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COMMONWEALTH PENNSYLVANIA v. ROBERT LEVESQUE (10/08/76)

decided: October 8, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT LEVESQUE, APPELLEE



COUNSEL

Marion E. MacIntyre, 2nd Asst. Dist. Atty., Reid H. Weingarten, Harrisburg, for appellant.

Joshua D. Lock, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, Nix and Manderino, JJ., concur in the result.

Author: Eagen

[ 469 Pa. Page 120]

OPINION OF THE COURT

On April 19, 1975, an automobile operated by Robert Levesque struck a parked automobile in the City of Harrisburg. Observers called the Harrisburg Police and, within minutes, an officer of the Harrisburg Police Department responded. The officer initially spoke to two

[ 469 Pa. Page 121]

    youths who said they saw Levesque's automobile weave down the street immediately before the collision. The officer then proceeded to speak to Levesque who had stopped his automobile approximately one block away. Levesque, who was standing alongside his vehicle with the ignition and lights off, admitted that he was the operator of the vehicle but denied striking the parked automobile. The officer noticed a strong odor of alcohol on Levesque's breath. The officer then examined the parked automobile and found a piece of chrome strip matching Levesque's vehicle attached to the damaged portion of the parked vehicle. The officer then placed Levesque under arrest without a warrant for operating a vehicle while under the influence of intoxicating liquor.*fn1 Levesque was thereupon taken to City Hall where a written complaint specifying the offense and underlying facts was filed against him and a Mobatt test, which registered 0.213% alcohol in his blood, was administered.

Following denials of motions to suppress the evidence secured by the police "as a result of the unlawful arrest" and to quash the return of the District Justice, Levesque was convicted in a non-jury trial of driving while under the influence of intoxicating liquor. He was immediately sentenced to eighteen months probation and fined $250. However, later when ruling on a motion for a new trial, the court en banc of Dauphin County concluded a conflict existed between the Act of July 20, 1974, P.L. 522, No. 177, § 2, 75 P.S. § 1204 [Supp.1975-76]*fn2 and Pa.R.Crim.P.

[ 469 Pa. Page 122101]

.*fn3 Relying on Article V, Section 10(c) of the Pennsylvania Constitution,*fn4 the Court ruled that the conflict must be resolved in favor of the rule of criminal procedure. On that basis, the court found the warrantless arrest in this case to be constitutionally defective and granted the motion for a new trial, stating that the pretrial motions to suppress evidence and to quash the

[ 469 Pa. Page 123]

District Justice's return should have been granted. The Commonwealth filed an ...


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