Commonwealth v. Etchison , 916 A.2d 1169 ( 2007 )

OPINION BY

TODD, J.:

¶ 1 Nathan A. Etchison appeals the judgment of sentence imposed by the Butler County Court of Common Pleas following his conviction at a bench trial of driving under the influence (“DUI”) in violation of 75 Pa.C.S.A. § 3802(d)(l)(i), (2) and (3), and several summary offenses. For the reasons that follow, we affirm in part, reverse in part, and remand for re-sentencing.

¶2 On September 19, 2004, Appellant was stopped by Trooper Robert Downs of the Pennsylvania State Police after Trooper Downs observed Appellant traveling in the wrong direction on an exit ramp on Route 422 in Butler County. As he approached Appellant, the trooper detected the smell of alcohol, and attempted to administer field sobriety tests. Trooper Downs testified that Appellant failed the tests, at which time the officer transported him to the hospital for blood tests. Appellant’s blood alcohol content was .05%, and a subsequent drug screen indicated 53 na-nograms of metabolites of cannabinoids.

¶ 3 On August 17, 2005, Appellant was sentenced to 30 days incarceration and a $1000 fine. Appellant’s post-sentence motions were denied on December 14, 2005, and this appeal followed, wherein Appellant raises the following issues:

I. Did the trial court err in finding there was sufficient evidence to maintain [Appellant’s] conviction of driving under the influence when the Commonwealth failed to establish he was under the influence to a degree which impaired his ability to safely operate a vehicle?

II. Did the trial court err in upholding [Appellant’s] conviction of driving under the influence when the controlled substances section of the DUI statute, 75 [Pa.C.S.A.] § 3802(d), violates due process in that it is overbroad?

III. Did the trial court err in upholding [Appellant’s] conviction of driving under the influence when the controlled substances section of the

DUI statute, 75 [Pa.C.S.A.] § 3802(d), violates equal protection?

(Appellant’s Brief at 7.)

¶ 4 Appellant first contends that the evidence was insufficient to support his conviction under 75 Pa.C.S.A § 3802(d)(2) and (3). When presented with a claim that the evidence was insufficient to sustain a conviction,

an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 549 Pa. 352, 366, 701 A.2d 492, 499 (1997). Furthermore, “[t]he Commonwealth may sustain its burden by proving the crime’s elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence.” Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super.1997) (citations omitted).

¶ 5 We are constrained to agree with Appellant that the evidence was insufficient to support his convictions under Section 3802(d)(2) and (3).¹ Section 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:

(1) There is in the individual’s blood any amount of a:

(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.

75 Pa.C.S.A. § 3802(d)(l)-(3) (footnote omitted).

¶ 6 Appellant asserts that, under Section 3802(d)(2), the Commonwealth failed to establish that he was under the influence of a drug or combination of drugs to a degree which impaired his ability to safely operate his vehicle, noting that “[t]he Commonwealth’s expert witness testified under cross-examination that the presence of metabolites is not an indication of present impairment but only that a substance was ingested sometime previously.” (Appellant’s Brief at 11.) Our review of the record supports Appellant’s argument. Indeed, the Commonwealth presented no evidence to support a conclusion that Appellant was under the influence of a drug or combination of drugs at the time he was stopped, such that his ability to drive was impaired. Thus, we hold there was insufficient evidence to convict Appellant under Section 3802(d)(2).

¶ 7 We likewise hold that there was insufficient evidence to convict Appellant under Section 3802(d)(3), which requires that an individual be under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs his driving ability. In its opinion denying Appellant’s post-sentence motion, the trial court noted that

[t]he facts in the present case establish that [Appellant’s] car was observed turning around and headed the wrong way on the entrance ramp to State Route 422. In addition, [Appellant] had an odor of alcohol on his breath, glassy and bloodshot eyes, slurred speech, and also exhibited signs of nervousness. [Appellant] further failed the field sobriety tests. The results of the blood test indicated a BAC of .05%.

(Trial Court Opinion, 12/19/05, at 3.) While the factors cited by the trial court suggest that Appellant may have been under the influence of alcohol, because, as previously discussed, no evidence was presented to suggest that Appellant was under the influence of a drug or combination of drugs, the elements of Section 3802(d)(3), which require the combined influence of alcohol and a drug, were not met.

¶ 8 Appellant next argues that Section 3802(d)(1), under which he also was convicted, violates due process because it is overbroad and thus that his conviction under that section for the presence of prohibited metabolites should be reversed.² Appellant again points out that the Commonwealth’s witness, Dr. Charles Winek, testified that metabolites in the bloodstream are not an indication of present impairment. He further asserts that:

[w]ithout a blood test, a person may be unaware they have metabolites in their blood. Section 3802(d) allows for the conviction of an individual based solely on the presence of metabolites, regardless of actual impairment.... An individual could be sober and simply have residue of past usage in their blood.... Passive inhalation of marijuana smoke, false positives or residue in the body long after a period of impairment would all be a violation of the statute. The statute sweeps too broadly and causes conviction of both sober as well as impaired drivers.

