The Morgan Law Firm is here to help you if you are facing a Pennsylvania DUI.
The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania v. William Howard Barker, Jr., Appellant,
2013 WL 3475480, 2013 PA Super 178, 1153 WDA 2010 (July 10, 2013). The
Court ruled that the arresting officer refused
to allow an alternate test in accordance with Barker’s request which
violated the mandate of 75 Pa.C.S. § 1547(i), and thus deprived him of
admissible evidence that, had it been available, would have been
relevant to the charges.
75 Pa.C.S. § 1547(i): Request by driver for test — Any person
involved in an accident or placed under arrest for a violation
of section 1543(b)(1.1), 3802 or3808(a)(2) may request a chemical test
of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.
The statute creates an imperative under section 1547(i) that if the
motorist requests one of the alternate means of chemical testing, the
officer is required to honor the request when reasonably
practicable.
Section 1547(i) vests licensed drivers with a statutory
right, the deprivation of which undermines the ability to counter the
Commonwealth’s allegations. In this case, the officer's refusal to
allow alternate testing pursuant to section 1547(i), in accordance with
Barker’s requests, was a clear violation of the statutory right
created in favor of any motorist arrested on the charge of Driving
Under the Influence.
What does reasonably practicable mean? That depends....
The statute presumes the validity of the motorist’s request and vests
the officer with discretion to decline the request only if
circumstances render the testing “incapable of being put into practice
with the available means.” Thus, this language allows the officer to
decline alternative testing only if the test requested is not within the
means available at the time the testing is sought.
By the same token,
this element of practicability acts as a safeguard against the whims of
willful motorists who might demand alternate forms of testing as
retribution upon the arresting officer: “The statutory scheme offers no
quarter to arbitrary conduct by either a motorist under arrest or the
arresting officer, but instead imposes an expectation on both that
testing shall be carried out in recognition of the practical constraints
on the officer with due regard for the motorist’s individual rights.”
Because the officer’s failure to comply with the statute violated
Barker’s statutory right to the results of the chemical testing, the
Court reversed the judgment of sentence and discharged the Appellant.
The Morgan Law Firm is ready to help you if you are facing a DUI.
The Associates, Senior Attorneys and Staff of my firm represent individuals charged with DUI throughout Pennsylvania. In every case, including those eligible for the ARD Program, we always perform a full and fair evaluation of your case.
