Commonwealth v. Schaeffer

COMMONWEALTH OF PENNSYLVANIA Appellant v. ASHLEY MARIE SCHAEFFER

J-S79019-18

No. 485 MDA 2018

SUPERIOR COURT OF PENNSYLVANIA

MAY 10, 2019

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 7, 2018

In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000168-2017

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:

The Commonwealth of Pennsylvania (Commonwealth), appeals from the order entered on March 7, 2018, granting a motion to suppress filed by Ashley Marie Schaeffer (Schaeffer) that precluded the admissibility of blood tests regarding two chemical compounds, Buprenorphine and Norbuprenorphine,¹ allegedly found in her bloodstream following a motor vehicle accident.² Upon review, we affirm.

We briefly summarize the facts of this case, as set forth in the affidavit of probable cause. The Commonwealth charged Schaeffer with one count of driving under the influence (DUI) of a combination of controlled substances - Xanax, Buprenorphine, and Norbuprenorphine, as well as, three counts each of endangering the welfare of children and recklessly endangering a person.³ The charges stemmed from an incident on July 15, 2016, wherein police responded to a one-car accident on Hastings Street in Lycoming County. When a police officer arrived, he allegedly found Schaeffer standing next to a car that had struck a fire hydrant. When asked if there were additional passengers, Schaeffer purportedly told the officer that her twin daughters and their friend were in the vehicle during the accident, but she had taken the three minor girls to a nearby apartment after the crash. Schaeffer could not identify the woman with whom she left the children, but the officer located her and confirmed that the children were safe. During the investigation, the officer observed two prescription pill bottles in Schaeffer's opened purse. The officer, however, could not identify the prescriptions. Schaeffer claimed that she had a prescription for Xanax to treat anxiety. Schaeffer ultimately consented to perform field sobriety tests and the investigating officerdetermined that the results indicated that Schaeffer was under the influence of narcotics and not capable of safe driving.

As the trial court states, the case progressed as follows:

After being taken into custody, [Schaeffer] was transported to Williamsport [H]ospital for a blood draw. Once at the hospital and after being read [her rights regarding consent, Schaeffer] agreed to submit to a blood draw. The blood test results were positive for, among other things,⁴ Buprenorphine and Norbuprenorphine. Buprenorphine is a Schedule III controlled substance.⁵ Norbuprenorphine is a metabolite of Buprenorphine. According to the blood test results, the amount of Buprenorphine found in [Schaeffer's] blood was 1.8 ng/ml. The amount of Norbuprenorphine found in [Schaeffer's] blood was 1.3 ng/ml.

Trial Court Opinion, 3/7/2018, at 1.

Prior to trial, Schaeffer filed an omnibus pre-trial motion pursuant to 75 Pa.C.S.A. § 1547(c) seeking, inter alia, to preclude the admissibility of the blood test results pertaining, specifically, to Buprenorphine and Norbuprenorphine. Section 1547 states, in pertinent part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance

(a) General rule.--Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have beendriving, operating or in actual physical control of the movement of a vehicle in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock).

* * *

(c) Test results admissible in evidence.--In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of the person's breath or blood, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.

* * *

(4) For purposes of blood testing to determine the amount of a Schedule I or nonprescribed Schedule II or III controlled substance or a metabolite of such a substance, the Department of Health shall prescribe minimum levels of these substances which must be present in a person's blood in order for the test results to be admissible in a prosecution for a violation of section 1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).

75 Pa.C.S.A. § 1547 (emphasis added).

The trial court held a suppression hearing on February 27, 2018. It summarized the arguments presented therein as follows:

The parties concede[d] that the Pennsylvania Department of Health ha[d] not prescribed minimum levels of these substances which must be present in a person's blood in order for the tests to be admissible in a prosecution for a violation of 75 Pa.C.S.A. § 3802(d)(2), driving under the influence of a controlled substance (impaired ability to safely drive).

[Schaeffer] argue[d] that pursuant to 75 Pa.C.S.A. § 1547(c)(4) for the purposes of blood testing to determine the amount of a non-prescribed Schedule II or Schedule III controlled substance or metabolite of such a substance, the Department of Health shall prescribe minimum levels of these substances which must be present in a person's blood in order for the test results to be admissible in a prosecution for a violation of, among other sections, § 3802(d)(2).

The Commonwealth argue[d] that pursuant to 75 Pa.C.S.A. § 1547(c)(4), the Department of Health published a notice of the minimum levels of, among other things, non-prescribed Schedule II and non-prescribed Schedule III controlled substances or their metabolites in 45 Pa. Bulletin 3638. This Pennsylvania Bulletin was published on Saturday, July 4, 2015. While it [did] not list a schedule or the minimum quantitation limits in terms of nanograms/millimeter of Buprenorphine or Norbuprenorphine, it does note the following language:

The Department recognizes that testing may be conducted for controlled substances and metabolites not listed in this notice. When testing is necessary, interested parties should contact the laboratory performing the test to inquire as to that laboratory's specific method of testing, the equipment used and any policies or procedures employed by that laboratory to ensure that the test results are valid. In subsequent notices, the Department will revise, as needed, the minimum levels of controlled substances or metabolites already included in this notice and add new controlled substances or metabolites when warranted.

Trial Court Opinion, 3/7/2018, at 2-3.

The trial court determined that there was no ambiguity in the language of the statute at issue. More specifically, it opined that the clear language of 75 Pa.C.S.A. § 1547(c)(4) required the Health Department to set minimum levels for non-prescribed Schedule II and III controlled substances and metabolites in order for blood test results to be admissible in prosecutions forDUI - controlled substances under 75 Pa.C.S.A. § 3802(d)(2). The parties conceded that Buprenorphine is a Schedule III narcotic, Norbuprenorphine is its metabolite, and that the Health Department had not set minimum levels for those substances. Accordingly, the trial court determined that the test results showing levels of Buprenorphine and Norbuprenorphine in Schaeffer's bloodstream were not admissible under Section 1547(c)(4) in a prosecution for DUI pursuant to 75 Pa.C.S.A. § 3802(d)(2). As such, it granted Schaeffer's request for suppression by order and opinion entered on March 7, 2018. This timely appeal resulted.⁶

On appeal, the Commonwealth presents the following issue for our review:

I. Whether the suppression court erred in suppressing blood test evidence showing the presence of the controlled substance, Buprenorphine, and its metabolite, Norbuprenorphine, because the Department of Health did not specifically publish the minimum level of those substances which must be present for the test to be admissible in the Pennsylvania Bulletin, according to 75 Pa.C.S.A. § 1547(c)(4)?

Commonwealth's Brief at 10.

Our standard of review regarding the grant of a suppression motion is well settled:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016) (internal citations and quotations omitted).

Moreover,

[b]ecause this is a matter of statutory interpretation, our scope of review is plenary and the standard of review is de novo. As always, when interpreting statutory provisions, [reviewing courts] aim to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.A. § 1921(a). The best indication of the General Assembly's

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