Commonwealth Failed to Establish a Prima Facie Case of Elevated Blood Alcohol Level Within Two Hours After Driving

In Commonwealth v. Starry, Michelle Starry was charged with a driving while intoxicated under Section © of Section 3 802 of the Vehicle Code. At trial, she claimed that the Commonwealth failed to establish a prima facie case that her blood alcohol level was 0.16 percent or greater within two hours after driving.

Ms. Starry was involved in a single car accident but not seen driving her vehicle by investigating officers. The accident took place between 11:00 a.m. and 11:49 a.m. Blood was drawn at 1 :40 p.m. Her blood alcohol content was .304 percent. As a result, she was arrested and charged with driving under the influence of alcohol. The trial court dismissed the case because the testing took place outside the two hour window as required by the statute. The trial court further reasoned that the Commonwealth could not establish that Ms. Starry had not consumed alcohol between the time of the accident and the time investigating officers arrived on the scene.

On appeal, the Superior Court reversed the trial court, reasoning that the severity, timing and location of the accident gave rise to the reasonable inference that the accident had occurred at or near the time of its first report at 11:49 a.m. The Court also took into account Ms. Starry’s elevated blood alcohol content.

Under Section 3802 © of the Vehicle Code, a person commits the offense of driving under the influence- highest rate of alcohol if he/she operates a vehicle after imbibing a sufficient amount of alcohol 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. This approach was designed to eliminate difficulties in trying to relate blood and breath tests back to the time of driving.

The previous relation-back cases decided by the Court involved relating a blood test result back to the time of driving to charge an individual under the general impairment section of the statute. Here, in a case of fust impression, the Court faced the issue of whether the Commonwealth could attempt to establish a relation back to the two-hour window in order to prove a measurable blood alcohol level. The Court found that there was nothing in Section 3802 © that prohibited it from doing so and the ordinary rule that the Commonwealth may prove its case by circumstantial evidence was applicable. The Court went on to conclude that the Commonwealth established probable cause that Ms. Starry committed the Section 3802 © offense and that a factfinder would be within its province to determine that her blood alcohol content was at least 0.16 percent within two hours after driving.

The Court found that there was no reason to distinguish between relation back to the time of driving relative to general impairment offenses and relation back to the statutory two-hour window for a per se offense. In either instance, test results served as circumstantial evidence of the defendant’s blood alcohol level in the relevant time period.

The Court explained that, in some cases, expert testimony is required to establish the level of intoxication of the driver. When a driver’s blood alcohol content is not significantly over the threshold for illegality and/or a substantial period has elapsed between testing and the time of driving, expert testimony is generally required to support weak inferences. By contrast, a strong inference of guilt can be drawn where there is a substantially elevated test result and the sample was taken relatively close to the time of driving. Expert testimony is not necessary to support such strong inferences.

The Court went on to state that the Legislature prescribed a rule that is conditioned on the conduct of driving at a level of .16 percent or greater, not on the specific timing of testing. Nothing in Section 3802 suggested to the Court an intention on the part of the General Assembly to negate the straightforward application of the Pennsylvania Rules of Evidence.

This case is consistent with the Court’s previous rulings on issues related to driving under the influence. All presumptions made by the Court seem to favor the Commonwealth and be against the operator of the vehicle.