Appeal from JUDGMENT OF SENTENCE November 26, 1996, Docketed December 3, 1996, in the Court of Common Pleas of ARMSTRONG County, CRIMINAL, No. 1996-0089. Before NICKLEACH, J.
Before: Eakin, Schiller, and Olszewski, JJ. Opinion BY Olszewski, J. Concurring Opinion by Schiller, J.
The opinion of the court was delivered by: Olszewski
OPINION BY OLSZEWSKI, J.:
John Henry Curran, II, appeals from the November 26, 1996, judgment of sentence imposed after a jury found him guilty of driving while under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(1), and homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735. After a careful review of the record, we affirm.
Sometime after 2:00 A.M. on the morning of January 21, 1996, Curran drove his Ford pickup truck across the center line of a two-lane highway and slammed head-on into an oncoming vehicle. The driver of the other vehicle was pronounced dead at the scene. Curran was transported to a nearby hospital to be treated for his injuries. Pennsylvania State Trooper Joseph P. Murphy testified that he arrived at the hospital at 5:45 A.M. and spoke with Curran regarding how the accident occurred. During their conversation, Officer Murphy testified that Curran's breath smelled of alcohol, his speech was slurred and his eyes were bloodshot and glassy.
After Curran admitted to having "had a couple beers," Officer Murphy placed him under arrest for driving while under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731(a)(1). *fn1 The lawman requested that blood be drawn for the purpose of performing a blood alcohol content (BAC) test and was informed that such a test had been performed at 3:55 A.M., less than two hours after the accident. The test results reflected a BAC of .24%. Curran now challenges the introduction into evidence of the BAC test results "without expert testimony to relate back the blood alcohol content to the time [he] was driving." Appellant's brief at 3.
In presenting his argument, Curran correctly notes that in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), our Supreme Court vacated judgments of sentence on the basis that 75 Pa.C.S.A. § 3731(a)(4) *fn2 requires the relation back of a BAC test result to the time when the accused was driving. In so holding, the court explained that § 3731(a) (4) is "limited in its focus" as "it makes one's blood alcohol content while driving the pivotal issue." Modaffare, supra at 104, 601 A.2d at 1235 (emphasis original); Jarman, 529 Pa. at 95, 601 A.2d at 1230 (emphasis original). The Court focused upon the testimony of the Commonwealth's experts who stated, in each case, that "a person's blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after the drinking has ceased, and that, thereafter, the level declines." Modaffare, supra at 105, 601 A.2d at 1235. See Jarman, supra at 96, 601 A.2d at 1231. The Court reasoned:
The legislature has provided that blood tests conducted after suspected drunk drivers have been stopped will be used as evidence of the suspects' blood alcohol contents while driving. See generally 75 Pa.C.S. § 1547 (chemical testing to determine amount of alcohol). In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been driving, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood alcohol test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was significant, the inference is weakened.
Modaffare, supra at 105, 601 A.2d at 1235. See Jarman, supra at 95-96, 601 A.2d at 1230-31. The Supreme Court concluded that, in cases where the inference is weak, the Commonwealth must present expert testimony relating the BAC test result back to the time at which the suspect was actually driving. Without this testimony, the suspect's BAC could have been below 0.10% when he/she was driving and could have simply increased above the 0.10% threshold because of alcohol being absorbed into the suspect's blood during the delay prior to testing. Consequently, the BAC test result alone would only enable the jury to "engage in unbridled speculation as to whether appellant's blood alcohol level was at or above 0.10% at the critical time." Jarman, supra at 97, 601 A.2d at 1231. See Modaffare, supra at 106, 601 A.2d at 1236.
Instantly, however, the Commonwealth pursued prosecution under § 3731(a)(1) of the Vehicle Code and not under § 3731(a)(4). Nevertheless, Curran sees no differentiation between these two subsections and asks us to require expert relation back testimony in all DUI cases. We decline. It is well-settled that
there exists both statutory and case law authority ruling that blood alcohol content results are admissible in section 3731(a)(1) cases. Specifically, it has been determined that, "In a § 3731(a)(1) prosecution, so long as the defendant's alcohol level exceeds .05%, the Commonwealth may introduce evidence regarding that defendant's blood alcohol level." Commonwealth v. Kemble, 413 Pa. Super. 521, 526, 605 A.2d 1240, 1242 (1992) (citing Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988)), [alloc. denied, 532 Pa. 651, 615 A.2d 340 (1992)]; see 75 Pa.C.S.A. § 1574(d)(2), (3).
Commonwealth v. Kelley, 438 Pa. Super. 289, 295, 652 A.2d 378, 381 (1994). See Gonzalez, supra at 126, 546 A.2d at 31.
Moreover, "subsection (a) (1) is a general provision and provides no restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving." Commonwealth v. Loeper, 541 Pa. 393, 402-403, 663 A.2d 669, 673-674 (1995). As such, a defendant may be convicted under this subsection "despite the fact that the defendant's blood-alcohol level could not be related back to the time of the defendant's ...