The Pa Superior Court held that expert opinion necessary to uphold motorist’s conviction for driving under the influence of controlled substances under 75 Pa.C.S. § 3802(d)(2). the Court held that introduction of lay testimony of erratic driving insufficient as a matter of law to sustain commonwealth burden of proof in drug interaction case.
2009 PA Super 120
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
MICHELLE NECOLE GRIFFITH, :
Appellant : No. 1315 MDA 2008
Appeal from the Judgment of Sentence June 25, 2008
In the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003318-2006
BEFORE: LALLY-GREEN, BENDER, JJ. and McEWEN, P.J.E.
OPINION BY BENDER, J.: Filed: July 2, 2009
¶ 1 Michelle Necole Griffith appeals the judgment of sentence imposed
following her conviction of Driving Under the Influence of a Controlled
Substance. 75 Pa.C.S. § 3802(d)(2). Griffith contends that the trial court
erred in refusing to suppress prescription medication seized from the
defendant’s car after police transported her to a local hospital for blood
testing. Griffith also asserts that the evidence adduced at trial was not
sufficient to sustain a conviction under section 3802(d)(2), as the
Commonwealth did not introduce expert testimony to establish that the
medications found in her bloodstream could have impaired her ability to
drive safely. Upon review, we concur in Griffith’s conclusion that the
evidence was not sufficient to sustain her conviction under section
3802(d)(2). Accordingly, we reverse said conviction, vacate the judgment of
sentence, and remand this matter for re-sentencing.
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¶ 2 The trial court, sitting as finder of fact, related the salient facts of this
case as follows:
On May 5, 2006, at approximately 3:00 p.m. Officer William
Dillman of the North Berks Regional Police Department was
dispatched to investigate an orange Mitsubishi Eclipse that was
driving recklessly. Officer Dillman located the orange Mitsubishi
Eclipse in the parking lot of Penn Biomedical Support, Inc. The
driver of the vehicle was identified as Michelle Necole Griffith,
the Defendant. Officer Dillman immediately recognized the
Defendant from prior contacts and personally knew that her
driver’s license was suspended.
Sergeant David Reichlein arrived on scene to assist Officer
Dillman with the traffic stop of the Defendant. Sergeant
Reichlein also immediately recognized the Defendant from prior
contacts. Officer Dillman placed the Defendant under arrest for
driving under the influence based on his observations of the
Defendant and her performance during field sobriety testing, as
well as information he had received from a complainant
pertaining to the Defendant’s extremely erratic driving.
After being advised of her rights, the defendant admitted to
taking one medically prescribed Soma earlier in the day. Soma
is also known as Carisoprodol. Prior to being placed in the back
of the police vehicle for transport to St. Joseph’s Medical Center
the Defendant asked the officers to take care of her dog, which
had been sitting in her vehicle during the encounter. The
officers agreed and the Defendant gave Sergeant Reichlein her
keys so he could run the air conditioning for the dog.
The Defendant was then transported to Saint Joseph’s Medical
Center where, after being advised of her rights, she consented to
have a legal blood sample drawn for chemical testing purposes.
After the Defendant was transported from the scene Sergeant
Reichlein entered the Defendant’s vehicle to run the air
conditioning for the Defendant’s dog.
Upon entering the Defendant’s vehicle, Sergeant Reichlein
observed what he immediately recognized to be prescription pill
bottles in the open center console. Sergeant Reichlein picked up
the prescription bottles and read the prescription label that
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stated the pills were Carisoprodol, also known as Soma, and
they were prescribed to the Defendant. Sergeant Reichlein
seized all the prescription bottles and turned them over to
Officer Dillman. Officer Dillman then called Saint Joseph’s
Medical Center six (6) times. During the fourth call Officer
Dillman informed the lab that the prescription seized from the
Defendant’s vehicle was Carisoprodol. Due to the nature of the
standard chemical testing, Carisoprodol is not regularly screened
for and must be specifically tested for in order to determine its
presence. Officer Dillman specifically requested Saint Joseph’s
test for Carisoprodol during his fourth call. The Defendant’s
blood contained 220 ng/ml of Nordiazepam.
Trial Court Opinion, 8/29/08, at 3-4.
