Judges Opinions, — October 31, 2012 10:10 — 0 Comments

Commonwealth vs. McDonald No. CP-38-CR-1189-2012

Crimes – Bail – Purpose of Bail – Constitutionally Guaranteed – Pa.R.Crim.P. – Drug or Alcohol Use – Motion to Modify Bail.

 

Bail has long been recognized as a procedure whereby an individual defendant provides a form of collateral in exchange for the defendant’s release from custody.

The right to bail is guaranteed for all non-capital defendants by Article 1, Section 14 of the Pennsylvania Constitution.

Generally speaking, bail is defined as the security or other guarantee required and given for the release of a person, conditioned upon a written undertaking, in the form of a bail bond, that the person will appear when required and comply with all conditions set forth in the bail bond.

The fundamental purpose of bail is to assure the presence of the accused at trial.  Although a court has the freedom within the proper use of its discretion to establish the amount of bail and set conditions, the amount of bail and the conditions must relate to the likelihood of flight by the accused.

The Pennsylvania Rules of Criminal Procedure authorize the imposition of bail conditions.  Rule 526 sets forth standard bail conditions that must be imposed in all cases.  Rule 527 authorizes additional special conditions that are designed to ensure the defendant’s appearance and compliance with the conditions of the bail bond.

Pa.R.Crim.P. 523 sets forth factors that a court must consider in assessing bail.  One of those conditions is whether the defendant is addicted to alcohol or drugs.  Implicit in Rule 523 and the comment to Rule 527 is the recognition that drug and alcohol abuse can dramatically affect the likelihood of an individual’s future appearance in court.

When the defendant is known to have an alcohol or drug problem, the bail authority can require that the defendant submit to drug or alcohol testing.  The bail authority can also require that the defendant refrain from excessive use of alcoholic beverages or from any use of illegal drugs.

Constitutionally, there is a clear distaste for the imposition of pre-conviction sanctions.  The reason for this distaste is obvious—in our system where the accused is presumed to be innocent, punishment prior to a finding of guilt is an anathema.

In the Court’s opinion, MDJ’s must have the ability to respond to concerns about a defendant’s alcohol and drug fueled irresponsibility by imposing a “no alcohol” condition of bail.  Therefore, the Court held that a MDJ possesses the authority to impose a no drinking bail condition.  Based upon information that was not available to the MDJ, the Court also concluded that Defendant did not fall within the category of persons who should be subject to a no drinking bail condition.  Consequently, the Court granted Defendant’s Motion to Modify Bail by vacating the “no alcohol” bail condition as of the date of the Court’s Order.  In reaching this conclusion, the Court held that the imposition of a “no drinking” bail condition must be evaluated based upon the unique background of each case and on the characteristics of each Defendant.

Motion to Modify Bail Condition.  C.P. of Lebanon County, Criminal Division, No. CP-38-CR-1189-2012.

Pier N. Hess, Esquire, for Commonwealth

Christopher J. Coyle, Esquire, for Defendant

 

ORDER OF COURT

 

AND NOW, this 12th day of October, 2012, upon consideration of the arguments submitted by parties and in accordance with the attached Opinion, the Order of this Court is as follows:

1.   The Defendant’s challenge to the decision of MDJ Garver to impose a “no alcohol” condition of bail is denied.

2.   Based upon additional information presented to us at a hearing on September 12, 2012, the Defendant’s Motion to Modify Bail is granted.  The special “no alcohol” condition of bail is vacated effective immediately.

CHARLES, J., October 12, 2012

 

From an analytical standpoint, the differences between “Can we?” and “Should we?” are as vast as the Pacific Ocean.  In the case before us, the Defendant argues that a Magisterial District Judge (MDJ) lacked the authority to impose a bail condition that prohibits consumption of alcohol.  When we examine a “no drinking” bail condition from the “Can we?” perspective, we respond by concluding “Yes.”  On the other hand, when we examine this bail condition using a “Should we?” model, our answer is “Not always.”

