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COMMONWEALTH PENNSYLVANIA v. FRANK H. LABIAUX (08/28/81)

filed: August 28, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
FRANK H. LABIAUX



No. 29 April, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC7805440A.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

John H. Corbett, Jr., Pittsburgh, submitted a brief on behalf of appellee.

Spaeth, Shertz and Montgomery, JJ.

Author: Montgomery

[ 290 Pa. Super. Page 190]

Appellee Frank H. Labiaux was arrested without a warrant and charged with the offense of driving while under the influence of alcohol. Appellee filed a Motion to Suppress the results of a breathalyzer test. At the conclusion of the hearing, thereon, Appellee's motion was granted*fn1 and the Commonwealth filed this direct appeal. We reverse.

The sole issue is whether the police had probable cause to arrest Appellee.*fn2 The initial call to police was regarding a domestic situation. Upon the officer's arrival at the site and as a result of what they were told by the owner of the

[ 290 Pa. Super. Page 191]

    building, the officers asked Appellee to leave the building. Appellee was drinking beer when the officers arrived, appeared to have a flushed face and bloodshot eyes and his speech was slurred. Because Appellee was staggering, the officers had to assist him down the stairs. In addition, they noticed a strong odor of beer on his breath. Appellee placed a basket, which one officer had carried out of the building, into a truck which he had identified as being his. One of the officers, Larry Sangricco, advised Appellee not to drive the truck but to take a taxicab or walk home. He further advised Appellee that he would arrest him if he drove the truck. The officers left, got in their cars, and cruised the area, consistent with their practice in domestic situations. Approximately fifteen minutes after the initial stop, Officer Sangricco saw Appellee driving his truck. He subsequently arrested Appellee for driving under the influence. Officer Sangricco testified that he saw no other Vehicle Code violations. On the basis that the Appellee was safely operating the vehicle, the lower court found there was no probable cause to arrest him for driving under the influence.

We believe that the lower court's reasoning is incorrect. The offense is defined as follows:

A person shall not drive any vehicle while:

(1) under the influence of alcohol to a degree which renders the person incapable ...


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