The Pennsylvania Gold Rush

The Marcellus Shale drilling boom has brought with it the hope for lucrative profits to Pennsylvania landowners and drilling companies alike. Some Pennsylvania landowners have already benefitted from this and we will see many, many more benefit in the near future as the gas companies who have already entered into agreements with gas and oil companies begin to more aggressively approach those landowners in the Marcellus Shale regions of Pennsylvania. Although Marcellus Shale underlies approximately two-thirds of Pennsylvania, it was only recently – in the past few years – that gas companies began drilling to extract natural gas from the Marcellus Shale in these regions. Previously, doing so was simply too expensive; however, significant advances in technology have now made such drilling possible. And, currently, not only is such drilling performed in Marcellus Shale regions throughout Pennsylvania; it is being performed so often that it has been referred to as the “Pennsylvania Gold Rush.”
Chances are, with this “Gold Rush,” if you are a Pennsylvania resident, and especially if you are a landowner in Western Pennsylvania, you may be approached by a representative of the drilling company who is seeking to extract such resources from your land in exchange for monetary gain. What should you do?
First things first, remember that the company is seeking to enter into a legal contract (a leasing agreement) with you. Therefore, anything that you sign will have legal consequences. Moreover, the lease that the “landsman” gives you will be more favorable to the gas (or oil) company than to you, as the company is, after all, looking to benefit itself. For this reason, it is strongly recommended that you immediately contact an experienced gas and oil attorney so that you are not taken advantage of and to ensure that you receive the best possible deal.
Second, as with all legal contracts, whatever the representative or “landsman” may tell you orally runs the risk of being unenforceable if not in writing. Do not rely on these oral assurances. Make sure that what the landsman tells you is accurately reflected in the contract you are provided to avoid any potential problems and save yourself much hassle in the future.
Third, because what you are seeking to sign constitutes a legal contract, you should treat it as such. Do not simply sign the contract without fully and completely reading all terms and provisions of the contract. And, more importantly, make sure that you understand the contract in its entirety. What may seem like a harmless provision to you may in have legal consequences of which you are not even aware. Again, it is vital that you contact an experienced oil and gas attorney prior to entering into such agreement.
In addition, keep in mind that, as a legal contract, there is much potential for negotiation. For instance, while Pennsylvania law requires that you be paid a minimum of 12.5% of the gas company’s royalties (and is likely the amount offered by them), you can negotiate for a higher price. It is also important that you are aware that gas companies may permit royalty payments to be reduced based on post-production costs regarding the gas taken from your property, as this can significantly reduce the amount of money you receive. You may also negotiate regarding lease payments as well. Again, with the help of experienced attorneys like us here at Tibbott & Richardson, not only will we negotiate the contract in the most favorable way possible but we will fully explain all potential consequences so you are never, ever left in the dark regarding the implications or consequences of the agreement.
Furthermore, here at Tibbott & Richardson, we have the knowledge, experience and insight to favorably negotiate the terms of your lease agreement far beyond what is stated the gas company’s standard lease agreement to provide you a greater benefit. In addition to obtaining for you a favorable agreement regarding the “boilerplate” provisions provided by the gas companies, we will also address issues that are frequently (and purposefully) absent from the gas companies boilerplate agreements. For example, we will address and favorably negotiate issues for you such as the effect that drilling will have on the other natural resources in your property and will provide for proper repayment or restoration that goes beyond the limited protection that Pennsylvania law provides to landowners, as well as the location of any wells, roads or pipelines that potentially may be located on property, adequate protection for your livestock, crops and personal property, and a limitation of liability should any accidents or incidents occur on your land, among other things.
Remember, the gas and oil companies do not keep your best interest in mind when negotiating contracts, no matter how polite they may seem. When entering into these leasing agreements, it is extremely, extremely important to contact an experienced gas and oil attorney like us here at Tibbott & Richardson to negotiate issues for you on your behalf and to make sure that the contract you sign is as favorable to you as possible. We promise to keep your best interest in mind at all times, because we understand.
1. Paul Carpenter, Marcellus Shale Gas Drilling Critics Get Whammied, THE MORNING CALL, Sept. 09, 2010, available at

2. 58 P.S. § 33.
3. See Kilmer v. Elexco Land Services, 990 A.2d 1147 (Pa. 2010)(holding that an oil and gas lease agreement, which contained language that permitted a one-eighth royalty to be calculated by first deducting any post-production costs, is permitted under Pennsylvania law regarding minimum royalty payments).
Specifically, if the well operator pollutes or diminishes a public or private water supply the operator must restore or replace said water supply. 58 P.S. § 601.208.


