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.
The opinion of the court was delivered by: Bender, J.
Petition for Reargument Filed July 16, 2009; Petition for Reargument Denied September 11, 2009
BEFORE: LALLY-GREEN, BENDER, JJ. and McEWEN, P.J.E.
¶ 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.
¶ 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 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 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 our review:
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 ...