Appeal from order of Court of Common Pleas of Franklin County, No. 199 of 1971, in case of Commonwealth of Pennsylvania v. Jerome J. Kloch.
Edward S. Newlin, Second Assistant District Attorney, and John R. Walker, District Attorney, for Commonwealth, appellant.
Blake E. Martin and Thomas H. Crider, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
[ 221 Pa. Super. Page 325]
This is an appeal by the Commonwealth from the granting of appellee's motion to suppress the results of a blood alcohol test.
On January 29, 1971, two State Police troopers, while on patrol, received a dispatch that a motor vehicle was parked on the traveled portion of Legislative Route 340 with its lights on and the motor running. Upon arriving at the scene, the troopers found an automobile parked in the southbound lane facing south, with both left wheels and one-half to three-quarters of the left side of the vehicle in the roadway. The remainder of the vehicle and the two right wheels were on the shoulder of the road. The vehicle's lights were on and the motor was running.
One of the troopers approached the car and observed appellee asleep or unconscious, leaning against
[ 221 Pa. Super. Page 326]
the left front door. The trooper knocked on the window to awaken appellee, and when the appellee opened the car's window, the trooper noted a strong odor of alcohol. Appellee was then asked for his operator's license and registration. Appellee had difficulty producing the cards, and he handed several different cards to the trooper before the correct cards were pointed out to him.
Appellee was given the Pennsylvania State Police field sobriety test, and his actions were consistent with intoxication.*fn1 After advising appellee that he would be arrested for operating a motor vehicle under the influence of intoxicating liquor, the troopers took appellee back to the State Police Barracks where appellee agreed to submit to a blood alcohol test given by a doctor. The test indicated that appellee had a blood alcohol level of 0.18 per cent.
Subsequently, an application was made on behalf of appellee to suppress the blood alcohol test. A hearing was scheduled, and as a result of that hearing the lower court ruled that the warrantless arrest of appellee was invalid.
The lower court reasoned that a warrantless arrest for a misdemeanor not involving a breach of the peace may be made only on view either at the time of the commission of the offense, immediately thereafter, or in fresh pursuit of the offender. In the instant case, according to the lower court, the trooper never observed appellee "operating" his motor vehicle, and therefore the arrest was illegal because ...