Stupid Human Tricks On The Roadside

A History Of The Standardized Field Sobriety Tests

(in other words: Stupid Human Tricks)

I know…history.  Bor-ing!  But keep reading and I promise that you will find the history behind the Standardized Field Sobriety Tests to be interesting.  And, I guarantee that you will learn something too.  For example, you may be surprised to know that certain tests like touching your finger to your nose or reciting the alphabet backwards are NOT standardized tests for DUI and should not be used exclusively to determine if you are impaired due to alcohol.

So, in order to understand what tests police officers are to be using to determine if you are impaired due to alcohol consumption, we must look back in time to 1975.  At this time, there was a wide variation in the types of roadside tests used by police officers to determine whether a driver was under the influence of alcohol.  This was because police officers were not provided with proper, uniform training and, instead, used their own subjectivity to determine whether an individual was intoxicated.  Due to this lack of uniformity, the National Highway Traffic Safety Administration (“NHTSA”) contracted with the Southern California Research Institute (“SCRI”) to conduct research in order to determine which of the roadside tests were most accurate, so that  a standardized procedure for police officers to use nationwide could be developed and implemented.

To do so, SCRI researchers travelled to law enforcement agencies across the country to investigate and determine the most frequently used roadside tests.  Their results yielded six tests that, at that time, were used most often by police officers nationwide to determine whether a subject was DUI (the one leg stand, finger to nose, finger count, walk and turn, tracing with a pencil and paper and horizontal gaze nystagmus or HGN).  Through additional research, SCRI further concluded that only three of these tests – HGN, the walk and turn and the one leg stand, were a reliable indicator of impairment – but only if they were administered in a standardized manner.  In Pennsylvania, even the HGN (following a light or object with your eyes) is inadmissible…..but it is still used very often.  If you have been charged with a DUI, take a look at your Affidavit of Probable Cause.  Chances are you will find it there as one of the indicators of inebriation.

Subsequently, the procedures to be used by a police officer became standardized by NHTSA.  This included standardization of the instructions to be provided to the subject, as well as the clues and criteria to be used by the police officer when assessing the subject’s performance on the tests.  In other words, police officers across the nation were to be trained in the same manner so that uniformity in the administration and interpretation of field sobriety tests could finally be achieved nationwide.

Although it seems as though NHTSA has achieved monumental progress in a relatively short period of time, this does not go without a caveat.  As indicated, the researchers at SCRI themselves cautioned that if any part of the test, including the administrative instructions or the clues and interpretation of the subject’s performance, are not performed in the standardized manner, the validity of these three field sobriety tests are compromised, i.e. they no longer are an accurate indicator of impairment due to alcohol.  As I have myself seen many, many times, this is often the case, as police officers implement their own versions of the tests despite having received the aforementioned NHTSA training.  When this occurs, the SFSTs are an improper measure of impairment due to alcohol and should not be used as evidence of impairment.

These tests are difficult to do when you’re sober.  There are also many other factors (medications, physical problems, location of tests, etc) that contribute to your ability to perform these tests.  Call us at 888-SEE-TRLAW (888-733-8752) before your preliminary hearing so we can make the most of any mistakes or inconsistencies regarding the SFSTs that may have occurred in your case.

What’s The Purpose Of A Preliminary Hearing Anyway?

What’s The Purpose Of A Preliminary Hearing, Anyway?

If you have been charged with a criminal offense, you will eventually receive a notification in the mail advising you of the time and place of your preliminary hearing.  The problem, though, is that you may not understand the purpose of a preliminary hearing or what occurs there.  Most important, you may not be aware that, with the help of competent attorneys like us here at Tibbott Richardson, a preliminary hearing is the first place in which you can vigorously challenge your case – and possibly even obtain a dismissal of the charges.