¶ 3 Following her arrest, the Commonwealth charged Griffith with driving
under the influence of a controlled substance, reckless driving, careless
driving, driving on roadways laned for traffic, and driving while operating
privilege is suspended or revoked. Following a preliminary hearing, Griffith
filed a motion to suppress the pill bottles seized from the console of her car
as well as the results of the blood test that police requested after the
seizure, which verified the presence of Diazepam and Nordiazepam in
Griffith’s blood. The trial court denied Griffith’s motion and, on March 7,
2007, convened a non-jury trial. At trial, both counsel stipulated the
presence of the foregoing medications in Griffith’s blood at therapeutic
levels. In addition, the Commonwealth presented the testimony of Teresa
Franke, the motorist who had alerted the police to Griffith’s driving, and
William H. Dillman, the officer who conducted the stop. Following the
completion of the Commonwealth’s case, Griffith elected not to testify and
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presented no other evidence. The court then found Griffith guilty as charged
and deferred sentencing pending preparation of an updated pre-sentence
report. Thereafter, the court imposed a sentence of ninety days’ to five
years’ imprisonment for driving under the influence of a controlled
substance, and a concurrent term of sixty to ninety days’ imprisonment for
driving under suspension—DUI related. Griffith did not file a post sentence
motion. Griffith has now filed this appeal, raising the following questions for
A. Whether evidence of prescription pain medication obtained
by police should have been suppressed when the same
was obtained by way of unlawful search and seizure?
B. Whether the results of Appellant’s blood sample should
have been suppressed, when said results were tainted by
and [a] result of the unlawful search and seizure described
C. Whether the Commonwealth presented sufficient evidence
to demonstrate all elements of the crimes for which
Appellant was convicted, particularly 75 Pa.C.S.A.
3802(D)(2), given the fact that no qualified or competent
testimony was offered to demonstrate that the prescription
drugs possessed by Appellant, which were schedule IV
prescription medications, had any effect on her ability to
safely drive, operate or be in actual physical control of the
movement of a vehicle?
Brief for Appellant at 5 (capitalization minimized to improve readability).
¶ 4 Before proceeding with the merits of Griffith’s claims, we observe that
her third question, which challenges the legal sufficiency of the evidence to
sustain her DUI conviction, is potentially dispositive of this appeal.
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Regardless of whether the evidence was unlawfully obtained, as Griffith
argues in support of her first and second questions, a finding that that same
evidence was not sufficient to sustain the conviction she challenges would
obviate any need to review the trial court’s suppression order. Accordingly,
we commence our review with the challenge to the sufficiency of the
evidence asserted in Griffith’s third question. Brief for Appellant at 17.
¶ 5 As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record “in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence.” Commonwealth v. Widmer, 744 A.2d
745, 751 (Pa. 2000).
“Evidence will be deemed sufficient to support the verdict when
it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable
doubt.” Nevertheless, “the Commonwealth need not establish
guilt to a mathematical certainty,” and may sustain its burden by
means of wholly circumstantial evidence. Significantly, “[we]
may not substitute [our] judgment for that of the factfinder; if
the record contains support for the convictions they may not be
Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)
(citations omitted). So long as the evidence adduced, accepted in the light
most favorable to the Commonwealth, demonstrates the respective elements
of a defendant’s crimes beyond a reasonable doubt, his convictions will be
upheld. See Brewer, 876 A.2d at 1032. Any doubt about the defendant’s
guilt is to be resolved by the fact finder unless the evidence is so weak and
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inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances. See Commonwealth v. De Stefano,
782 A.2d 574, 582 (Pa. Super. 2001).
¶ 6 The conviction challenges arose from application of the specific
requirements of 75 Pa.C.S. § 3802(d)(2), and may be affirmed only to the
extent that the evidence adduced established beyond a reasonable doubt
that her conduct was proscribed by its provisions. Section 3802(d) defines
the circumstances under which an individual who has consumed controlled
substances alone or in combination or in combination with alcohol may not
operate a motor vehicle. That section provides as follows:
§ 3802. Driving under influence of alcohol or controlled
* * * *
(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), [FN1] 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
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(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
75 Pa.C.S. § 3802(d) (emphasis added).
¶ 7 Notably, this section draws a distinction between driving under the
combined influence of alcohol and controlled substances, see § 3802(d)(3)
and driving under the influence of controlled substances alone, without the
influence of alcohol, see § 3802(d)(2). Although our Courts have had
limited opportunity to develop a body of decisional law surrounding these
inherent differences,1 we have observed that the effect of controlled
substances on the ability of an individual to operate a motor vehicle is not
within the ken of the average layperson and thus is properly the subject of
expert testimony. See Commonwealth v. Etchison, 916 A.2d 1169,
1172-73; see also id. at 1175 (Bender, J., concurring) (“The effect of
marijuana upon an individual and the significance of finding 53 nanograms
1 Our research has revealed no appellate decision in which a defendant’s
conviction under section 3802(d)(2) was based upon ingestion of
prescription medication alone.
