening Wilson was brought in for blood testing.            See id. at 18-19.

Eventually, another officer was freed to assist with the volume of DUIs to

process. See id. at 18. That evening, the officers processed between 25 to

30 DUIs, with an average Breathalyzer processing lasting approximately 28

minutes and blood testing requiring approximately 13 minutes. See id. at

20-22. Wilson was presented to Officer Sienkiewicz for blood processing at

2:25 a.m. and his blood sample was tested at 2:36 a.m. See id. at 21.

        The police eventually charged Wilson with driving under the influence

of a controlled substance.1        At a municipal court hearing on January 31,

2013, Wilson moved to suppress physical evidence, stating that over two

hours had passed between the time he had driven to the time his blood was

drawn, in violation of the two-hour rule of 75 Pa.C.S.A. § 3802.        Wilson

additionally argued that the Comm

                                 -hour rule under subsection 3802(g). Following



grounds that section 3802 was ambiguous as to whether the two-hour rule


____________________________________________


1
    75 Pa.C.S. § 3802(d).



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applied to offenders accused of driving under the influence of controlled

substances, and that the ambiguity therefore should be construed in favor of

the defendant. See N.T., Municipal Court Hearing, 1/31/13 at 30-31.

       On February 20, 2013, the Commonwealth filed a petition for writ of

certiorari to the court of common pleas. Following a brief hearing on April 3,



appeal followed.2

       The Commonwealth raises the following issue for our review:

       Where the police arrested defendant for driving under the
       influence of marijuana at 11:59 p.m., but could not obtain his
       blood sample for testing until 2:36 a.m. because of the large
       number of suspects waiting to be tested, did the Court of
       Common Pleas err in affirming the Municipal Court order

       sample was obtained more than two hours after arrest?



       Our standard of review is as follows.

             When reviewing the propriety of a suppression order, an
       appellate court is required to determine whether the record

       the inferences and legal conclusions drawn by the suppression
       court from those findings are appropriate. [Where the
       defendant] prevailed in the suppression court, we may consider
       only the evidence of the defense and so much of the evidence
____________________________________________


2
   This appeal properly invokes the jurisdiction of this Court as an
interlocutory appeal from an order that terminates or substantially handicaps
the prosecution. The Commonwealth has certified in good faith that the
order substantially handicaps the instant prosecution. See Pa.R.A.P. 311(d).




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     for the Commonwealth as remains uncontradicted when read in
     the context of the record as a whole. Where the record supports
     the factual findings of the suppression court, we are bound by
     those facts and may reverse only if the legal conclusions drawn
     therefrom are in error. However, where the appeal of the
     determination of the suppression court turns on allegations of

     binding on an appellate court, whose duty it is to determine if
     the suppression court properly applied the law to the facts.

Commonwealth v. Lark, 91 A.3d 165, 168 (Pa. Super. 2014) (citation

omitted).

     Instantly, the Commonwealth argues that the trial court erred in



3802(d), pertaining to driving under the influence of a controlled substance,

does not require testing for controlled substances to occur within two hours

of driving. Our examination of this issue is one of statutory interpretation,

which is a matter of law. Thus, our standard of review is de novo and our

scope of review is plenary. See Commonwealth v. Spence, 91 A.3d 44,

46 (Pa. 2014).

     When construing a [statutory provision] utilized by the General


                Every statute shall be construed, if possible, to give
                                Id.
     statute are clear and free from all ambiguity, the letter of it is

     Id
     to rules of grammar and according to their common and
                      Id. § 1903(a). In other words, if a term is
     clear and unambiguous, we are prohibited from assigning a
     meaning to that term that differs from its common everyday




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     Assembly does not intend a result that is absurd, impossible of
                               Id. § 1922(1).

Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).

     Subsection 3802(d) provides:

     (d) Controlled substances.--An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:



           (i) Schedule I controlled substance, as defined in the act of
           April 14, 1972 (P.L. 233, No. 64) known as The Controlled
           Substance, Drug, Device and Cosmetic Act;

           (ii) Schedule II or Schedule III controlled substance, as
           defined in The Controlled Substance, Drug, Device and
           Cosmetic Act, which has not been medically prescribed for
           the individual; or

           (iii) metabolite of a substance under subparagraph (i) or
           (ii).

     (2) The individual is under the influence of a drug or combination
     of drugs to a degree which impairs the individual's ability to
     safely drive, operate or be in actual physical control of the
     movement of the vehicle.

     (3) The individual is under the combined influence of alcohol and
     a drug or combination of drugs to a degree which impairs the
     individual's ability to safely drive, operate or be in actual
     physical control of the movement of the vehicle.

     (4) The individual is under the influence of a solvent or noxious
     substance in violation of 18 Pa.C.S. § 7303 (relating to sale or
     illegal use of certain solvents and noxious substances).

75 Pa.C.S.A. § 3802(d) (footnote omitted).          The plain language of

subsection (d) clearly does not specify a time limit within which blood must

be tested for the presence of a controlled substance. In contrast,

subsections dealing with blood or breath testing for alcohol consumption


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(with the exception of subsection (a)(1)) explicitly require

blood alcohol content reach a specified level within two hours of driving:

      (a) General impairment.--

            (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.

            (2) 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
            alcohol concentration in the individual's blood or breath is
            at least 0.08% but less than 0.10% within two hours after
            the individual has driven, operated or been in actual
            physical control of the movement of the vehicle.

      (b) High rate of alcohol.--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 alcohol
      concentration in the individual's blood or breath is at least
      0.10% but less than 0.16% within two hours after the individual
      has driven, operated or been in actual physical control of the
      movement of the vehicle.