First, you are probably wondering where preliminary hearings are held.  This may be at one of several locations.  Some are held at the local Magisterial District Justice Office or, alternately, may be held at the local county courthouse (often called “Central Court”) or even at a local prison.

It depends on the county in which you were charged.

Second, you are likely trying to figure out what the purpose of a preliminary hearing is and are asking yourself “what happens at these things?”  The purpose of a preliminary hearing is for the government to establish what is known as a prima facie case against you.  Relatively speaking, this is a low burden of evidence.  It requires only that the government prove that a crime has occurred and it is more likely than not that you were the individual that committed the crime.  Despite this low burden, charges can be dismissed at this level.

To establish a prima facie case against you, the government will proffer the arresting police officer as a witness and attempt to use his testimony to establish the case against you.  This will be done in one of two ways.  The first way is that the District Attorney will call the police officer and question him on direct examination.  Alternately, because the presence of a District Attorney is not required at a preliminary hearing, the police officer may call himself as a witness and testify, without the presence of the District Attorney.

In cases like DUI, the District Attorney (or the arresting officer if no District Attorney is present at the preliminary hearing) will attempt to introduce evidence such as a Blood Alcohol Concentration (BAC) test against you and the arresting officer will testify as to your driving, performance on the Standardized Field Sobriety Tests (if applicable) and any other relevant information.  After the government proffers their witnesses, your attorney may then cross-examine them.

At this point, you may question whether you even need an attorney at the preliminary hearing level.  After all, the burden is rather low.  Despite this low burden, it is very important and highly recommended that you do obtain counsel for your preliminary hearing.  As criminal defense attorneys, it is our job to vigorously challenge the evidence against you, beginning with the preliminary hearing.  Even in cases in which you feel as though there is no chance that your DUI charges can be challenged, this is not always the case.  An arresting officer’s report is not in any way determinative of whether your charges will be bound over in the Court of Common Pleas.  For example, in order that the District Attorney or the arresting officer is permitted to introduce the BAC results at the preliminary hearing, certain procedures must be followed.  If such procedures are not followed, it is my responsibility as a criminal defense attorney to object to this evidence to prevent its improper admission.  Also, if properly handled, testimony at the preliminary hearing can be used to pin down the officers and any other witnesses to their testimony so that they are unable to alter it should your case go to trial.

Additionally, it is my responsibility to eliminate or minimize the evidence against you so that your case is resolved in the best way possible.  This can be done only if you have a highly trained and competent attorney by your side.  I personally have undergone the same training that police officers go through with regard to many facets of DUI.  With this specialized training and knowledge, I am extremely well equipped to cross-examine an arresting officer in your DUI case so that there is no stone left unturned and each piece of evidence against you can be vigorously challenged, beginning with your preliminary hearing.

Why Was I Charged With Two Counts Of DUI?

Why Was I Charged With Two Counts Of DUI?

A lot of people who have been accused of DUI in Pennsylvania wonder why they end up being charged with not one but two DUI offenses at one time.  This is because Pennsylvania law allows a driver to be charged with what I will call two “separate” DUI offenses.  Each can stand independently of the other but, in the unfortunate event that you are found guilty of both offenses, such offenses merge for sentencing.

The first type of DUI requires that government must prove that while you are driving or in actual physical control of a motor vehicle on a highway or roadway of the Commonwealth, you are incapable of safely driving.  In order to prove that you are incapable of safely driving or operating a motor vehicle, the government must establish that you voluntarily consumed alcohol to the point that your physical and mental abilities become substantially impaired due to alcohol and that such substantial impairment occurred when you were in actual physical control of a vehicle.

To be substantially impaired, it must be proven beyond a reasonable doubt that there was a “diminution … in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions.”