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of cannabinoids per milliliter is not a matter within the realm of a layperson.
As such, expert testimony was necessary to draw a nexus from the findings
¶ 8 The need of expert testimony to establish a cause and effect
relationship between ingestion of a controlled substance and inability to
operate a motor vehicle is at the heart of Griffith’s argument here. Relying
on Etchison, Griffith argues that the Commonwealth produced no testimony
to establish that her admitted use of a prescription dose of Soma
(carisoprodol) or the therapeutic levels of diazepam and nordiazepam in her
blood rendered her unable to safely operate a motor vehicle.2 Brief for
Appellant at 17. The Commonwealth concedes the absence from the record
of any expert testimony on the effect of Griffith’s medications on her ability
to operate a motor vehicle but contends that the evidence of her erratic
driving coupled with the presence of controlled substances in her
bloodstream allows an inference of impairment sufficient to sustain her
conviction under section 3802(d)(2). Brief for Appellee at 11 (“Although
there was no expert evidence presented regarding the effect of these levels
of controlled substances on her motor skills, the record demonstrates that
Griffith was not in control of her body movements or her automobile at any
2 Although Griffith admitted having taken a therapeutic dose of carisoprodol
on the morning of this incident, the blood draw, conducted at 4:41 p.m., did
not indicate the presence of that medication in her blood stream.
– 9 –
time during this incident.”). The Commonwealth reasons further that
“[b]ecause no other explanation was provided for [Griffith’s] lack of selfcontrol
or dangerous driving behavior, the trial court properly concluded that
these actions were the result of her consumption of controlled substances.”
¶ 9 The trial court, concurring in the Commonwealth’s position, cited our
holding in Commonwealth v. Smith, 831 A.2d 636 (Pa. Super. 2003), to
establish that expert testimony need not be produced to sustain a conviction
under a companion provision of section 3802 where the defendant has
consumed alcohol and used a prescription medication. Trial Court Opinion,
8/29/08, at 8-9. The court concluded further that in the absence of expert
testimony, the evidence concerning Griffith’s erratic driving and her physical
state during field sobriety testing amply established that her use of the
medications found in her bloodstream rendered her incapable of safely
operating a motor vehicle. Id. at 9 (“Clearly the evidence presented with
respect to Appellant’s driving suggests that she was unable to exercise
judgment, to deliberate or to react prudently to changing circumstances and
conditions. In addition, the evidence presented with respect to her physical
faculties and her extremely poor performance during the administration of
field sobriety tests indicates that she was under the influence of a controlled
substance to a degree which rendered her incapable of safe driving.”).
– 10 –
¶ 10 We need not quarrel with the trial court’s conclusion that Griffith was
incapable of safe driving on the afternoon in question, when police
responded to a 911 call and found her unable to pass field sobriety tests.
Both the testimony of the arresting officer and that of the motorist who first
observed Griffith’s driving documented Griffith’s condition and actions.
Based on that testimony, the trial court could and did find her guilty of
reckless driving, careless driving, driving on roadways laned for traffic, and
driving while operating privilege is suspended or revoked. Nevertheless, we
reject the court’s conclusion that the circumstantial evidence of Griffith’s
conduct coupled with the presence of prescription medication in her blood
stream was sufficient to sustain a conviction for DUI under section
3802(d)(2) in the absence of expert testimony. In this regard, our holding
in Smith is distinguishable and therefore of limited persuasive value in
informing our decision here.
