[ J - 90 - 2019 ] [MO: Saylor, C.J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

MICHELLE LEIGH STARRY,

Appellant : : : : : : : : : : : No. 19 WAP 2019 Appeal from the Order of the Superior Court entered September 24, 2018 at No. 1439 WDA 2017, reversing the Order of the Court of Common Pleas of Westmoreland County entered September 28, 2017 at No. CP

- 65

- CR

- 0001154

- 2014, and remanding. SUBMITTED: September 4, 2019

CONCURRING AND DISSENTING O PINION

JUSTICE WECHT DECIDED: JANUARY 22, 2020 I have no categorical objection to the concept of “relation

- back” evidence in the context of driving

- under

- the

- influence crimes, but the learned Majority ’ s analysis in this matter is wholly unnecessary given the unmistakably clear language of the DUI statute ’ s “good cause” ex ception

. 1 And while u nnecessary analyses are one thing, the Majority here does something far more problematic. By holding that the parties ’ arguments with regard to the statutory good

- cause exception are “effectively mooted” by today ’ s holding, Maj. Op. at 12, the Majority effectively writes Subsection (g) out of the statute, and thereby relieves the Commonwealth of it s undisputed 2 obligation to show good caus e for tardiness

1 75 Pa.C.S. § 3802(g).

2 T he Majority objects to my characterization of the Commonwealth’s burden as “undisputed,” because the Commonwealth now argues that it should not be required to s atisfy the good

- cause exception. Maj. Op. at 12

- 13. Because I am referring to unambiguous stat utory language, p erhaps the better word is “indisputable.” T he good

cause exception indisputably places an obligation upon the Commonwealth to establish[ J

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in testing suspects ’ blood alcohol concentrations (“BAC”). This flawed approach afflicts
not only this case, but a ll future cases as well. Because the Majority ’ s analysis facial ly contravenes an unambiguous statutory provision , I must respectfully dissent. 3
I. Section 3802 sets forth several categories of DUI offenses . For those c lasses of offense that are premised upon a suspect ’ s BAC percentage

— the so

- called “ per se ” DUI offenses, see Maj. Op. at 1

— the statute requires that such measurements be taken “within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a)( 2), 3802(b), 3802(c ); see also id. § 3802(e) (relating to minors), 3802(f) (relating to commercial or school vehicles). But t he statute ’ s two

- hour win dow is not hopelessly rigid . A n exception is set forth in Subsection (g), entitled “Exception to two

- hour rule.” That subs ection provides: (g) Exception to two
- hour rule.

-- Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual ’ s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circum stances: (1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substan ce
its requirements. See 75 Pa.C.S. § 3802(g)(1) (“where the Commonwealth shows

. . .”); 3802(g)(2) (“wh ere the Commonwealth establishes

. . .” ).

3 For the reason set forth in Part II, infra , I would affirm the order of the Superior Court on grounds distinct from those articulated by the Majority. I thus concur only in the result.[ J

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- 3 between the time the individual was arrested and the time the sample was obtained.

Id. § 3802(g) (emphasis added)

. Subsection (g) does not state that BAC evidence taken more than two hours after a suspect ’ s operation of a vehicle may be “related back” to establish the suspect ’ s likely BAC during the two

- hour window. To import this framework into this case is to add a wholly superfluous complication. W here both prongs of the exception are met, the untimely measurement is itself “sufficient to establish” the BAC element of an offen se. Id. We need not craft extra

- statutory mechanisms by which to fit belated BAC test results into the two

- hour window, because Subsection (g), when satisfied , effectively enlarges that window. The point is perhaps best made by illustration. Set aside the factual dispute as to when the accident in this case occurred, and assume that the evidence of Michelle Starry ’ s BAC percentage was, in fact, acquired more than two hours after she last operated h er vehicle. Further suppose that the Commonwealth established both prongs of the exception , i.e. , that there was good cause for the delay, and that Starry consumed no additional alcohol between the time of her arrest and the time of testing. Pursuant to Subsection (g), Starry ’ s BAC of .304% is, at that precise moment in time, “ sufficient to establish ” the corresponding element of the offense at issue . 75 Pa.C.S. § 3802(g). That is, such evidence demonstrates that Starry’s BAC is .16% or higher, in violation of 75 Pa.C.S. § 3802(c)