Alternately, under Pennsylvania law, the government can charge you with a DUI without proving that you are incapable of safely driving or operating a vehicle.  Rather, the government must simply prove that you drove or were in actual physical control of a vehicle while possessing a certain blood alcohol content (“BAC”).  Under PA law, there are three (3) tiered levels of BAC with which you may be charged:  (1) 0.08 to less than 0.10; (2) 0.10 to less than 0.16; and (3) 0.16 and above.  Again, it is important to stress that your ability to drive safely is not considered at all for this offense.  The only considerations are your BAC and the fact that you were driving or in actual physical control of a vehicle.

So, to convict you of DUI, the government may do one of two things:  (1) prove that you are incapable of safely driving a vehicle due to alcohol consumption; or (2) prove that you drove or were in actual physical control of a motor vehicle while simultaneously possessing a certain prohibited BAC.  The sentence that may be imposed for BAC-based DUIs, however, provide for greater penalties than does DUI which is based upon your inability to drive safely.

Ask yourself if this make sense.  To a lot of people, it does not.  This is because a person who has a certain BAC may be fully capable of driving safely.  This person is not as much harm to the public when compared with the individual who has consumed alcohol and is incapable of safely driving a vehicle.  And, after all, public safety is the reason that we punish DUI offenders, right?

Is Scalping Tickets Legal in Pittsburgh?

Well it’s Steeler Sunday and that has me thinking about ticket scalping. On the way to Heinz Field for every home game, I see scalpers everywhere holding their signs telling people that they need tickets.  I thought I’d share the rules with you, considering scalping without a license IS a crime.

Scalping in Pennsylvania is legal, as long as the seller doesn’t collect $5 or 25 percent more than face value on the ticket, whichever is higher.

In Pittsburgh, a ticket scalper is required to have a license in order to resell tickets, and then they are required to do so in a specially designated area under Fort Duquesne Bridge between PNC Park and Heinz Field.

The license costs $578.00 per year.  As of June, 2010 there were 4 people with licenses in Pittsburgh.  FOUR!

Also, under the city ordinance, penalties reset after each sports event. For example, if a scalper gets a first warning on a Sunday, the process begins again on Monday.

Scalping is a crime with no victim, as long as the tickets are not counterfeit of course.

Have a great Sunday!

Why Field Sobriety Tests Are Unreliable

Why The Standardized Field Sobriety Tests Are Unreliable

You are driving along the highway late at night when you see that a police officer has pulled a car off at the side of the highway.  You notice that the car’s driver is standing in between his vehicle and the police cruiser, with one leg lifted and is attempting to balance.  From experience, you know he is being tested for DUI.

We’ve all seen this happen sometime in our lives and, without knowing better, many of us don’t even question the accuracy of these roadside tests.  We simply accept that if the officer says someone has failed the tests, he or she is “drunk.”  But, what many of us don’t know is that the tests themselves are unreliable.  What follows, then, is that the officer’s conclusions, as drawn from the tests, are unreliable as well.

If you continue reading, you will learn why these tests are not an accurate determination of whether someone is under the influence of alcohol and/or drugs.  You will also learn why it is extremely important to trust experienced attorneys like us here at Tibbott & Richardson, because we have the precise specialized knowledge that is needed to vigorously challenge the roadside tests along with many other issues that may arise during a DUI.

So, why exactly are the Standardized Field Sobriety Tests, the “SFSTs,” unreliable?  Well, for starters, the tests themselves are based upon a faulty premise.  Additionally, certain people should not even be subjected to the tests – but, this is hardly the case in practice.  Also, people may be distracted, nervous or embarrassed as they are subjected to the tests in front of people that they know.  And, finally, the officers themselves do not employ the tests in a standardized manner.  Let’s discuss each of these in turn.

As indicated, the SFSTs themselves are based upon a faulty premise.  What does this mean?  This means that, the reasoning used behind the SFSTs – that a person who fails them is under the influence of alcohol and/or drugs and a person who passes them is sober – is incorrect and unreliable.  This is due to several factors.  Quite simply, it is that some people are not as coordinated as others.  In other words, no matter what the circumstances, they would fail the tests, even without a drop of alcohol in their system.  Conversely, there are those people that are graceful and coordinated in their actions, even in their most intoxicated state.  The SFSTs, by being founded on such a broad and concrete assumption, are unreliable from the get-go.

