Appeal from the Judgment of Sentence entered June 7, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006360-2009
BEFORE: STEVENS, P.J., BENDER, J., BOWES, J., GANTMAN, J., DONOHUE, J., ALLEN, J., OLSON, J., OTT, J., and WECHT, J.
William Barker, a/k/a William Howard Barker, Jr., appeals from the judgment of sentence of six months' probation and a $1000 fine following his conviction of Driving Under the Influence of a Controlled Substance (DUI) and the summary offense of Operating a Vehicle Without Official Certification of Inspection. See 75 Pa.C.S. § 3802(d)(2), 4703(a) (respectively). Barker contends that the Commonwealth's evidence was not legally sufficient to sustain his DUI conviction. In addition, he argues that the trial court erred in determining that he had no enforceable right to an alternative chemical test pursuant to 75 Pa.C.S. § 1547(i), inasmuch as potentially serious health complications prompted him to refuse the blood test the officer ordered. Upon review, we find the evidence legally sufficient to sustain Barker's DUI conviction. Nevertheless, we conclude as well that the arresting officer's refusal to observe his statutory right to an alternative form of chemical testing violated his express statutory right, the deprivation of which stripped him of any ability he may have had to respond to the charges at issue here. Because such deprivation irreparably prejudiced Barker's ability to obtain the test at a time material to the conduct charged, and thereby stripped him of the ability to offer a defense, we are constrained to reverse the judgment of sentence and discharge the defendant.
Barker's conviction arises out of an incident of suspected drunken driving when, in the early morning hours of February 15, 2009, Officer Michael Naviglia of the Springdale Township Police observed Barker's vehicle on Freeport Road tailgating the vehicle in front of him. As Barker's vehicle approached Officer Naviglia's police cruiser, the officer noted, in addition, that it did not have a current Pennsylvania State Inspection sticker. Officer Naviglia then turned and followed the vehicle whereupon he observed that the registration sticker on the license plate had expired as well. As the officer continued to follow the vehicle, he also noted that on a single occasion the vehicle strayed a single tire width over the center line. Although there were no vehicles approaching in the opposite direction, Officer Naviglia activated his emergency lights and made a traffic stop to further investigate Barker's state of sobriety.
When Barker opened his driver's side window in response to Naviglia's summons, the officer did not detect the smell of alcohol, but rather, the "very pungent odor of cooking grease." Barker also appeared very flushed and seemed to avoid eye contact. Naviglia observed that, when he did catch Barker's gaze, the defendant's eyes were "pinpointed, " very red, and almost shut. Naviglia noted further that Barker's speech, although not slurred, was very slow, and that Barker was combative, describing Naviglia as a "dirty cop, " and phoning the Springdale Police, ostensibly to report Naviglia to another officer. Believing that Barker may have been incapable of safe driving, Naviglia determined to conduct field sobriety tests and ordered Barker from the car. As Barker got out, his movements were very slow and deliberate, prompting Naviglia to suspect that his balance and depth perception were "off" and that he was under the influence of a controlled substance.
Consistent with his observations, Officer Naviglia administered both the heel-to-toe test and finger-to-nose test, both of which Barker failed, as he was not able to walk heel-to-toe for the required distance and failed to bring his finger to the tip of his nose on two occasions, instead placing it elsewhere and then moving it. After completing the tests, Barker asked for a breathalyzer, which Officer Naviglia declined as Barker's behavior and appearance did not indicate consumption of alcohol but seemed more consistent with drugs. Accordingly, Officer Naviglia transported Barker to a nearby hospital for a blood draw. While at the hospital, however, Barker declined the blood draw, explaining that he was a brittle diabetic, and could receive only "blind" needles in the abdomen as he had previously developed an infection in his leg as a result of an injection there. Instead, Barker requested to undergo a breathalyzer, urine, or hair follicle test, all of which Officer Naviglia refused, declining the urine test in the mistaken belief that he would have to "touch" the urine. N.T., 6/7/10, at 54 (responding to counsel's question on the grounds for his refusal stating, "I'm not touching somebody's urine").
Following the conclusion of the stop, Officer Naviglia transported Barker to the home of his sister, Karen Black. Subsequently, when Barker prevailed on his sister to take him back to the hospital for a urine test, ostensibly to prove his innocence, he discovered that Officer Naviglia had not returned his driver's license and identification, thereby precluding him from qualifying for such a test. Not until the following morning, when Black drove to the police station on her brother's behalf, was Barker able to retrieve his license and identification.
Barker's case proceeded to a non-jury trial before the Honorable Randall Todd on June 7, 2010. In its case-in-chief, the Commonwealth introduced the testimony of Officer Naviglia, who attested to the details of the stop as set forth above, as well as a photograph of Barker taken on the night in question. In the defense case, Barker called his sister, Karen Black, and also testified on his own behalf. Black testified that she and Barker own a tavern in Cheswick and that Barker had worked an extended shift starting on the morning of February 14, and had been called back to the tavern to close that night, when Officer Naviglia stopped him. She also testified that as an owner of the tavern for 13 years and a bartender for 25 years prior to that, she was familiar with the signs of intoxication and had had occasion to "shut off" patrons who could no longer drive safely. She answered as well that Barker had not been drinking on the night in question and that he was a severe diabetic whose condition precluded his ingestion of alcohol or illegal drugs at all. In addition, she related that after Officer Naviglia drove Barker to her home, Barker called the hospital to arrange a blood test and also called the police department to get his identification back. Barker was not successful, however, prompting Black to drive to the police station the following morning to retrieve his driver's license and identification for him.
Barker testified on his own behalf, that he had been at the tavern from 5:00 a.m. until 6:30 p.m., preparing special fare for Valentine's Day and that he left to go to sleep with the intention of returning that night to close the tavern. He had been cooking all day and, consequently, smelled of cooking oil when Officer Naviglia stopped him. In addition, Barker conceded that he had called Officer Naviglia a "dirty cop" because he had prior encounters with Naviglia and that he knew the officer to lie. He contradicted Naviglia's version of events accordingly, offering a detailed recitation of the night's events and indicating that he had complied with instructions for each of the tests administered. When Officer Naviglia told him he had failed he appealed to other officers who had been watching. They responded that he had failed because Officer Naviglia said he had. Barker testified also that although Officer Naviglia had a drug-trained dog in his police vehicle, he never took the dog from the car.
Barker agreed with Officer Naviglia's testimony that he had refused to submit to a blood test at the hospital, but clarified his reasons, stating that he had previously received an injection at the hospital in question and had developed a severe infection that compelled his hospitalization at another facility for seven days. Barker insisted, however, that he had asked to take another test:
But the whole time I was there I was asking to take any test. I would take any test and I would pay for any test. I wanted to prove my innocence. And I said, [t]he only thing is, you're not sticking any needle in my body no more, at that hospital in particular.
I had an infection from that hospital, but I spent 7 days in West Penn.
N.T., 6/7/10, at 72. Notwithstanding Barker's repeated requests, Officer Naviglia refused to authorize a different test. Barker then told the officer he was going to return to the hospital to have a urine test as he wished to prove his innocence. Nevertheless, he was not able to obtain the test as hospital personnel would not conduct it ...