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filed: August 22, 1980.


No. 835 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Crawford County, Criminal Division, at No. 661 of 1976.


Emil M. Spadafore, Jr., Meadville, for appellant.

Robert S. Bailey, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 281 Pa. Super. Page 87]

Appellant is appealing his conviction for Driving While Intoxicated on the basis of non-compliance with the procedural requirements of the then-in-effect § 1204(a) of the Motor Vehicle Code, Act of April 29, 1959, P.L. 58, § 1204; 75 P.S. 1204(a),*fn1 and various rules of criminal procedure.

During the early morning hours of September 18, 1976, appellant and a companion, Matthew Fairlamb, were involved in a car accident which resulted in the death of the driver of the other car. When Trooper Nydes, of the Pennsylvania State Police, arrived on the scene, appellant admitted

[ 281 Pa. Super. Page 88]

    that he had been the other driver. Trooper Nydes later testified that he observed that appellant's eyes were glazed, his lips were cut, he spoke slowly and the officer detected a strong odor of alcohol. Based on these observations, the trooper concluded that appellant had been drinking. He was advised of his rights at the scene and was placed under arrest. Trooper Nydes then took appellant and Fairlamb to the State Police Barracks. There appellant gave a statement and consented to a breathalyzer resulting in a reading of .19; however, no charges were lodged against him at that time. He was then released without a criminal complaint having been issued or a preliminary arraignment held.*fn2 Thereafter, on September 28, 1976, a complaint was filed and a preliminary hearing was set for October 19, 1976. [On October 4, 1976, the passenger eyewitnesses, Fairlamb, was killed in an unrelated auto accident.] Trooper Nydes, at the October 19th hearing, failed to appear, and the charges were dismissed. A new complaint was filed on October 20, 1976, and a preliminary hearing set for November 12, 1976. On that date, appellant was arraigned, but again Trooper Nydes failed to appear, and the preliminary hearing was continued until December 16, 1976. At that time, the hearing did take place and appellant was held for court. Appellant was convicted, by a jury, of Driving Under the Influence, on March 18, 1977.*fn3 He was sentenced to six (6) months probation and to pay a fine of $300 as well as costs.

Appellant first alleges that 75 P.S. 1204(a) was violated because he was not brought before a magistrate following his arrest, and did not have a complaint immediately filed against him. He further complains that this is also a violation of Pa.R.Crim.P. 101 because the same procedure is contemplated by the rule. Our Supreme Court in Commonwealth v. Levesque, 469 Pa. 118 at 126, 364 A.2d 932 at 936 (1976) discussed the interplay between § 1204 and Rule 101 and

[ 281 Pa. Super. Page 89]

    decided that "[t]he statute controls the grant of arrest power, and the rule, as far as its contemplation at the time, governs the means of instituting proceedings."

75 P.S. § 1204 was initially promulgated to allow peace officers the power to arrest, on view and without a warrant, any person violating any provision of the Motor Vehicle Code where the offense was designated a felony or a misdemeanor. The fact that the officer actually saw the crime being committed justified a warrantless arrest. The legislature, however, amended this section in 1974 to further include situations where "[A] peace officer may, upon view or probable cause without a warrant, arrest any person violating section 1037*fn4 of this act in cases causing or contributing to an accident." [emphasis added]. 75 P.S. § 1204. This amendment specifically empowered an officer to arrest, without a warrant, an individual for driving while intoxicated even if that offense was not committed in his presence.*fn5 The logic behind this amendment was that many times an officer only arrives at the aftermath of a traffic accident involving an intoxicated driver, and therefore, in order to preserve the evidence, and determine blood alcohol level, it is imperative that the officer have the authority to make an immediate ...

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