(Appellant’s Brief at 15.)

¶ 9 Preliminarily, we note that

[t]he constitutionality of a statute is a question of law; therefore, the scope of appellate review is plenary. Commonwealth v. Moss, 852 A.2d 374 (Pa.Super.2004). “The constitutional validity of duly enacted legislation is presumed. The party seeking to overcome the presumption of validity must meet a formidable burden.” Commonwealth v. Haughwout, 837 A.2d 480, 487 (Pa.Super.2003) (citing Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001)). “A statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of a finding of constitutionality.” Commonwealth v. Mayfield, 574 Pa. 460, 466, 832 A.2d 418, 421 (2003) (internal citations and quotation marks omitted).

Commonwealth v. Costa, 861 A.2d 358, 361 (Pa.Super.2004).

¶ 10 As our Supreme Court has explained, “[a] statute is ‘overbroad’ if by its reach it punishes constitutionally protected activity as well as illegal activity.” Commonwealth v. Band, 545 Pa. 297, 305, 681 A.2d 162, 165 (1996). If it does not reach both categories of activity, “then the over-breath challenge must fail.” Costa, 861 A.2d at 362. There is no constitutional right to the use of marijuana prior to driving; indeed, under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et. seq., which has not been deemed unconstitutional, an individual is prohibited from any use of marijuana. Thus, Appellant’s challenge to 75 Pa.C.S.A. § 3802(d)(1) must fail.

¶ 11 Finally, Appellant argues that Section 3802(d)(1) is unconstitutional in that it violates equal protection.³ Specifically, Appellant argues that while the Commonwealth has a legitimate interest in keeping the roadways safe by prosecuting impaired drivers, “this statute would allow for the prosecution of a non-impaired driver. It is not rationally related to its interest of keeping roadways safe.” (Appellant’s Brief at 16.)

¶ 12 When presented with a claim that a statute violates the equal protection clause, where the case “does not involve a fundamental right or suspect class and does not involve an important right or sensitive classification, our inquiry rests upon whether there exists a rational basis for the classification.” Commonwealth v. McCoy, 895 A.2d 18, 34 (Pa.Super.2006) (citing Commonwealth v. Etheredge, 794 A.2d 391, 396 (Pa.Super.2002)). Further,

[t]he essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly. However, it does not require that all persons under all circumstances enjoy identical protection under the law. The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment, and does not require equal treatment of people having different needs. The prohibition against treating people differently under the law does not preclude the Commonwealth from resorting to legislative classifications, provided that those classifications are reasonable rather than arbitrary and bear reasonable relationship to the object of the legislation. In other words, a classification must rest upon some ground of difference which justifies the classification and have a fair and substantial relationship to the object of the legislation. Judicial review must determine whether any classification is founded on a real and genuine distinction rather than an artificial one. A classification, though discriminatory, is not arbitrary or in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification. In undertaking its analysis, the reviewing court is free to hypothesize reasons the legislature might have had for the classification. If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom of the distinction.

McCoy, 895 A.2d at 34-35 (citing Etheredge, supra.)

¶ 13 We reject Appellant’s assertion that Section 3802(d)(1) violates equal protection, as there is no legislative classification upon which to base such an argument. As noted previously, a conviction under Section 3802(d)(1) does not require that a driver be impaired; rather, it prohibits the operation of a motor vehicle by any driver who has any amount of specifically enumerated controlled substances in his blood, regardless of impairment. All drivers are treated the same. Accordingly, we find that Appellant’s equal protection challenge lacks merit.

¶ 14 For all of the foregoing reasons, we affirm Appellant’s conviction and judgment of sentence under Section 3802(d)(1)®, and reverse Appellant’s convictions under Section 3802(d)(2) and (3) and discharge him as to those charges. As our disposition may have disturbed the trial court’s sentencing scheme, however, we remand for resentencing. See Commonwealth v. Roche, 783 A.2d 766, 773 (Pa.Super.2001) (remanding for resentencing where vacating of one of multiple convictions may have disturbed trial court’s sentencing scheme).

¶ 15 Judgment of sentence AFFIRMED IN PART and REVERSED IN PART. Case REMANDED. Jurisdiction RELINQUISHED.

¶ 16 BENDER, J. files a Concurring and Dissenting Opinion.

1 . Appellant does not challenge the sufficiency of his conviction under Subsection 3802(d)(l)(i), although in his argument that Section 3802(d)(1) is unconstitutional, infra, Appellant notes that it is Section 3802(d)(l)(iii) as opposed to Section (d)(l)(i), which prohibits driving when metabolitics of a controlled substance are present in the blood. We do not find this undeveloped commentary sufficient to preserve a sufficiency challenge under Section 3802(d)(l)(i).

2 . Throughout his brief Appellant does not specify whether his due process and equal protection arguments are based on the Pennsylvania or the United States Constitution. Such omission does not affect our analysis or disposition.

3 . See note 2, supra.