Appeal from an Order of the Court of Common Pleas of Montgomery County at No. 2994 April Term, 1975. NO. 950 OCTOBER TERM, 1976.
Bert M. Goodman, Assistant District Attorney, Norristown, and Eric J. Cox, Assistant District Attorney, Conshohocken, for appellant.
Arthur L. Jenkins, Jr., Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result of this Opinion. Hoffman, J., files a concurring opinion, in which Price, J., joins.
[ 247 Pa. Super. Page 20]
This is an appeal by the Commonwealth from an order of the court below dismissing on its own initiative a complaint in which appellee is charged with driving an automobile while under the influence of alcoholic beverage.
On April 4, 1975, appellee was apprehended near the scene of an accident in which he was allegedly involved. At the time the officer arrived, appellee's car had been pulled to the side of the road, the engine left running and appellee was slumped over the wheel. Appellee's fifteen year old son was in the car with him. The officer was acquainted with appellee and knew him to be a resident of the community in which the encounter occurred. Appellee refused the officer's request to submit to a breathalyzer test and was generally both uncooperative and demonstrative in his responses to the officer. The officer threatened to arrest him for disorderly conduct, but did not do so when appellee quieted down. The officer locked appellee's car, drove him and his son home and advised him that he would receive a criminal complaint in the mail charging him with driving
[ 247 Pa. Super. Page 21]
while under the influence of alcoholic beverage: Motor Vehicle Code, 75 P.S. § 1037.
Such a criminal complaint was filed on April 7, 1975. Appellee was given a preliminary hearing on May 13, 1975, an indictment approved on July 7, 1975, and trial scheduled for January 14, 1976.
On January 14, 1976, immediately prior to the scheduled opening of the trial, the trial judge, while hearing a motion to suppress evidence, ruled on his own motion that the officer's treatment of appellee amounted to an arrest at the scene of the accident and that the complaint should be dismissed because appellee had not been taken before a magistrate for a hearing immediately following his arrest. The trial court construed an immediate hearing to be a requirement of § 1204 of the Motor Vehicle Code, 75 P.S. § 1204 when proceedings are initiated by an arrest. This section of the Code provides in part that --
"A peace officer may, upon view or upon probable cause without a warrant, arrest any person violating section 1037 of this act in cases ...