In addition, the second reason that the SFSTs are unreliable is because several categories of people who should not be subjected to these tests often are and, understandably, these people fail the tests, even if they are not under the influence of alcohol.  These categories include the elderly, those overweight by 50 lbs or more and those with back, leg, or inner ear problems.  Additionally, individuals who, at the time of the test, are wearing shoes with a heel of 2 inches or more should be advised by the officer that they can take them off to complete the test.

Another way the SFSTs are unreliable is because the driver is operating under stressful circumstances and may be likewise nervous or distracted.  It is easy to understand why an individual who is asked to perform the SFSTs by a police officer may be distracted while listening to the officer’s instructions of the test and similarly, during the driver’s own performance of the test.  To start, the driver may not have paid close attention to the instructions because he or she is a bad listener, the sound of cars passing on the adjacent road drowns out the officer’s voice or perhaps the wind is heavily blowing.  Maybe the driver did not realize that the instructions would be given only once and also did not realize what the instructions would entail.  As you can imagine, there are endless circumstances.

Or, it is easy to imagine the driver is distracted by the fact that his or her friends are now watching his or her every move.  So are the people in the vehicles that drive by.  Combine this with the obvious fact that you are in the presence of a police officer, and it is extremely understandable that these people quickly become nervous, stressed and, as a result, distracted.  It is likewise easy to see how that individual is apt to make errors due to these factors, which do not include intoxication.

In addition to all of the aforementioned reasons, another reason which we will discuss that the SFSTs are unreliable is because some police officers do not follow the standardized instructions that they were taught.  Rather, they employ their own, individual versions of the test.  When this is done, the test is no longer standardized and the results reached from the test are inaccurate and unreliable.

It is imperative that if you are charged with a DUI, that you speak to a DUI attorney like those of us here at Tibbott & Richardson, who possess the specialized knowledge, training and experience necessary law to vigorously challenge the prosecution’s case on your behalf.

A Huge Win For PA DUI Defendants

Commonwealth v. Barton-Martin:  Bringing Pennsylvania Law Into Alignment With The United States Supreme Court Holding In Melendez-Diaz v. Massachusetts

A very good friend of mine and fellow attorney, Alicia Genther, had the opportunity to present an oral argument before the Superior Court of Pennsylvania on the Barton-Martin case.  At the time, she was working on the case with one of the country’s best DUI attorneys, Justin McShane.  Alicia and I were discussing how exciting it was for her to have “won” this important decision, and I thought I’d like to share the details of this case.  Congratulations to Attorney Genther and Attorney McShane….thank you for your hard work and dedication to the field of DUI law.

Recently, in Commonwealth v. Barton-Martin, 2010 Pa. Super. 163 (Pa. Super. 2010), the Superior Court of Pennsylvania issued a ruling which substantially changed the landscape of Pennsylvania DUI law.  The Superior Court’s opinion in Barton-Martin, which was issued on September 8, 2010, brings Pennsylvania DUI law into alignment with the United States Supreme Court’s June 2009 decision in Melendez Diaz v. Massachusetts, 129 S. Ct. 2927 (2009).

So, at this point, you may be saying, “I don’t even know what the law was before!  How did it change?”  You also may wonder why is this important to me?  In this post, I will explain what the law was previously, how it changed and why this change matters to you.

First, we will begin with the United States Supreme Court decision in Melendez-Diaz.  In this case, the defendant was charged with cocaine possession.  At trial, the state’s attorney attempted to introduce “certificates of analysis” into evidence, which conclusively identified the substance in question as cocaine.  The state attempted to do so without the presence of the laboratory analyst, who was the person that had performed the analysis on the substance and had concluded that it was cocaine.  In other words, the attorney for the state of Massachusetts attempted to introduce this single piece of paper as prima facie evidence that the defendant possessed a certain quantity of cocaine, without a live person to testify that the procedures utilized in the collection, preparation and testing of the substance were performed without error.

The defendant’s attorney objected to the admission of this evidence and argued that its admission violated the defendant’s rights under the Sixth Amendment, because the laboratory analyst was not declared to be unavailable and was not subject to prior cross examination by the defendant.  The defendant’s objection was overruled and the state’s attorney was permitted to introduce the evidence against the defendant, which ultimately resulted in a guilty verdict in the trial court.