¶ 11 In Smith, a panel of this Court addressed the claims of a defendant
convicted of simple DUI, having operated a vehicle under the influence of
alcohol. Id. at 637 (citing 75 Pa.C.S. § 3731 (a)(1), repealed by 2003,
Sept. 30, P.L. 120, No. 24, § 14, effective Feb. 1, 2004). On appeal, the
defendant argued that the trial judge erred in refusing to recognize a
defense of involuntary intoxication based on her assertion that a medically
prescribed duragesic patch amplified the effect of alcohol she consumed and
rendered her intoxicated. Id. at 638-39. The defendant grounded her claim
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in the assertion that she should not be held culpable for the effect of a
prescription medication in combination with alcohol when she had not known
of a potential synergistic effect. Id. at 640. Nevertheless, she failed to
introduce expert testimony to establish that such an effect had occurred or
could occur. Id. We concluded accordingly, that regardless of whether the
defense of involuntary intoxication would be accepted in Pennsylvania, the
defendant had not introduced sufficient evidence to establish her defense:
To absolve Appellant of criminal behavior by the complete
defense of involuntary intoxication, she had the burden to show
such intoxication by a preponderance of the evidence. If this
defense is to be relied upon, Appellant must show that the
combination is capable of causing the extreme intoxication which
is alleged. The trial court cannot take judicial notice of this fact.
Thus, at a minimum it will be necessary to present expert
witnesses to establish this effect. Here, the only evidence of
record is Appellant’s self-serving statements that she had not
read any of the labeling and was not told by her doctor of any
possible side effects and thus was unaware of the alleged
heightened effect of the patch when combined with alcohol
consumption. Appellant did not present her physician or any
other medical expert to establish that an increased inebriating
effect was even possible. It follows that Appellant has not come
close to putting the integrity of the conviction into question.
Id. at 641 (internal citations omitted).
¶ 12 Our holding in Smith in no way undermines Griffith’s position here.
Unlike the defendant in Smith, who asserted a defense and therefore bore a
burden of persuasion to establish her claim by a preponderance of the
evidence, Griffith challenges the sufficiency of the evidence to sustain her
conviction from the outset. The burden of proof remained with the
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Commonwealth throughout the proceedings in the trial court, compelling the
prosecution to establish the elements specified by section 3802(d)(2)
beyond a reasonable doubt. Those elements include not merely the
defendant’s “[in]ability to safely drive, operate or be in actual physical
control of the movement of the vehicle,” but also that the defendant’s
impairment was caused by the influence of a drug or combination of drugs.
For this task, circumstantial evidence upon which the Commonwealth and
the trial court relied is not in itself enough where, as here, blood testing
verified the presence of prescription medication only.
¶ 13 As we suggested in Smith and later echoed in Etchison, such an
evidentiary demarcation is necessitated by the inability of the trial court or
any member of the jury to take notice of the effect of prescription
medication on the human body, either alone or in combination with another
controlled substance, in the absence of expert testimony. Whereas the
intoxicating effect of alcohol is widely known and recognized by the average
layperson, see Smith, 831 A.2d at 640, the same cannot be said of
prescription medications, either alone or in combination with other controlled
substances, see Etchison, 916 A.2d at 1175 (Bender J. concurring) (opining
that expert testimony is necessary to establish that low level of cannabinoids
present in the defendant’s bloodstream rendered him incapable of safely
operating a motor vehicle so as to sustain conviction under sections
3802(d)(2), (3)). Thus, while the factfinder (either a lay jury or a trial judge
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presiding over a non-jury trial) may reach a cause and effect determination
on circumstantial evidence that the defendant was rendered incapable of
safe driving due to consumption of alcohol, it must be afforded expert
testimony concerning the effects and interactions of prescription medications
where such medications are the alleged intoxicants. Without such
testimony, the effects or interactions of the medications at issue are
rendered uncertain, inviting the factfinder to assume the effect of a
controlled substance based merely on the fact that the defendant’s conduct
followed his ingestion of the controlled substance, or worse, the absence of
any other explanation for his conduct. Although such inferences may be
acceptable in the civil arena, subject to a lesser standard of proof and more
limited constitutional protections, their insertion into a criminal prosecution
imposes an unacceptable burden upon the defendant, who has no obligation
to disprove the Commonwealth’s case or posit any explanation for his
¶ 14 In this case, the Commonwealth introduced only fact testimony, calling
the motorist who witnessed Griffith’s erratic driving and the police officer
who responded to the scene and conducted the arrest. Although the officer
was able to observe and report on Griffith’s condition and to reach a
conclusion that she was not able to safely operate a motor vehicle, he was
neither able nor qualified to testify concerning drug interactions or effects.