 

I.    FACTS

On June 27, 2012, the Defendant was charged with Driving Under the Influence of Alcohol.  According to the Affidavit of Probable Cause, the Honda Pilot operated by the Defendant struck a mailbox and proceeded down an unknown roadway.  Officer Jeff Arnold of the South Londonderry Township Police Department “caught up” with the Honda Pilot on State Route 322.  Officer Arnold observed the Pilot vehicle cross over the fog line at least three times.  He effectuated a traffic stop.  Officer Arnold’s Affidavit described the Defendant’s demeanor as “cocky.”  She refused to perform a preliminary breath test and failed three field sobriety tests.  Thereafter, she was transported to the Derry Township Police Department, where she was measured with a .142 blood alcohol concentration via a sample of her breath.

Defendant appeared before MDJ Garver on August 16, 2012.  MDJ Garver released the Defendant on unsecured bail.  Among the bail conditions was one issued by MDJ Garver that stated “no alcohol.”   Curiously, the Defendant refused to sign a statement that read:  “I agree that I will appear at all subsequent proceedings as required and comply with all the conditions of the bail bond.”

Once the Defendant’s case was bound over to this Court, the Defendant filed a Motion to Modify Bail Condition.  She asked us to strike the bail condition preventing consumption of alcohol.  A hearing was conducted on September 12, 2012 at which the Defendant testified.   She stated that she has resided for nine years in Wernersville, Berks County.  For eleven years, the Defendant has been employed by the American Cancer Society in Hershey.  She denied any prior criminal record and stated that her driver’s license had never been suspended or revoked for any reason.

The Defendant testified that she is a social drinker.  She indicated that she has never received treatment for any drug and alcohol problems.  In connection with an ARD application, the Defendant underwent a drug and alcohol evaluation at the Caron Foundation.  The evaluation report was admitted as Exhibit A of the September 12, 2012 hearing.  That evaluation concluded:  “Ms. McDonald does not meet the criteria for further substance abuse counseling and therefore no treatment is being recommended at this time.”  The Commonwealth did not rebut the Defendant’s evidence.

During oral argument presented to the Court, both counsel focused upon the question of whether MDJ Garver had the authority to impose a “no drinking” condition of bail.  The Defendant took the position that imposing a “no alcohol” condition merely because a person is charged with DUI is contrary to public policy.  In his subsequent Brief, the Defendant argued that the “no drinking” condition was “unsupported by any facts, even when the record is read in the light most favorable to the Commonwealth.”  (Defendant’s Brief at 9).  In response, the Commonwealth argued simply and succinctly that “no drinking” is an appropriate non-monetary condition of bail that can be imposed by an MDJ.

After receiving the parties’ briefs and conducting our own research, it became apparent that no published precedent exists with respect to whether or when a “no drinking” condition of bail can be imposed.   Because of the lack of prior precedent, we have chosen to write this Opinion in support of our opinion that MDJ Garver possessed the authority to do what he did.  At the same time, we will be vacating MDJ Garver’s condition based upon all of the addition information presented to us that was not available to MDJ Garver when he rendered his decision.  The reasons for our decisions will be set forth below.

 

II.  DISCUSSION

“Bail has long been recognized as a procedure whereby an individual defendant provides a form of collateral in exchange for the defendant’s release from custody.”  Commonwealth v. Chopak, 615 A.2d 696, 702 (Pa. 1992)(internal citations omitted).  The right to bail is guaranteed for all non-capital defendants by Article 1, Section 14 of the Pennsylvania Constitution.  Generally speaking, bail is defined as “the security or other guarantee required and given for the release of a person, conditioned upon a written undertaking, in the form of a bail bond, that the person will appear when required and comply with all conditions set forth in the bail bond.”  Pa.R.Crim.P. 103.