      (c) Highest rate of alcohol.--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
      alcohol concentration in the individual's blood or breath is 0.16%
      or higher within two hours after the individual has driven,
      operated or been in actual physical control of the movement of
      the vehicle.

75 Pa.C.S.A. § 3802(a)-(c) (emphasis added).        Subsections (e) and (f),

prohibiting minors and drivers of commercial vehicles and school buses from

driving after imbibing alcohol, similarly contain a two-hour requirement for

blood and breath testing. See 75 Pa.C.S.A. § 3802(e)-(f).



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      The Commonwealth contends that in light of the two-hour limiting

language contained in subsections (a)(2), (b), (c), (e), and (f), the

conspicuous absence of such language in subsection (d) pertaining to

controlled substances must have been deliberate. Relying upon the maxim

                                expression unius est exclusion alterius

expression of one thing is the exclusion of another) the Commonwealth

                                                            the omitted language

was adopted, but that it was rejected

(emphasis in original).



argument that subsection 3802(d) does not contain a two-hour time



in   Commonwealth         v.   Segida,   985   A.2d   971     (Pa.   2009),     and

Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011).               In Segida, the

Supreme Court held that section 3802(a)(1), which proscribes driving after

the imbibing of sufficient alcohol such that the individual is rendered

incapable of safely driving, was an                                       one in

which the actual time of driving is not included in the elements of the

offense. See 985 A.2d at 878. The Court reasoned that because subsection

                                                                              lcohol

content reach a specified level within two hours of driving, unlike in

                                         the only relevant time period is that

span of time during which an individual is incapable of safely driving due to

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                           Id.   Writing for the majority, Justice Seamus

McCaffery reasoned that,

     [s]ubsections 3802(a)(2), (b), and (c) explicitly specify a time

     blood alcohol level while subsection 3802(a)(1) does not
     specify any time frame because of eminently practical
     considerations. The necessity for the two hour time limit in
     subsections 3802(a)(2), (b), and (c) is grounded in the practical
     impossibility either of measuring blood alcohol level precisely at
     the time of driving or of calculating the exact blood alcohol level
     at the time of driving from a single blood alcohol measurement
     taken at some point in time after driving. See [Commonwealth
     v. Duda, 923 A.2d 1138, 1141 (Pa. 2007)]. These practical
     considerations do not have the same force with regard to
     subsection 3801(a)(1), which does not limit the type of evidence
     that the Commonwealth can proffer to prove its case. See
     [Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super.
                                          ts predecessor [statute], is a
     general provision and provides no specific restraint upon the
     Commonwealth in the manner in which it may prove that an
     accused operated a vehicle under the influence of alcohol to a
     degree which rendered him incapable of safe
     and internal quotation marks omitted).

Id., at 879. The Court continued,                of the type of evidence that

the Commonwealth proffers to support its case, the focus of subsection

3802(a)(1) remains on the inability of the individual to drive safely due to

consumption of alcohol                                           Id.

     In Griffith, the Court was confronted with determining whether expert

testimony was required to determine whether a defendant driving under the

influence of a controlled substance or a combination thereof under

subsection 3802(d)(2), when those drugs in question were prescription

medication.   See 32 A.3d at 1233.     In holding that the need for expert



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testimony is not mandated by the plain language of subsection 3802(d)(2),

Justice McCaffery, again writing for the majority, compared the provisions of

the statute concerning alcohol consumption with those that concern drug

use. See id., at 1238. Determining that the General Assembly chose to

construct a similar statutory framework with regard to prohibitions against




II, or III

subsections 3802(a)(2), (b), (c) for alcohol intoxication. Id., at 1239. The

Court then found subsection 3802(d)(1), which prohibits driving if one is

                                    combination of drugs to a degree which



                                                                          Id.

                                                           certiorari, the trial

court relied upon the analogy in Griffith between subsection 3802(d)(1) and

subsections (a)(2), (b), and (c).      Extending the analogy, the trial court



test must be taken wi

legislature intended to impose the two-hour requirement on blood tests for



this interpretation to be misguided.    Although the Court in Griffith found

subsection 3802(d)(1) analogous to subsections 3802(a)(2), (b), and (c), it

did so only to the extent that these subsections require a measurement to

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blood. In so finding the Supreme Court emphasized that the plain language

                                                                 any amount

of a Schedule I controlled substance, any amount of a Schedule II or

Schedule III controlled substance that has not been medically prescribed for

the individual, or any amount of a metabolite of a controlled substance in

                 Griffiths, 32 A.3d at 1239 (emphasis in original).       By

contrast, the plan language of subsections 3802(a)(2), (b) and (c) require

                                                            within two hours

of driving.   We find the express absence of such language in subsection

3802(d) to be conspicuous.

      Much like the Supreme Court in Segida found the lack of any specific

time frame in subsection 3802(a)(1) to be indicative that the legislature did

not impose a two-hour time limit under that subsection, we find that the

absence of any such time requirement in subsection 3802(d) persuasive that

the legislature did not envision a time limit on testing for the presence of

controlled substances after driving. Our conclusion is based not only on the

                                                           Griffith. Absent

express legislative intent otherwise, we decline to impose a two-hour time

limit when testing for the presence of controlled substances where it is not




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contemplated by the unambiguous language of the statute.3 Accordingly, we

are constrained to find that the suppression of the evidence based upon a

violation of the two-hour rule in this case was in error.

       Order denying motion for writ of certiorari is reversed.                Case

remanded for proceedings consistent with this opinion.                   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2014




____________________________________________


3
    Based    upon    our    decision,   we     need   not   determine   whether the
                                                                          -hour rule
under subsection 3802(g).



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