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COMMONWEALTH PENNSYLVANIA v. KERRY D. BOYD (05/11/88)

filed: May 11, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KERRY D. BOYD, APPELLANT



Appeal from the Judgment of Sentence February 13, 1986, in the Court of Common Pleas of Butler County, Criminal No. CA 531 of 1985, Book 81, Page 177.

COUNSEL

Vicki K. Horne, Pittsburgh, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ.

Author: Olszewski

[ 373 Pa. Super. Page 299]

Appellant, Kerry D. Boyd, appeals from a judgment of sentence imposed after appellant was found guilty by jury of driving while the amount of alcohol by weight in his

[ 373 Pa. Super. Page 300]

    blood was .10% or greater. 75 Pa.C.S.A. § 3731(a)(4). Appellant contends that the evidence was insufficient to support the verdict because the Commonwealth did not present testimony that appellant's blood alcohol was .10% or greater at the time he was driving. For reasons discussed below, we affirm the judgment of the trial court.

In the early morning hours of June 9, 1985, Officer Ronald Pate of the Penn Township Police Department observed the car that appellant was driving approaching head-on on a two-lane road. After the officer maneuvered his car onto the berm to avoid a collision, he followed appellant and observed the vehicle weave on and off the road several times. Officer Pate pulled appellant over, smelled alcohol, and performed field sobriety tests, which appellant failed to perform adequately. Thirty minutes later, at the police station, breathalyzer tests revealed .16% blood alcohol content.

Appellant was subsequently charged with driving under the influence to a degree which rendered him incapable of safe driving, 75 Pa.C.S.A. § 3731(a)(1) (Count I), and operating a vehicle while the blood alcohol content was .10% or greater, 75 Pa.C.S.A. § 3731(a)(4) (Count II). After a trial by jury on November 26 and 27, 1985, appellant was acquitted on Count I but convicted on Count II. Appellant was sentenced to forty-eight hours imprisonment.

The issue before us is whether, when prosecuting a defendant for violating 75 Pa.C.S.A. § 3731(a)(4), the Commonwealth must present expert testimony relating the blood-alcohol test result back to the time appellant was driving his car. We note, preliminarily, that a Subsection 3731(a)(4) offense contains two elements: (1) the operation of a vehicle, and (2) the presence of at least 0.10% alcohol by weight in the motorist's blood during the course of that operation. Commonwealth v. Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986), citing Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). Instantly, appellant does not dispute that he was arrested while in control of a vehicle. Therefore, the only question is whether the Commonwealth

[ 373 Pa. Super. Page 301]

    failed to offer sufficient evidence that at the time appellant was driving, his blood alcohol ...


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