J-A22030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER RYAN TUCKER

Appellant No. 3705 EDA 2016

Appeal from the Judgment of Sentence November 3, 2016

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0004011-2015

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 24, 2017

Christopher Ryan Tucker appeals from the judgment of sentence, 

entered in the Court of Common Pleas of Lehigh County, following his 

conviction for Driving Under the Influence (“DUI”): Controlled Substance –

Metabolite, 75 Pa.C.S.A. § 3802(d)(1)(iii). After review, we affirm.

Tucker is a permanently disabled veteran; he admits to using cannabis 

to self-medicate psychological issues that include schizoaffective disorder and 

post-traumatic stress disorder. On June 30, 2015, Tucker awoke to severe

stomach pain at approximately 6:00 a.m. Shortly thereafter, Tucker smoked 

a marijuana cigarette in an attempt to subside his stomach pain. When the 

pain continued, Tucker determined it was necessary to drive to the hospital, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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but, concerned that the effects of the marijuana would impair his driving 

ability, he did not leave his residence until 12:15 p.m.

During Tucker’s drive to the hospital, Tucker felt a sharp pain in his 

stomach, numbness and pain in his teeth, and a loss of feeling in his lower 

extremities. Tucker’s symptoms quickly worsened, and he began experiencing 

tunnel vision and he believed he was going to pass out. Tucker pulled his 

vehicle over and called 911, during which he informed dispatch that he had 

consumed four double shots of espresso and smoked marijuana approximately 

three to four hours earlier. At approximately 12:30 p.m., Pennsylvania State 

Trooper Sean Quigney was dispatched to assist Emergency Medical Services 

(“EMS”) with a vehicle on the side of a roadway and a driver who was 

potentially suffering a stroke.

When Trooper Quigney arrived, he approached Tucker, who was sitting 

in the rear of an ambulance. During the course of Trooper Quigney’s 

investigation, Tucker admitted to having smoked marijuana earlier in the 

morning. Tucker was transported to the hospital, whereupon Trooper Quigley 

requested that Tucker submit to a blood draw. Tucker’s blood was drawn and 

tested positive for the presence of cannabis metabolites. 

On August 5, 2015, Tucker was charged with DUI: Controlled Substance 

– Impaired Ability, DUI: Controlled Substance – Schedule I, DUI: Controlled 

Substance – Metabolite, and careless driving.1 On January 6, 2016, Tucker 

____________________________________________

1 75 Pa.C.S.A. § 3802(d)(2), 75 Pa.C.S.A. § 3802(d)(1)(i), 75 Pa.C.S.A. § 

3802(d)(1)(iii), and 75 Pa.C.S.A. § 3741(a), respectively. 
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filed an omnibus pretrial motion/petition for writ of habeas corpus challenging 

the results of his toxicology report, the constitutionality of 75 Pa.C.S.A. § 

3802(d)(iii), and the sufficiency of the evidence pertaining to the charge of 

careless driving. Tucker ultimately withdrew his motion and the 

Commonwealth agreed to withdraw all charges except DUI: Controlled 

Substance – Metabolite. A bench trial was held on December 6, 2016, after 

which Tucker was found guilty of DUI: Controlled Substance – Metabolite. On 

November 3, 2016, the trial court sentenced Tucker to five years’ intermediate 

punishment, 135 days of which he was to serve on house arrest. On 

December 2, 2016, Tucker timely filed his notice of appeal; both Tucker and 

the trial court have complied with Pa.R.A.P. 1925. Tucker raises the following 

issues for our review:

1. Whether 75 Pa.C.S.A. § 3802(d)(1)(ii) is unconstitutionally 

vague, overbroad and irrationally over-inclusive and, therefore, 

violates [Tucker’s] due process rights[?]

2. Whether 75 Pa.C.S.A. § 3802(d)(1)(ii) violates [Tucker’s] 

rights under the Pennsylvania and Federal Equal Protection 

Clauses[?]

