Commonwealth v. Dabney

274 A.3d 1283

COMMONWEALTH of Pennsylvania

v.Franklin Roosevelt DABNEY Jr., Appellant

No. 638 MDA 2021

Superior Court of Pennsylvania.

Argued March 1, 2022

Filed May 05, 2022

Christian J. DeFilippo, Public Defender, Gettysburg, for appellant.

Robert A. Bain, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

Caroline P. Aprahamian, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY KUNSELMAN, J.:

Franklin Roosevelt Dabney, Jr. appeals from the judgment of sentence imposed following his convictions for driving under the influence (DUI) of a Schedule I controlled substance, DUI of a Schedule I controlled substance metabolite, DUI of a drug (actual impairment), careless driving, and maximum speed limits.¹ Dabney challenges, first, the denial of his petition for writ of habeas corpus wherein he argued that medical marijuana is not a Schedule I controlled substance for purposes of Section 3802(d)(1)(i) and (iii) and, second, the denial of his motion to suppress the results of the blood draw taken after his arrest for suspicion of DUI. We affirm.

The suppression court found the following facts:

1. Trooper Mark Brandt is an employee with the Pennsylvania State Police and has been a Trooper for 5 years.

2. In his career, Trooper Brandt has been involved in approximately 100 DUI investigations; approximately 50% of the investigations involved individuals suspected of driving under the influence of a controlled substance with 35%–40% involving marijuana. Trooper Brandt is familiar with the odor of raw and burnt marijuana.

3. As part of Trooper Brandt's training he was instructed in the Standardized Field Sobriety Test (SFST) and Advanced Roadside Impaired Driving Enforcement (ARIDE) training. ARIDE deals specifically with individuals suspected to be under the influence of controlled substances.

4. On April 27, 2020, Trooper Brandt was stationary on Route 15 in Tyrone Township, Adams County, Pennsylvania, in full uniform and in an unmarked police vehicle conducting radar and clocked a blue Hyundai Sonata traveling 93 miles per hour in a 65 mile per hour zone.^[2]

5. Trooper Brandt conducted a traffic stop of the Hyundai Sonata in Tyrone Township. [Dabney] was driving the vehicle and there was a front and back seat passenger in the vehicle.

6. Other than speeding, trooper Brandt did not observe any other erratic driving and [Dabney] safely stopped his vehicle.

7. Trooper Brandt was wearing a disposable mask for Covid-19 precaution and detected the faint odor of raw marijuana as he approached [Dabney's] vehicle.

8. Upon request from Trooper Brandt, [Dabney] properly provided all documents and information.

9. Trooper Brandt returned to his police vehicle and prepared a citation for speeding. Trooper Brandt reapproached the vehicle and had contact with [Dabney] while [Dabney] was seated in the driver's seat. While speaking with [Dabney], Trooper Brandt noticed a strong odor of raw marijuana coming from inside the vehicle. [Dabney] denied having marijuana in the vehicle. [Dabney] produced a medical marijuana card and related the odor of marijuana is probably from his clothes.

10. Trooper Brandt directed [Dabney] and the two passengers to exit the vehicle. Trooper Brandt and Trooper [Clay] Forcey conducted a warrantless probable cause search of [Dabney's] vehicle. Trooper Brandt observed flakes of suspected marijuana around the center console and front passenger seat. Trooper Forcey located a white plastic shopping bag containing three individually packaged clear plastic bags containing suspected marijuana in the vehicle's trunk.

11. While interacting with [Dabney], Trooper Brandt observed that [Dabney's] eyes were dilated and red.

12. Trooper Brandt requested SFST tests and [Dabney] agreed. Trooper Brandt conducted the [Horizontal Gaze Nystagmus (HGN)] test, walk and turn test, and one leg stand test.

13. During the walk and turn test Trooper Brandt observed [Dabney] raise his arms, stop briefly during the test, and not count correctly. These were all indicators that [Dabney] might be impaired.

14. During the one leg stand test, Trooper Brandt observed [Dabney] improperly lift his leg, sway and improperly put his foot down, all indicators of impairment.

15. Trooper Brandt also conducted two ARIDE tests, the lack of convergence test and the Romberg balance test. Trooper Brandt observed a lack of convergence with [Dabney's] eyes,^[3] observed eyelid tremors during the Romberg balance test and observed [Dabney] did not properly estimate the proper time period for the test, all indicators of impairment.