“The fundamental purpose of bail is…to assure the presence of the accused at trial.”  Ruckinger v. Weicht, 514 A.2d 948, 949 (Pa.Super. 1986).  All questions regarding bail must therefore be viewed through the lens created by the question “Will this bail facilitate the defendant’s appearance in court whenever required?”  Commonwealth v. Truesdale, 296 A.2d 829 (Pa. 1972).  Stated differently, “[w]hile the court has freedom within the proper use of its discretion to establish the amount of bail and set conditions, this must relate to the likelihood of flight by the accused.”  Ruckinger v. Weicht, supra at 949.

The Pennsylvania Rules of Criminal Procedure authorize the imposition of bail conditions.  Rule 526 sets forth standard bail conditions that must be imposed in all cases.  Pa.R.Crim.P. 526.  Rule 527 authorizes additional special conditions that are “designed to ensure the defendant’s appearance and compliance with the conditions of the bail bond.”  Pa.R.Crim.P. 527(A)(3).  We have found no appellate or trial level precedent that would help us to refine the scope of non-monetary bail conditions that can be imposed under Rule 527.[1]  However, we have found guidance in another Rule of Criminal Procedure and in the official comment to Rule 527.  Pa.R.Crim.P. 523 sets forth factors that a court must consider in assessing bail.  One of those conditions is “whether [the defendant is] addicted to alcohol or drugs.”  Pa.R.Crim.P. 523(A)(5).  Even more explicit is the official comment to Pa.R.Crim.P. 527.  That comment states:

 

When, for example, the defendant is known to have an alcohol or drug problem, the bail authority could require that the defendant submit to drug or alcohol testing.  The bail authority could also require that the defendant refrain from excessive use of alcoholic beverages or from any use of illegal drugs.

 

Official comment, Pa.R.Crim.P. 527.

 

From the above, we conclude that an MDJ possesses the authority to impose a “no alcohol” condition of bail.  Implicit in Rule 523 and the comment to Rule 527 is the recognition that drug and alcohol abuse can dramatically affect the likelihood of an individual’s future appearance in court.  Time and again, we have encountered alcoholics and drug addicts who elevate their need to partake above all other considerations, including the need to appear in court.  Time and again, we have been told by defendants in bench warrant court that they failed to appear because they were drunk, high or both.  Time and again, we have observed people who act irresponsibly and out of character while intoxicated or high.  In our opinion, courts and MDJs must have the ability to respond to concerns about a defendant’s alcohol and drug fueled irresponsibility by imposing a “no alcohol” condition of bail.  Therefore, we answer the threshold question of whether a court can impose a no drinking bail condition with a resounding “yes.”

With the above being said, we agree with the Defendant that a “no drinking” condition of bail is not one that “should be” imposed in each and every case.  Constitutionally, there is a clear “distaste” for the imposition of pre-conviction sanctions.  See Commonwealth v. Truesdale, 296 A.2d 829, 834 (Pa. 1972).  The reason for this “distaste” is obvious – in our system where the accused is presumed to be innocent, punishment prior to a finding of guilt is an anathema.

We also have a practical concern about the enforcement of pre-conviction bail conditions.  Who is going to supervise the bail conditions?  How is compliance going to be investigated and enforced?  Judges are not equipped to personally supervise bail.  Police officers must respond to calls, investigate events and enforce laws.  They cannot be expected to supervise persons free on bail.  The Lebanon County Probation Department is responsible for supervising thousands of sentenced individuals.  The caseload of each probation officer is far too large to expect that he/she would be able to meaningfully investigate and supervise bail conditions.

We understand that special arrangements for enforcement and supervision of bail can be made in extraordinary situations.  However, the unfortunate reality is that Lebanon County lacks the resources to meaningfully supervise “no drinking” bail conditions if they are imposed in each and every case.  Therefore, we respond to the question of “should we” impose a no drinking bail condition with a response of “not always.”

