 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Bullick8/4/2003
the fact that Appellant exhibited "nearly all of the classic signs of intoxication." Commonwealth's Brief at 7. In so arguing, the Commonwealth seemingly attempts to imply that driving while under the influence constitutes a status of legal recklessness or is recklessness per se. However, this argument is contrary to caselaw. In Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. 1998), we stated " riving under the influence of intoxicating substances does not create legal recklessness per se but must be accompanied with other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury which is consciously disregarded.... What is material is actual reckless driving or conduct... for it is this conduct which creates the peril in question."
21 In analyzing the element of legal recklessness in the context of driving under the influence we stated:
Under our Criminal Code one acts "recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element...will result from his conduct." Pa.C.S.A. § 302(b)(3) (emphasis added). Thus, in order for us to conclude that driving while legally intoxicated results in recklessness per se we would have to conclude that driving while legally intoxicated creates a "substantial" risk that death or serious bodily injury will occur. However, this does not necessarily follow.
As unfortunate as it may be and as can be plainly seen upon a visit to a busy nightclub on any given night numerous individuals will operate motor vehicles while legally intoxicated. On the fortunate side of the equation, the overwhelming majority of them will make their way safely home. Although certainly these drivers are more likely to be involved in an accident than if they were completely sober, the percentage chance of them causing injury is still relatively remote and would not create "a substantial risk" of death or serious bodily injury as is found in the relevant sections of the Crimes Code.
Mastromatteo, 719 A.2d at 1083-84.
22 Undoubtedly, there exists a level of intoxication that renders a person so incapable of safe driving that that probability of injury or death would rise high enough to satisfy the willful and wanton recklessness standard. However, since recklessness further requires a "conscious disregard" of the danger, to prove reckless driving it would also be theoretically necessary to prove that the driver appreciated this factor and drove anyway. In this case, we cannot conclude that the Commonwealth has established Appellant was intoxicated to such a level.
23 Perhaps more problematic is the fact that the court granted Appellant's demurrer to the driving under the influence charge. The effect of this ruling was that the Commonwealth's evidence failed to establish that Appellant was under the influence to a degree that rendered him incapable of safe driving. If the evidence was found lacking to prove that Appellant was incapable of safe driving, we fail to see how signs of intoxication in a vacuum support a charge of reckless driving. A review of the argument on the demurrer indicates that it was granted because the Commonwealth failed to establish when Appellant's intoxication occurred. Although the arresting officer testified that he arrived on the scene shortly after receiving the call, there was no testimony indicating when the accident actually occurred. Moreover, although the officer testified that the keys were in the ignition he could not recall whether the engine was running and he failed to check to see if the engine was still warm. Thus, although Appellant exhibited classic signs of be
Page 1 2 3 4 5 6 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|