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18. Trooper Brandt placed [Dabney] under arrest for suspected driving under the influence of a controlled substance. [Dabney] was transported to Gettysburg Hospital for a blood test.

Trial Court Opinion, 1/29/21, at 2–3. Dabney's blood contained active marijuana compounds and metabolites. In addition to the above offenses, Dabney was charged at Counts 1, 2, and 3 with violation of the Medical Marijuana Act, possession of marijuana, and possession of a small amount of marijuana.⁴

On November 9, 2020, Dabney filed an omnibus pre-trial motion to suppress and petition for writ of habeas corpus . The suppression court heard the matter on December 14, 2020, and the parties filed briefs on January 12 and 13, 2021. The Commonwealth agreed to the suppression of the marijuana found in the vehicle.

On January 29, 2021, the suppression court denied Dabney's motion to suppress based on Trooper Brandt's lack of probable cause to arrest and the petition for writ of habeas corpus . Based on the Commonwealth's concession, the suppression court granted Dabney's motion to suppress the fruits of the vehicle search. The Commonwealth withdrew Counts 1, 2, and 3.

The case proceeded to a non-jury trial on May 4, 2021 based on a stipulated record, where the court found Dabney guilty on all remaining counts. The court sentenced Dabney the same day. Dabney timely appealed, raising the following two issues for our review:

1. Did the lower court err in determining that [Dabney's] valid prescription for Medical Marijuana, and the legal ingestion thereof, did not prevent prosecution under sections 3802(d)(1)(i) and 3802(d)(1)(iii) of the Vehicle Code?

2. Did the lower court err in determining that there was sufficient probable cause to arrest [Dabney] for driving Under the Influence and should have suppressed the subsequent blood draw of [Dabney]?

Dabney's Brief at 4.

I. Medical Marijuana Is a Schedule I Controlled Substance.

Dabney first argues that marijuana that is ingested pursuant to the Medical Marijuana Act, 35 P.S. §§ 10231.101 – 10231.2110 (MMA), is not a controlled substance within the meaning of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 – 780-144 (CSA) (also called the Drug Act), and therefore he could not be prosecuted for DUI under 75 Pa.C.S.A. § 3802(d)(1) based on medical marijuana in his blood.⁵

Dabney's issue is one of statutory interpretation. Our standard of review is well-settled:

Statutory interpretation is a question of law, therefore our standard of review is de novo , and our scope of review is plenary. Commonwealth v. Hall , 622 Pa. 396, 80 A.3d 1204, 1211 (2013). "In all matters involving statutory interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. , which provides that the object of interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." Commonwealth v. McCoy , 599 Pa. 599, 962 A.2d 1160, 1166 (2009) (citation omitted).

Generally, a statute's plain language provides the best indication of legislative intent. Id. We will only look beyond the plain language of the statute when words are unclear or ambiguous, or the plain meaning would lead to "a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S. § 1922(1). Therefore, when ascertaining the meaning of a statute, if the language is clear, we give the words their plain and ordinary meaning. Hall , 80 A.3d at 1211.

Commonwealth v. Torres–Kuilan , 156 A.3d 1229, 1231 (Pa. Super. 2017) (quoting Commonwealth v. Popielarcheck , 151 A.3d 1088, 1091–92 (Pa. Super. 2016) ).

The Vehicle Code provides that

[a]n 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 [CSA];

(ii) Schedule II or Schedule III controlled substance, as defined in [the CSA], which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1).⁶ "The fact that a person charged with [DUI] is or has been legally entitled to use alcohol or controlled substances is not a defense to a charge of [DUI]." 75 Pa.C.S.A. § 3810.

The CSA defines schedules of controlled substances in relevant part as follows:

The following schedules include the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated.

(1) Schedule I. In determining that a substance comes within this schedule, the secretary shall find: a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision. The following controlled substances are included in this schedule:

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(iv) Marihuana.

35 P.S. § 780-104.⁷

Prior to enactment of the MMA, we rejected a challenge to marijuana's classification as a Schedule I controlled substance based on its medical use in the United States:

[T]here is no requirement that the Schedule I substances listed under 35 P.S. § 780-104 continuously conform to the standard that there be "a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use

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