3. Whether the Commonwealth failed to prove beyond a 

reasonable doubt that [Tucker] was impaired while operating a 

motor vehicle in violation of 75 Pa.C.S.A. § 3802(d)(1)(iii).

Brief of Appellant, at 2. 
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Tucker first challenges the constitutionality of section 3802(d)(1),

asserting that it is vague, overbroad and irrationally over-inclusive, and thus, 

violates his due process rights.2 

The constitutional validity of duly enacted legislation is presumed, and 

a statute will only be declared unconstitutional if it clearly, palpably and plainly 

violated the constitution. See Commonwealth v. Haughwout, 837 A.2d 

480, 487 (Pa. Super. 2007). This court, in evaluating an assertion that a 

statute is vague and overbroad, has set forth the following:

As generally stated, the void for vagueness doctrine requires that 

a penal statute define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement. A statute is void for vagueness if it 

fails to give a person of ordinary intelligence fair notice that his 

contemplated conduct is forbidden by the statute. Due process 

requirements are satisfied if the statute provides reasonable 

standards by which a person may gauge their future conduct.

A statute is ‘overbroad’ if by its reach it punishes constitutionally 

protected activity as well as illegal activity. 

____________________________________________

2 Although Tucker challenges the constitutionality of a statute, he need not 

notify the Attorney General, as the Commonwealth is a party to this matter. 

See 210 Pa. Code § 521 (“It shall be the duty of a party who draws in question 

the constitutionality of any statute in any matter in an appellate court to which 

the Commonwealth or any officer thereof, acting in his official capacity, is not 

a party, upon the filing of the record, or as soon thereafter as the question is 

raised in the appellate court, to give immediate notice in writing to the 

Attorney General of Pennsylvania of the existence of the question; together 

with a copy of the pleadings or other portion of the record raising the issue, 

and to file proof of service of such notice.”)
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Commonwealth v. McCoy, 895 A.2d 18, 30 (Pa. Super. 2006). This Court 

has already addressed constitutional challenges to section 3802(d)(1); it is 

neither vague nor overbroad:

There is no constitutional right to the use of marijuana prior to 

driving; indeed, under the Pennsylvania’s Controlled Substance, 

Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et. seq., which 

has not been deemed unconstitutional, an individual is prohibited 

from any use of marijuana. Thus, [a]ppellant’s challenge to 

[Section 3802(d)(1)] must fail.

Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007). 

Accordingly, Tucker’s claim must also fail. 

Tucker next claims that section 3802(d)(1) violates his Pennsylvania 

and Federal Equal Protection Rights. When presented with a claim that a 

statute violates the equal protection clause, where the case does not involve 

a fundamental right or suspect class and does not involve an important right 

or sensitive classification, our inquiry rests upon whether there exists a 

rational basis for the classification. See Etchison, 916 A.2d at 1173. The 

essence of the constitutional principle of equal protection under the law is that 

like persons in like circumstances will be treated similarly; however, it does 

not require that all persons under all circumstances enjoy identical protection 

under the law. Id. at 1173-74. Further, the right to equal protection under 

the law does not absolutely prohibit the Commonwealth from classifying 

individuals for the purpose of receiving different treatment, and does not 

require equal treatment of people having different needs; the prohibition 

against treating people differently under the law does not preclude the 
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Commonwealth from resorting to legislative classifications, provided that 

those classifications are reasonable rather than arbitrary and bear reasonable 

relationship to the object of the legislation. Id.

The Etchison court also deemed section 3805(d)(1) not to violate equal 

protection rights:

We reject [a]ppellant’s assertion that [s]ection 3801(d)(1) 

violates equal protection, as there is no legislative classification 

upon which to base such an argument. As noted previously, a 

conviction under [s]ection 3802(d)(1) does not require that a 

driver be impaired; rather, it prohibits the operation of a motor 

vehicle by any driver who has any amount of specifically 

enumerated controlled substances in his blood, regardless of 

impairment. All drivers are treated the same. Accordingly, we 

find that [a]ppellant’s equal protection challenge lacks merit.

