Commonwealth v. Smith

320 A.3d 674

COMMONWEALTH of Pennsylvania

v.Michael David SMITH, Appellant

No. 593 MDA 2023

Superior Court of Pennsylvania.

Argued December 6, 2023

Filed July 23, 2024

Appeal from the Judgment of Sentence Entered December 7, 2022, In the Court of Common Pleas of York County, Criminal Division, at No(s): CP-67-CR-0007244-2019, Amber A. Kraft, J.

Robert D. O’Brien, Hanover, for appellant.

Kelby S. Carlson, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Michael David Smith, appeals from the judgment of sentence entered in the Court of Common Pleas of York County after a jury convicted him of, inter alia, driving under the influence ("DUI") in violation of 75 Pa.C.S.A. § 8802(d)(1)(i) and (iii). We affirm.

The undisputed facts are as follows: On the night of June 23, 2019, Pennsylvania State Police Troopers Ryan Wildermuth and Rebecca Taylor were on duty and riding in a marked patrol car when they entered Interstate 83 northbound and observed Appellant driving a dark colored SUV traveling north at a high rate of speed in the left lane. N.T., 7/11/22, at 12-18. Prior to executing a traffic stop, the troopers pursued the vehicle for over three tenths of a mile, during which they observed speeds of over 80 miles per hour in a 50 mile per hour zone and "choppy" handling of the vehicle around curves. N.T. at 19-21.

[1] During Trooper Wildermuth’s encounter with Appellant, he detected a strong odor of burnt marijuana emanating from inside the vehicle and viewed Appellant’s heavy, glassy, bloodshot eyes." N.T. at 22. From the trooper’s lawful vantage point outside the vehicle, he saw positioned on the center console, in plain view, a corn cob pipe and a small marijuana bud in the cup holder. N.T. at 28. Appellant produced a Medical Marijuana¹ card and admitted that he had smoked marijuana approximately 40 to 50 minutes earlier in Baltimore, Maryland. N.T. at 28. A medical marijuana container and THC² wax were also in the vehicle.³ N.T. at 38. Appellant was placed under arrest on suspicion of Driving under the Influence ("DUI") and, after consenting to blood chemical testing, was taken to York Hospital where a blood sample produced results indicating the presence of active marijuana metabolites in his blood. N.T. at 48.

A criminal complaint was filed charging Appellant with Driving under the Influence ("DUI") of a Schedule I⁴ controlled substance, marijuana, in violation of Section 3802(d)(1)(i) and (iii) of the DUI statute.⁵ Appellant filed omnibus pretrial motions in which he raised constitutional challenges asserting that Sections 3802(d)(1)(i) and (iii) violate equal protection rights and due process rights provided to Appellant and other medical marijuana patients by the Pennsylvania Constitution. The trial court denied the motions.

At Appellant’s trial, toxicologists and a physician provided expert testimony that marijuana and its metabolites travel from the blood to fat cells located primarily in the brain and the abdomen and can be released weeks later back into the blood stream, resulting in detectable levels of both active and inactive THC metabolites. N.T., 7/12/22, at 29, 73. Active metabolites bind to receptors and elicit an effect on the user, while an inactive metabolite has no effect. N.T. at 29; Report of Lawrence J. Guzzardi, M.D., 5/12/22, at 8-9. Medical Marijuana Act ("MMA") patients who regularly use marijuana in accordance with the MMA, moreover, will frequently have metabolites in their blood. N.T. at 73. The experts also agreed that, unlike with alcohol, there is no way to gauge accurately the impairment of a marijuana user by reference to a particular blood concentration level of THC or its metabolite. N.T. at 81-82, 98-99.

At the conclusion of trial, the jury found Appellant not guilty of DUI while impaired by a controlled substance (marijuana), 75 Pa.C.S.A. § 3802(d)(2), and not guilty of Driving on Roadways Laned for Traffic, 75 Pa.C.S. § 3309, but guilty of speeding and guilty of DUI related to marijuana and/or metabolites of marijuana being in his blood at the time of driving pursuant to Section 3802(d)(1)(i) and (iii). On December 7, 2022, Appellant was sentenced to two concurrent sentences each consisting of three years’ restrictive probation, beginning with 90 days’ house arrest with electronic monitoring, and a mandatory $1,500 fine. After the denial of post-sentence motions, Appellant filed the timely present appeal.