All of the above leads us to the question of what we should do with respect to the Defendant in this case.  In answering this question, we will first go back in time to evaluate the situation that confronted MDJ Garver at the time of preliminary arraignment.  This is what MDJ Garver knew at that time:

 

(1) The Defendant was seen striking a mailbox while driving her Honda Pilot SUV;

(2) The Defendant left the scene after striking the mailbox;

(3) When police caught up with the Defendant’s vehicle, it was driving very erratically;

(4) When stopped, the Defendant denied knowing that she hit a mailbox;

(5) The Defendant’s demeanor was “cocky;”

(6) The Defendant could not pass any field sobriety tests;

(7) The Defendant submitted to a breath test that revealed a blood alcohol content

significantly above the legal limit of .08; and

(8) At the time of the preliminary arraignment, the Defendant refused to sign a standard

bail form that included a promise that she would comply with conditions of bail,

including the condition of “no alcohol.”[2]

 

The above facts raise significant concerns about the Defendant’s attitude and sobriety.  Accordingly, we certainly will not second guess MDJ Garver’s decision to impose a “no alcohol” condition upon the Defendant.

Since MDJ Garver encountered the Defendant, additional information has been presented to this Court via the hearing that occurred on September 12, 2012.  Among the additional information is the following:

 

(1) The Defendant and her husband own their own home in Wernersville, PA;

(2) The Defendant has been a resident of Berks County for eighteen years;

(3) The Defendant has been employed by the American Cancer Society for eleven years;

(4) The Defendant has volunteered in community activities;

(5) This is the Defendant’s first DUI.[3]  In fact, the Defendant has never been charged

with any other crime;

(6) The Defendant has a good driving record and has never been the subject of a license

suspension proceeding; and

(7) A drug and alcohol evaluation concluded that the Defendant was a social drinker

who did not meet the criteria for further substance abuse counseling.

The additional information provided to us on September 12, 2012 causes us to conclude that this Defendant does not fall within the category of defendants for whom unusual resources should be expended to enforce bail.

 

III. CONCLUSION

Over the years, we have seen quite a few belligerent, uncooperative and/or irresponsible substance abusers for whom the type of condition imposed by MDJ Garver would be ideal.  On the other hand, we have also encountered many citizens who commit crimes during an isolated episode of poor judgment.  These are good people who have made mistakes.  We conclude, based upon information that was not available to MDJ Garver that this Defendant falls within the latter category.  We also conclude that those who fall in the latter category should not generally be subject to non-standard “no drinking” bail conditions.

A Court Order will be entered today affirming MDJ Garver’s initial bail condition.  By doing so, we answer the “Can we?” query in the affirmative.  On the other hand, we will vacate the “no alcohol” bail condition going forward.  In answering the “Should we?” question in the negative, we hold that imposition of a “no drinking” bail condition must be evaluated based upon the unique background of each case and the individual characteristics of each defendant.

 



[1]           Although not direct or clear precedent, we note that even more restrictive conditions such as home confinement and electronic monitoring have been approved by the current Chief Justice of Pennsylvania’s Supreme Court.  In Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 2001), Justice Castille stated in a concurring opinion:  “[H]ome confinement is an appropriate non-monetary condition of release on bail under [the rule governing bail].  Notably, the Comment to [the rule governing bail] contains a listing of examples of appropriate conditions of release on bail, including ‘restricting the defendant to his or her residence or a supervised halfway house…”  Id. at 503 (citations omitted).

 

[2] We will not underestimate MDJ Garver’s ability to eyeball and interact with the Defendant.  This type of personal contact cannot be replicated within a stale black and white written record.

 

[3] We consider this factor to be significant.  Someone who has a prior DUI should have learned from experience how important it is to regulate his/her consumption of alcohol.  If he/she could or would not do so, that would raise a huge red flag for us.

 

About the author

Ben has written 982 articles for Lebanon County Legal Journal

Search