. This is true notwithstanding that the testing occurred beyond the two

hour window; such is the very purpose of Subsection (g). Nothing need be related back to anything. Provided that the Commonwealt h establishes the applicability of the exception, the evidence is sufficient, and the analysis concludes. Eschewing this straightforward application of the DUI statute, the Majority replaces the good

- cause exception of Subsection (g) with a purely judge

- m ade paradigm of “ weak ”[ J

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and “ strong ” inferences, by which belatedly ascertained BAC evidence may circumstantial ly establish a suspect ’ s BAC level during the two

- hour window, perhaps with the aid of an expert opinion, but perhaps not

. See Maj. Op. at 10

- 12. 4 The problems with this approach are evident and multifaceted. First and foremost, as noted above, this is simply not the manner in which t he statute operates. Although the Majority correctly states that there “is nothing in Section 3802 (c) that prohibits” a relation

- back approach on its face , id. at 10 (emphasis added), the Majority neglects the fact that Section 3802(g) accounts for this very circumstance a mere four subsections later

. T he Majority ’ s analysis
presupposes a situation in which BA C evidence is a scertained outside of the statutory
two

- hour window , yet obscures the fact that the Commonwealth must meet the good

cause exception in order to demonstrate that such evidence, though untimely, nonetheless establishes a necessary element of t he offense. Even if the Majority ’ s approach were permissible under the statute, it would still be imprudent, inasmuch as it reintroduces a host of difficulties that this Court previousl y has identified in connection with “relation

- back” analyses. An obvious complication is that the Majority offers no guidance as to the line between a “weak” inference, for which expert testimony would be required, and a “strong” inference , which requires no aid from an expert . My concern finds an echo i n Commonwealth v. Duda , 923 A.2d 1138 (Pa. 2007), where we observed that, because our previous decisions had “provided little firm guidance as to when expert relation

- back testimony was necessary” in a DUI prosecution, “it seemed probable that litigation o ver this question would inevitably follow.” Id. at 1143. We noted that an array of Superior Court decisions already had revealed the difficulty that

4 Notably, for its putative “dichotomy between weak and strong inferences,” Maj. Op. at 11, the Majority primarily draws upon Commonwealth v. Modaffare , 601 A.2d 1233 (Pa. 1992), a decision that predates by over a decade the General Assembly’s adoption of the two

- hour rule and the corresponding exception thereto.[ J

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lower courts faced in attempting to draw this inevitably blurry line. See id. at 1143 n.7. We further q uoted the Attorney General ’ s observation that, “not only courts, but ‘ jurors themselves became confused as drunk driving trials became a battle of competing experts testifying on complex concepts of biochemistry and human metabolism. ’ ” Id. Immediately fo llowing this discussion, the Duda Court observed that the General Assembly, apparently “unsatisfied with this state of affairs,” amended the DUI statute in a manner that “was designed to simpl if y DUI prosecutions by eliminating the need for expert relation

- back testimony in a class of prosecutions where the police obtain a BAC reading of 0.10 within three hours of the defendant ’ s operation of the vehicle.” Id. at 1143. Notwithstanding the difficulties we identified in Duda , the Majority opts here to
sup erimpose an extra

- statutory relation

- back framework upon the DUI statute . This overlay shares the deficiency noted in our earlier precedents , inasmuch as it fails to articulate precisely when expert testimony will be required. This invites endless litiga tion over whether the BAC evidence in a given case raises a strong inference or a weak inference of intoxication during the relevant timeframe, and thus w hether expert opinions will be necessary in orde r for the Commonwealth to produce sufficient proof for a conviction, or for the defense to sow sufficient doubt for an acquittal

. It calls for a return to an era where a large percentage of DUI cases transform courtrooms into colosseums for dueling experts , thrusting and parrying with biochemical esoteri ca outside the grasp of j urors and jurists alike. 5 And, most importantly, it disregards the General Assembly ’ s inten t to dispense with such extravagant inquiries , an intent reified by the legislature’s

5 To be clear, I am in no way suggesting that our trial courts are incapable of managing parties’ use of expert witnesses or otherwise observing the applicable Rules of Evidence. See Maj. Op. at 14

. I am sugges ting, however, t hat the use of exp erts for “relation

- back” propositions is unnecessary, potentially confusing , and inconsistent with the General Assembly’s intent to “ simplify DUI prosecutions by eliminating the need for expert relation

- back testimony ” in this context. Duda , 923 A.2d at 1143.[ J

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a doption of per se DUI offenses