The defendant then appealed to the Appeals Court of Massachusetts and again argued that his Sixth Amendment Confrontation Clause rights were violated by the admission of the affidavits.  The defendant alleged that the affidavits included in the certificate of analysis constituted a testimonial statement against him because it was introduced absent the defendant’s first having an opportunity to confront the individuals who had taken part in the collection and forensic analysis of the substance identified as cocaine.  The Appeals Court rejected the defendant’s claim, citing prior Massachusetts law, which held that the authors of such certificates were not subject to Confrontation under the Sixth Amendment.

The defendant again appealed to the Supreme Judicial Court of Massachusetts, who refused to review the case, thereby affirming the defendant’s conviction.

Thereafter, the defendant in Melendez-Diaz appealed to the United States Supreme Court, which concluded that his Sixth Amendment rights were, in fact, violated.  The Supreme Court indicated that its holding in Melendez-Diaz was nothing more than a straightforward application of its prior precedent in Crawford v. Washington, where the Court had held that the Sixth Amendment guaranteed a defendant’s right to confront those testify against him and, unless the witness who testifies against the defendant is declared unavailable or the defendant had a prior opportunity to cross-examine that witness, such evidence is inadmissible.

In its opinion in Melendez-Diaz, the United States Supreme Court began its analysis by first rejecting the state’s argument that the laboratory analysts were not accusatory or unconventional witnesses and thus, not subject to confrontation.  The state’s attorney argued that the laboratory analysts should be exempted from Confrontation because they did not observe the crime or any action related to it and their testimony was not provided in response to interrogation.  Disagreeing with the state’s attorney, the Court stated that the laboratory analysts were subject to the Confrontation Clause and that their affidavits, though not provided in response to police interrogation, were provided in response to a police request.  Moreover, the Court determined that the lab analyst was a conventional or accusatory witness because their affidavits proved a fact necessary for the defendant’s conviction.

Next, despite the state’s argument to the contrary, the Melendez-Diaz court concluded that the affidavits at issue were testimonial statements.  To reach this conclusion, the Court looked to its prior Crawford decision, where it had stated that the core class of testimonial statements subject to the Confrontation Clause included “affidavits … prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially … extrajudicial statements contained in formalized testimonial maters, such as affidavits…”

In addition, the Crawford Court also indicated that this included “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” were testimonial statements.

Using this reasoning, the Melendez-Diaz Court quickly concluded that the statements at issue – the affidavits in the certificates of analysis – were testimonial statements.

Next, the Melendez-Diaz Court rejected the state attorney’s argument that, because the affidavits were performed by a laboratory professional that likely had no real connection to the defendant or had any interest in the outcome of the defendant’s trial, the affidavits were the result of neutral, scientific testing.  The Court, perhaps surprisingly to some people, indicated that not all forensic analyses performed are the result of neutral, scientific testing and even used statistics evidencing nationwide laboratory manipulation of forensic data.  In addition, the Court, in its increasingly famous line, stated that “[c]onfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.”

In other words, a laboratory analyst’s lack of training is clearly an important factor to be discussed during cross-examination.

The Court also declared that the affidavits contained in the certificate of analysis could not bypass the Confrontation Clause, even if they are admissible under a hearsay exception.  Finally, the Court noted that the burden could not be placed upon the defendant to subpoena the analyst at trial and, therefore, the fact that the defendant could have subpoenaed the analyst was irrelevant to its determination.  This is because doing so would shift any adverse effects to the defendant if and when such a witness failed to show at trial.  As would be expected, this is impermissible.  It does not matter, continued the Court, that the burden on the prosecution may be increased as a result, because the Confrontation Clause cannot be disregarded for convenience.

The Court in Melendez-Diaz therefore concluded that the defendant’s rights under the Sixth Amendment had been violated and reversed and remanded the case to be determined in accordance with its opinion.

Now, we will discuss the Pennsylvania case of Commonwealth v. Barton-Martin, where the defendant was charged with two counts of DUI.