Id. at 1173-74 (emphasis in the original). Here too, Tucker’s claim is 

meritless.

Finally, Tucker claims that the Commonwealth failed to prove beyond a 

reasonable doubt that he was impaired while operating a motor vehicle. 

Tucker’s claim challenges the sufficiency of the evidence.

Our standard when reviewing the sufficiency of the evidence is 

whether the evidence at trial, and all reasonable inferences 

derived therefrom, when viewed in light most favorable to the 

Commonwealth as verdict-winner, are sufficient to establish all 

elements of the offense beyond a reasonable doubt. We may not 

weigh the evidence or substitute judgment for that of the factfinder. Additionally, the evidence at trial need not preclude every 

possibility of innocence, and the fact-finder is free to resolve any 

doubts regarding a defendant’s guilt unless the evidence is so 

weak and inconclusive as a matter of law no probability of fact 

may be drawn from the combined circumstances. When 

evaluating the credibility and weight of the evidence, the factfinder is free to believe all, part, or none of the evidence. For 
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purposes of our review under these principles, we must review the 

entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (citation 

omitted).

An individual may not drive, operate or be in actual physical control of 

the movement of a vehicle if there is in the individual’s blood any amount of 

metabolite of a Schedule I controlled substance. 75 Pa.C.S.A. § 3802(d)(1)(i) 

and (iii) (emphasis added). However, “[s]ection 3802(d)(1) does not require 

that a driver be impaired; rather, it prohibits the operation of a motor vehicle 

by any driver who has any amount of specifically enumerated controlled 

substances in his blood, regardless of impairment.” Etchison, 916 A.2d at

1174 (emphasis in the original).

Instantly, Tucker does not dispute that the evidence was sufficient to 

prove the elements of his crime, and he concedes that impairment is not 

presently an element of DUI: Controlled Substance – Metabolite. Rather, 

Tucker argues that section 3802(d)(1)(iii), as interpreted, is unconstitutional 

and that the Commonwealth should be required to prove impairment when 

prosecuting under section 3802(d)(1)(iii). Tucker further argues that if we 

read section 3802(d)(1)(iii) as requiring the Commonwealth to prove 

impairment, and being that the Commonwealth has not shown Tucker was 

impaired while driving on June 30, 2015, the Commonwealth, ergo, has not 

sufficiently proven Tucker’s guilt. Tucker’s specious and convoluted argument 

is meritless. 
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As the Etchison court established, and as Tucker concedes, impairment 

is not an element of section 3802(d)(1)(iii). Tucker admitted to both police 

dispatch and Trooper Quigney that he smoked marijuana prior to attempting

to drive himself to the hospital; his admissions were duly corroborated by his 

blood test results.3 Etchison, supra. Therefore, Tucker’s sufficiency claim

fails. Trinidad, supra. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2017

____________________________________________

3 We note that the record is vague as to the issue of whether Tucker’s consent 

was voluntary. At trial, Trooper Quigney merely stated that “at the hospital I 

requested that [Tucker] submit to a blood draw.” N.T. Bench Trial, 9/6/16, at 

7. The Commonwealth did not solicit any further testimony regarding the 

circumstance under which Tucker complied with Trooper Quigney’s request. 

However, there is no evidence in the record that (1) Trooper Quigney or law 

enforcement provided Tucker with incorrect information that refusal to submit 

to a blood draw would result in enhanced penalties; (2) Tucker was 

administered and signed a DL-26 form; or (3) Tucker did not voluntarily 

consent to the blood draw. Therefore, although under certain circumstances 

we may raise the issue of voluntary consent sua sponte, we may not do so 

here. Cf. Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016) (driver 

could not be deemed to have consented to warrantless blood draw as 

exception to the requirement for a search warrant; defendant only consented 

to a blood draw after being incorrectly informed by police that refusal to 

submit to the test could result in enhanced criminal penalties).