— offenses which, as th e Majority itself describes, were “designed to ameliorate difficulties associated with attempting to relate post hoc blood and breath test results back to the time of driving.” Maj. Op. at 1. While t he Majority acknowledges these “difficulties,” it needl essly resurrects them. Perhaps the drawbacks associated with the Majority ’ s approach would be acceptable if we had no other option

— if the statute demanded such relation

- back evidence, or if it actually were necessary in order to resolve the instant cas e or others like it. But we have another option. Indeed, we have a command. We can apply the langua ge of the statute, as written. In every conceivable circumstance, a BAC reading will be procured either “ within two hours after the individual has driven , operated or been in actual physical control of the movement of the vehicle ,” see, e.g. , 75 Pa.C.S. § 3802(c), in which case it suffices as evidence of a corresponding DUI offense, or the BAC reading will be procured “ more than two hours after the individ ual has driven, operated or been in actual physical control of the movement of the vehicle ,” id. § 3802(g), in which case the Commonwealth must establish the applicability of the good

- cause exception of Subsection (g), so as to en large the permissible time frame. This is an either/or proposition . It accounts for all possible timing permutations

. Expressio unius est exclusio alterius . By giving courts an express instruction as to the treatment of “ evidence of

. . . alcohol or controlled substance concentration more than two hours after ” the suspect’s last operation of the vehicle, id. , the General Assembly has left no room for the Majority ’ s substitution of a relation

- back approach in the place of the Commonwealth ’ s burden under Subsection (g). Notably, Subsection (g)’s reference to “evidence” of BAC “more than two hours after” the suspect’s last operation of the vehicle belies the Majority’s assertion that the substantive DUI offense is “subject to precisely no stated evidentiary restrictions.” Maj.[ J

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Op. at 14 (emphasis in original). “Evidence” of BAC “more than two hours after” driving can refer to nothing other than a BAC reading that is obtained beyond the two

- hour window, which is precisely the type of evidence that, the Majority holds, may be “related back” without any co nsideration of Subsection (g). Further, and perhaps even more clearly, the first prong of the exception demands that the Commonwealth establish “good cause explaining why the chemical test sample could not be obtained withi n two hours .” 75 Pa.C.S. § 3802(g)(1) (emphasis added). In light of this unambiguous statutory language, the Majority’s assertion that the DUI statute does not require testing within two hours, and instead sets merely a two

- hour target range for relation

- back evidence, could not be more plainly contravened by the language of Subsection (g). Read as a whole, Section 3802 sets forth an overarching evidentiary restriction in the form of what the
statute expressly calls “the two

- hour rule”

— a rule that is rep eated no fewer than five times in the language of the statute. If “evidence” of BAC, 75 Pa.C.S. § 3802(g), does not fall within the two

- hour rule

— because it was not “obtained within two hours,” id. § 3802(g)(1)

— then it falls within the “[e]xception to the two

- hour rule,” id. § 3802(g) , conditioned only upon the Commonwealth’s demonstration of the two factors that the Majority now deems optional

. Insisting that it has not essentially erased Subsection (g) from the statute, the Majority suggests that nothing in its opinion “either requires relation back evidence or hampers the Commonwealth’s ability to proceed under Section 3802(g).” Maj. Op. at 13

. Yet, following today’s decision, there is no need for the Commonwealth or any court ever to consider the good

- cause exception of Subsection (g). To recognize the consequence of the Majority’s analysis, all one must do is imagine any case in which the suspect’s BAC is ascertained over two hours after the suspect’s last operation of a vehicle

. In t he parlance of the statute, such a BAC is[ J

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“ evidence of

. . . alcohol or controlled substance concentration more than two hours after the individual has drive n, operated or been in actual physical control of the movement of the vehicle .” 75 Pa.C.S. § 3802(g) (emphasis added)

. Before today’s decision, a straightforward reading of the statute gave rise to a simple inquiry: Has the Commonwealth established both prongs of Subsection (g)’s exception to the two

- hour rule? Now, with the Majority’s blessi ng, the Commonwealth may ignore Subsection (g) altogether, and instead skip directly to an extra

- statutory assessment of whether that evidence gives rise to a “str ong” or “weak” inference of a sufficiently elevated BAC during the two