In point of fact, the Commonwealth elicited no testimony concerning the
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medications at trial, instead confining its examination to the defendant’s
condition and the results of her blood test. Thus, the factfinder had no
evidence on which to base a finding that Griffith’s erratic driving was the
result of her ingestion of carisoprodol, diazepam, or nordiazepam, either
singly or in combination. The fact that Griffith displayed physical symptoms
out of the ordinary does not, in and of itself, establish a sufficient basis for
finding a causal link with ingestion of any particular drug. In the absence of
expert testimony, the factfinder might have concluded just as easily that
Griffith’s physical symptoms were the result of the illness or condition the
medications had been prescribed to treat.3 Thus, while the evidence
adduced may have established Griffith’s guilt of careless driving, reckless
driving and driving on roadways laned for traffic, it was not sufficient to
prove her guilt of driving under the influence of controlled substances
pursuant to 75 Pa.C.S. § 3802(d)(2).
¶ 15 Because the evidence adduced was not sufficient to sustain the
conviction Griffith challenges, the issue of the legality of police action in
obtaining that evidence is rendered moot on the facts of this case.
Accordingly, we need not address Griffith’s first two questions.
3 Although the record establishes that Griffith’s medications were dispensed
by licensed pharmacies by prescription of her physicians, it does not
establish her underlying physical conditions or illnesses.
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¶ 16 For the foregoing reasons, we reverse Griffith’s conviction under 75
Pa.C.S. § 3802(d)(2).
¶ 17 Conviction under 75 Pa.C.S. § 3802(d)(2) REVERSED. Judgment of
sentence VACATED. Case REMANDED for re-sentencing consistent with
¶ 18 Judge Lally-Green files a dissenting statement.
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
MICHELLE NECOLE GRIFFITH, :
Appellant : No. 1315 MDA 2008
Appeal from the Judgment of Sentence entered on
June 25, 2008 in the Court of Common Pleas of Berks County,
Criminal Division, at No. CP-06-CR-0003318-2006.
BEFORE: LALLY-GREEN, BENDER, JJ., and McEWEN, P.J.E.
DISSENTING STATEMENT BY LALLY-GREEN, J.:
¶ 1 While the majority sets forth a persuasive rationale in support of its
result, I respectfully dissent.
¶ 2 I believe the Commonwealth presented sufficient evidence in support
of Appellant’s conviction under 75 Pa.C.S.A. § 3802(d)(2). As the trial court
found, Appellant exhibited erratic driving prior to the traffic stop. She
admitted to police that she ingested controlled substances. After police
stopped her, Appellant’s hands were too shaky to light a cigarette and she
failed three field sobriety tests. I believe the evidence of record is sufficient
to support a finding, beyond reasonable doubt, that Appellant violated
¶ 3 Further, I would not announce a rule requiring the submission of
expert testimony. Here, the record hints of no explanation for Appellant’s
conduct other than her ingestion of drugs. Our case law is clear that expert
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testimony is not a necessary part of proof of a violation under § 3802(d)(2)
in all cases.
¶ 4 Moreover, I would reject Appellant’s argument that the seizure of
several prescription pill bottles was not warranted under the plain view
doctrine. Appellant asked a police officer to enter her car to care for her
dog. Upon entering Appellant’s vehicle, the officer observed, in plain view,
several open pill bottles in the center console of Appellant’s car. The officer
immediately recognized them as containing controlled substances. The
officer knew, at the time of the seizure of the open pill bottles, that
Appellant had admitted to ingesting controlled substances prior to driving.
Under these circumstances, the officer had probable cause to believe that
the pill bottles were evidence of Appellant’s commission of a crime. Thus, he
was justified in seizing them under the plain view doctrine.
Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995).1
¶ 5 Since I believe that none of Appellant’s arguments warrants relief, I
would affirm the judgment of sentence. Accordingly, I respectfully dissent.
1 Appellant also argues that the blood test should be suppressed because it came about
only as a result of the illegal seizure of the pill bottles. Since I believe the seizure of the pill
bottles was proper, I would conclude that this argument lacks merit.
¶ 15 Because the evidence adduced