Appellant has briefed the following "Statement of the Questions Presented for Review":

1. Whether the Lower Court committed an error of law and/or abused its discretion when it denied Appellant’s Motions to find that Sections 3802(d)(1)(i) and (iii) of the DUI statute are in violation of the equal protection and due process guarantees/rights provided to Appellant and other medical marijuana patient users under the Pennsylvania Constitution, since those Sections of the DUI statute;

a) Violate equal protection rights by creating a classification based upon whether a person using a medication is either using a Schedule II/III prescribed/approved controlled substance or using medical marijuana, without a sufficient constitutional basis to justify that disparate treatment classification which infringes upon and adversely affects fundamental constitutional rights (security/protection of one’s reputation, an ability to enjoy life, and an ability to pursue happiness) expressly protected in the Pennsylvania Constitution;

b) Violate substantive due process rights and overbreadth protections because their criminalization of the presence of any amount of marijuana or any amount of its metabolites (active or inactive) in an individual’s blood, without requiring proof of any impairment to drive (as is required with other approved medications), is arbitrary and capricious, uses unnecessarily broad means which punish lawful behavior and a mere status, results in unjust disparate treatment of patients approved to use medical marijuana to treat their medical conditions, bears little to no relation to keeping unsafe drivers off the roads by removing impaired drivers, and infringes upon and adversely affects fundamental constitutional rights (security /protection of one’s reputation, an ability to enjoy life, and an ability to pursue happiness) expressly protected in the Pennsylvania Constitution; and, c) Violate procedural due process rights by creating an irrebuttable presumption that patients approved to sue medical marijuana (unlike any other patient using prescribed/approved medications) are unable to drive safely and are guilty of a DUI offense simply based upon their having any amount of marijuana or its active or inactive metabolites in their blood, without any proof of being impaired to such a degree that they would be unsafe to drive, which infringes upon and adversely affects fundamental constitutional rights (security/protection of one’s reputation, an ability to enjoy life, and an ability to pursue happiness) expressly protected in the Pennsylvania Constitution?

Brief of Appellant at 5.

[2–12] Appellant’s constitutional challenge is a question of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Torsilieri, 659 Pa. 359, 232 A.3d 567 (2020). "When addressing constitutional challenges to legislative enactments, we recognize that ‘the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society,’ but also that ‘any restriction is subject to judicial review to protect the constitutional rights of all citizens.’" Commonwealth v. Muhammad, 241 A.3d 1149, 1154–55 (Pa. Super. 2020) (quoting In re J.B., 630 Pa. 408, 107 A.3d 1, 14 (2014)). Furthermore,

It is axiomatic that: "[A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute ‘clearly, palpably, and plainly’ violates the Constitution." Konidaris v. Portnoff Law Associates, Ltd., … 598 Pa. 55, 953 A.2d 1231, 1239 ([Pa.] 2008) (citation omitted). The presumption that legislative enactments are constitutional is strong. Commonwealth v. McMullen, … 599 Pa. 435, 961 A.2d 842, 846 ([Pa.] 2008); see also 1 Pa.C.S. § 1922(3) ([stating that,] in ascertaining intent of General Assembly in enactment of statute, presumption exists that General Assembly did not intend to violate federal and state constitutions). All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, … 583 Pa. 275, 877 A.2d 383, 393 ([Pa.] 2005). Moreover, "statutes are to be construed whenever possible to uphold their constitutionality." In re William L., … 477 Pa. 322, 383 A.2d 1228, 1231 ([Pa.] 1978).

DePaul v. Commonwealth, … 600 Pa. 573, 969 A.2d 536, 545–46 ([Pa.] 2009).

Commonwealth v. Arnold, 284 A.3d 1262, 1270 (Pa. Super. 2022)

There are two types of constitutional challenges, facial and as-applied. Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011). A facial attack tests a law’s constitutionality based on its text alone without considering the facts or circumstances of a particular case. Id. The court does not look beyond the statute’s explicit requirements or speculate about hypothetical or imaginary cases. Germantown Cab Company v. Philadelphia Parking Authority, 651 Pa. 604, 206 A.3d 1030, 1041 (2019). An as-applied attack on a statute is more limited. It does not contend that a law is unconstitutional as written, but that its application to a particular person under particular circumstances deprives thatperson of a constitutional right. Brown, 26 A.3d at 493. "[W]hile as-applied challenges require application of the ordinance to be ripe, facial challenges are different, and ripe upon mere enactment of

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