At trial, the defendant’s attorney objected to the admission of the BAC results based upon a Sixth Amendment Confrontation Clause violation because the Commonwealth had not produced the phlebotomist or the laboratory analyst to testify during the Commonwealth’s case-in-chief.  Rather, to lay the foundation for the admission of the BAC results against the defendant, the Commonwealth had proffered only the Custodian of Records of the hospital where the legal blood draw was performed. Stated differently, the Commonwealth was simply doing what it had done many times in the past under the theory that such evidence constituted business records which were admissible through the use of a document custodian.

The defendant’s objection was overruled, despite the defendant’s attorney referencing the then-pending Melendez-Diaz case in the United States Supreme Court.  As a result, in an effort to mitigate the damage that had already been done by being prevented from cross-examining the laboratory analyst, the defendant called the laboratory analyst on direct examination.

Ultimately, however, the defendant was convicted on both DUI counts.

This takes us to June 2009, when the aforementioned Melendez-Diaz opinion was issued by the United States Supreme Court.  At this time, as previously indicated, the defendant in Commonwealth v. Barton-Martin had already been charged and convicted of two separate counts of DUI.

Following her conviction in the trial court, the defendant appealed to the Superior Court of Pennsylvania.  It was during this interim of time from when she was convicted and the date upon which her appeal brief was due that the United States Supreme Court had issued the Melendez-Diaz decision.

On appeal, defendant argued that, pursuant to the recent Melendez-Diaz decision, her Sixth Amendment right to confront the witnesses brought against her was violated by the admission of the laboratory report containing the BAC results into evidence.

This was because neither the laboratory analyst who had performed the legal analysis on her blood nor the phlebotomist who drew her blood were called as Commonwealth witnesses during the Commonwealth’s case-in-chief and neither witness was subject to prior cross-examination or, alternately, declared to be unavailable.

On the other hand, the Commonwealth argued on appeal that Melendez-Diaz was not retroactively applicable to the defendant’s case.  As such, the Commonwealth alleged that Commonwealth v. Kravtonka, which held that the testimony of a custodian of records from the hospital where the legal blood draw was performed does not violate the Confrontation Clause, was directly applicable.

As such, the Commonwealth alleged that the defendant’s Confrontation Clause rights were not violated because they had, quite simply, did the same thing as they had many times prior.

The Superior Court’s opinion in Barton-Martin contains several substantial determinations whose impact on Pennsylvania DUI law should not be understated.  First, the Superior Court determined that the laboratory result constituted testimonial evidence because the defendant’s BAC – an essential element of 75 Pa. C.S.A. § 3802(c) –  was proven simply by the lab report’s admission into evidence.  Next, the Superior Court noted that the fact that the defendant called the laboratory technician on direct examination during the defendant’s case-in-chief did not negate the lack of confrontation provided to the defendant.  In other words, the Superior Court determined that the only way to satisfy the Confrontation Clause for a BAC-based DUI conviction requires the Commonwealth to provide the laboratory analyst as an actual witness to be cross-examined by the defendant unless, of course, the analyst is judicially declared to be unavailable or the defendant had a prior opportunity to cross-examine him or her.

Additionally, the Superior Court determined that Melendez-Diaz was, in fact, retroactively applicable to this case.  This determination was reached at oral argument, where the defendant’s counsel noted that the United States Supreme Court itself had retroactively applied Melendez-Diaz to its more recent case in Briscoe v. Virginia.

In response, the District Attorney conceded Melendez-Diaz’s retroactive applicability to the defendant’s case.

As you may imagine, Barton-Martin brings about a long anticipated change for DUI law in Pennsylvania.  Obviously, the Court’s opinion in Barton-Martin stands in direct conflict with its prior precedent; however, it did not expressly overrule Commonwealth v. Kravtonka.

Nevertheless, Barton-Martin is a huge win for DUI defendants across the Commonwealth and ensures that the Commonwealth can no longer obtain a BAC-based DUI conviction by ex parte out-of-court reports.  Rather, for the BAC result to be admitted as evidence, the Commonwealth must at a minimum proffer the laboratory technologist who performed the legal BAC analysis.