Randall T. Hetrick is trying to get a key section of the state’s drunken driving law overturned, but hasn’t had any luck.

His latest setback came Monday when Superior Court upheld the sentence of a South Pymatuning Township man convicted in two drunken driving cases.

Hetrick, a private defense attorney and assistant public defender, is challenging a provision of the law that says the blood-alcohol level of a person suspected of drunken driving should not be tested sooner than two hours of being stopped.

As explained in its Christopher Egelsky decision, a three-judge panel of Superior Court said the previous drunken driving law required police to determine a person’s BAC at the time they were driving.

State Supreme Court deemed the law vague and overbroad because there is no way to determine someone’s BAC at the exact time they are stopped. There is a delay between the stop and when the person can be taken to a hospital that is certified to draw blood. This created the possibility of prosecuting someone whose BAC was below the legal limit — which was 0.10 percent at the time — when the stop was made, but had risen by the time blood was drawn.

Because of the delay required in the new law, which lowered the legal limit to 0.08, a person’s body has time to process alcohol and any rise in BAC will have been complete by the time blood is drawn. This “eliminated the possibility that a motorist’s BAC may have in fact been within legal limits while he was driving,” Superior Court said in its Egelsky ruling.

Hetrick argues the law still is vague and overbroad.

Superior Court said a law is vague if an ordinary person cannot understand what conduct is prohibited, which encourages arbitrary and discriminatory enforcement.

The court went on to say a law is overbroad if it punishes constitutionally protected activity as well as illegal activity.

In another case before Superior Court, Hetrick said ordinary people cannot understand what is prohibited in the drunken driving law, and that it seeks to punish not those who had BACs above 0.08 while driving, but those who exceeded the limit within three hours of driving.

The bar for convincing a court that a law is unconstitutional is very high. Previous court cases have determined that courts should “pay substantial deference to the judgment and intention of the legislature,” Superior Court said. A law should not be declared unconstitutional unless it “clearly, palpably and plainly” violates the Constitution.

While Mercer County judges have upheld the drunken driving law, judges in other counties have declared it unconstitutional, Hetrick said. He is waiting for a definitive decision from state Supreme Court so he’ll know how to proceed with future cases. In the meantime, he has been appealing appropriate cases, and has about 15 pending before Superior Court.

If he’s successful, “I think it would blow up the DUI law and they would have to write it all over again,” Hetrick said.

Hetrick said he has not decided whether to appeal the Egelsky case to state Supreme Court.

Egelsky was arrested at 5:15 a.m. Aug. 8, 2005, on Carlisle Road in West Salem Township, and 7:52 p.m. Aug. 25, 2005, on Route 18 in West Salem, Greenville-West Salem Township police said.

In both cases, his BAC was above 0.23 percent.

Mercer County Common Pleas Judge Christopher J. St. John found Egelsky guilty of drunken driving, driving without a license, speeding and careless driving, and sentenced him to 1 to 2 years in Mercer County Jail, a $5,000 fine and 3 years’ probation.

Egelsky has another case pending in county court and Superior Court, but that case concerns his refusal to have blood drawn when he was arrested for drunken driving and three traffic violations at 8 p.m. Sept. 24, 2005, on Orangeville Road in South Pymatuning Township.

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