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filed: August 28, 1981.


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


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 of safe driving . . .

75 Pa.C.S. ยง 3731

We have specifically repudiated Appellee's position in cases brought under the previous driving under the influence statute. Commonwealth v. Arizini, 277 Pa. Super. 27, 419 A.2d 643 (1980); Commonwealth v. Kelly, 196 Pa. Super. 265, 175 A.2d 918 (1961). We do not believe the modifying phrase "to a degree which renders the person incapable of safe driving" requires the police to permit an obviously intoxicated person to operate a motor vehicle on the highway until that person has committed some other Vehicle Code violation, perhaps damaging another's property or injuring or killing someone, before they are permitted to arrest that individual. Sufficient protection from unwarranted

[ 290 Pa. Super. Page 192]

    arrest is provided by the requirement that the Commonwealth prove the person was driving the vehicle and also was under the influence of alcohol.

There was certainly sufficient indication that Appellee was intoxicated which the officers gleaned first-hand from their previous encounter with him. In addition, a very short period of time had elapsed from the time the officers had to assist Appellee down the stairs until the time they saw him operating the vehicle. Therefore, there was sufficient evidence presented to show probable cause for the arrest, and the lower court erred in finding that the lack of some other Vehicle Code violation precluded a finding of probable cause.

Reversed. We relinquish jurisdiction.

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