PennDOT regs and state law conflict
Drug/DUI arrests appealed; drivers say window-tinting wasn't cause to be stopped
Daily Record/Sunday News
You might not think window tint on motor vehicles is a constitutional right, but the way the rules and regulations are written the argument could be made, York County assistant public defender George Margetas says.
The public defender's office is representing six defendants on appeal for convictions that resulted after they were stopped last year by Penn Township Police Officer Steve Gebhart for suspected illegal sun screening.
If those appeals are successful, those drivers' convictions -- driving under the influence, possession of marijuana and possession of drug paraphernalia -- could be dismissed because of lack of probable cause to be stopped in the first place.
Margetas said he understands the need for police officers' safety and the apparent intent to protect officers when the legislature enacted the sun screen statute.
"No one wants to see a routine stop turn into a melee," he said. "And I don't think the officer necessarily is doing anything wrong."
But "as far as I know (all six vehicles) would pass (state) inspection," he said, noting none of the drivers were cited for improper sunscreening.
Penn Township Police Chief Russell Rhodes said most drivers are not cited in his jurisdiction for sunscreening but are given "faulty equipment" notices to bring their vehicles into compliance.
But, he added, once a driver is stopped, "a good officer ... looks for anything out of whack."
"When the driver rolls down the window if the officer smells an illegal substance, his duty is to act on that," he said.
Last year, a Dillsburg man took his window tint conviction all the way to the Pennsylvania Superior Court and won. Ben Brubaker, representing himself, argued that the PennDOT regulations concerning sun screening exceeds the state vehicle regulations and the legislative intent governing tinted windows.
A PennDOT regulation states windows must allow 70 percent transmittance of light. The state statute does not address opaqueness beyond the requirement that a person -- law enforcement -- must be able to see into the vehicle.
"A (PennDOT) regulation cannot be more strict that the actual (state) statute," Margetas said. "That regulation is trumped by the statute.
"That makes it more of a constitutional question. Because of the Brubaker case, I believe we have grounds to challenge."
He said, "As much as law enforcement hates to hear it," illegal window tinting should be a secondary citation as is the state's seat belt law.
Police cannot stop someone for not wearing a seatbelt but can cite a driver for that if another offense is the reason for the traffic stop.
Rhodes said the Brubaker decision "has caused us plenty of havoc."
"Ever since, we've had a tremendous outcry when a person is stopped for window tint," he said.
He said it was coincidence that the six appeal cases were all traffic stops conducted by Officer Steve Gebhart.
"Officer Gebhart is a very well-trained officer who is aggressive toward drug and DUI enforcement and he's good at it," Rhodes said, adding that Gebhart leads his department in DUI arrests.
Rhodes said only one citation is issued out of "every four or five stops" made by his officers. He said officers typically give drivers a warning to correct a problem with their vehicles.
"The objective is to improve public safety," he said.
As for window tint stops, Rhodes said, "We have a good barometer. Most of our (squad) cars are right at the threshold. So, if your windows are darker than ours ...."
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