- hour window. If this does not write Subsection (g) out of the statute, it provides, at the very least, an avenue by which to circumvent it completely, and thereby to allow all future c ourts and litigants to proceed as though it does not exist. Because we must construe a statute “to give effect to all its provisions,” 1 Pa.C.S. § 1921(a), the Majority’s interpretation is impermissible. As for the Majority’s suggestion that nothing in i ts opinion

“ hampers the Commonwealth’s ability to proceed under Section 3802(g) , ” Maj. Op. at 13 , the Majority is effectively stating that its sidestepping of the statute is in no way problematic because the Commonwealth retains an option to follow the statute, if it so chooses. But statutes are not suggestions , and observing their provisions is not option al

. And the Majority does not stop there. Taking up the parties’ arguments with respect to the good

- cause exception arguendo , despite finding them “effectively mooted” by its relation

- back rationale, Maj. Op. at 14, the Majority reasonably assumes that the necessity and timing of blood testing in the course of medical treatment “will turn on circumstance

- dependent judgments by health professionals.” Id. at 15. Yet, it would conclude, given Starry’s “seriously impaired condition,” that it was reasonable for the investigating officer to infer that medical perso nnel would draw her blood promptly. Id.[ J

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Considering that we are addressing DUI offenses, a mere description of a suspect as “seriously impaired” would appear to cast a rather wide net. Remarkably, the Majority then suggests that a “demonstrated effort

. . . to meet the two

- hour window” may be necessary only “[i]n cases where these types of inferences are not warranted.” Id. This is, of course, an even further narrowing of Subsection (g). But more significantly , given the manner in which the Majority r esolves the case before us, an obvious question remains: Under what circum stance would a “demonstrated effort

. . . to meet the two

hour window” ever be necessary? Id. Before considering these “mooted” arguments, the Majority already held that the two

- h our window is not an “evidentiary restriction” at all, id. at 14, and tha t BAC evidence obtained beyond the two

- hour window may be related back absent any consideration of the good

- cause exception

. Thus, b y the Majority’s express rationale, there is no need for a “demonstrated effort” to test within two hours, and there is no consequence for failing to do so. Why, then, make any effort?
II. The Majority ’ s approach is all the more perplexing given the manifestly reasonable grounds upon which the Superio r Court based its decision. Although the Superior Court discussed the good

- cause exception of Subsection (g) in the context of an alternative analysis, its primary rationale for reversal of the trial court ’ s order was that the Commonwealth ’ s evidence gave rise to a reasonable inference that Starry ’ s BAC reading was ascertained within two hours of her last operation of her vehicle, rendering any consideration of the good

- cause exception unnecessary. Commonwealth v. Starry , 196 A.3d 649, 659 (Pa. Super. 201 8). It remains undisputed that the first report of Starry ’ s accident was received at 11:49 a.m., and t hat her blood was drawn at 1:4 0 p.m. See Maj. Op. at 3 & n.4 (citing N.T., 7/30/2015, at 10, 13). Accordingly, Starry ’ s “blood was drawn 1 hour and 51 minutes after the accident was first reported.” Starry , 196 A.3d at 659.[ J

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Provided that no more than nine minutes elapsed between the accident and the first report, Starry ’ s BAC was ascertained within the statutory two

- hour window. Although the precise time of t he accident remains unknown, and we thus cannot say with certainty when Starry last had “ driven, operated or been in actual physical control of the movement of the vehicle,” 75 Pa.C.S. § 3802(c), the Commonwealth ’ s burden to establish a prima facie case at a preliminary hearing does not demand certainties. Rather, “inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorab le to the Commonwealth ’ s case. ” 6 Viewing the evidence in the light most favorable to the Commonwealth, and particularly given that the accident occurred near midday on a Sunday rather than in the middle of the night, a reasona ble inference may be drawn th at the accident occurred very near the time of the first emergency report, and, thus, that Starry ’ s blood was drawn within two hours after she last operated the vehicle

. Accordingly, any consideration of the good

- cause exception to t he two

- hour rule is

un necessary. Resort to an extra

- statutory “relation

- back” theory is doubly unnecessary. I would affirm the order of the Superior Court for the reason articulated in that
court ’ s memorandum . I thus concur only in today’s result. Justice Donohue and Justi ce Dougherty join this concurring and dissenting opinion.

6 Commonwealth v. Huggins , 836 A.2d 862, 866 ( Pa. 2003) (brackets and internal quotation marks omitted).