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decided: December 30, 1983.


No. 55 W.D. Appeal Docket, 1983, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8303691A, dated July 20, 1983 granting Appellee's Motion to Dismiss Information


Robert L. Eberhardt, Deputy Dist. Atty., Joel M. Kaufman, William A. Behe, Deputy Atty. Gen., Harrisburg, Eric B. Henson, Deputy Dist. Atty., Philadelphia, William H. Platt, Dist. Atty., Allentown, for appellant.

Karyn Ashley Rok, Pittsburgh, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., joins in this opinion and filed a concurring opinion. Roberts, C.j., and Nix and McDermott, JJ., filed concurring opinions. Hutchinson, J., filed a concurring and dissenting opinion. Flaherty, J., filed a dissenting opinion.

Author: Larsen

[ 504 Pa. Page 245]


This appeal challenges the constitutionality of the "new drunk driving law," 75 Pa.C.S.A. § 3731(a)(4), one of several additions to the Motor Vehicle Code enacted by the General Assembly on December 15, 1982.*fn1 Section 3731(a)(4) provides in relevant portion:

[ 504 Pa. Page 246]

    appellee's motion and declared section 3731(a)(4) unconstitutional, finding it void for vagueness. This direct appeal followed, and we reverse.*fn5

Our analysis begins with the strong presumption of constitutionality and the heavy burden of pursuasion upon one who challenges the constitutionality of an Act of the General Assembly. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 123, 371 A.2d 461 (1977), appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Accordingly, legislation will not be declared unconstitutional unless it "clearly, palpably and plainly" violates the constitution. Snider v. Thornburgh, supra; Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198 (1975).

Moreover, it has been said that probably the most important function of government is the exercise of the police power for the purpose of preserving the public health, safety and welfare, and it is true that, to accomplish that purpose, the legislature may limit the enjoyment of personal liberty and property. Gambone v. Commonwealth, 375 Pa. 547, 550-51, 101 A.2d 634 (1954); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957) ("deep in our law . . . is the principle that of all the powers of local government, the police power is 'one of the least limitable.'" (citation omitted)). The police powers of the Commonwealth are particularly broad in matters pertaining to the safety and efficient functioning of the highways, Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1939), aff'd sub nom. 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940) and Mackey v. Montrym, 443 U.S. 1, 18, 99 S.Ct. 2612, 2621, 61 L.Ed.2d 321 (1979),*fn6 and are perhaps strongest

[ 504 Pa. Page 248]

    in matters pertaining to the sale, consumption and regulation of alcoholic beverages. California v. LaRue, 409 U.S. 109, 114-15, 93 S.Ct. 390, 395-96, 34 L.Ed.2d 342 (1972); Commonwealth v. Koczwara, 397 Pa. 575, 580, 155 A.2d 825 (1959) ("Not the least of the legitimate police power areas . . . is the control of intoxicating liquor."); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). With section 3731(a)(4), the legislature has exercised its broad police powers in these areas in an attempt to halt, or at least to retard, the wanton and senseless slaughter of and injury to innocent people upon our highways caused by drunk drivers. In South Dakota v. Neville, supra, the United States Supreme Court recently rejected a claim that the admission into evidence of an alleged drunk driver's refusal to submit to a blood-alcohol test violates his Fifth Amendment privilege against self-incrimination. In so holding, that Court stated:

The situation underlying this case -- that of the drunk driver -- occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 US 432, 439, 1 L Ed 2d 448, 77 S Ct 408 [412] (1957) ("The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield"); Tate v. Short, 401 US 395, 401, 28 L Ed 2d 130, 91 S Ct 668 (1971) (Blackmun, J., concurring) (deploring "traffic irresponsibility and the frightful carnage it spews upon our highways"); Perez v. Campbell, 402 US 637, 657 and 672, 29 L Ed 2d 233, 91 S Ct 1704 [1715 and 1722] (1971) (Blackmun, J., concurring) ("The slaughter on the highways of this Nation exceeds

[ 504 Pa. Page 249]

    the death toll of all our wars"); Mackey v. Montrym, 443 US 1, 17-18, 61 L Ed 2d 321, 99 S Ct 2612 [2620-2621] (1979) (recognizing the "compelling interest in highway safety").

459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748. In Mackey v. Montrym, supra, Chief Justice Burger noted that traffic deaths commonly exceed 50,000 annually in the United States, and that approximately one-half of these fatalities are alcohol related. 443 U.S. at 17, n. 9, 99 S.Ct. at 2621, n. 9. When we consider as well that over three-quarters of a million of human beings are seriously, and often permanently, injured and maimed as a result of alcohol related accidents, the emotional trauma and economic loss experienced by the victims and their families, and the millions of dollars of property damage, it is easy to see that society is faced with a problem of frightening and epidemic dimensions. In Pennsylvania, the grim alcohol related traffic accident statistics for 1982 are: 800 people killed in 684 traffic accidents; 19,499 people seriously injured in 12,508 accidents; and 20,155 vehicles damaged in accidents wherein at least one vehicle was damaged badly enough to require towing (this figure does not include those accidents where all cars could leave the scene under their own power). Source: Pennsylvania Department of Transportation, Bureau of Safety and Programming Analysis, 1982.

One of the solutions chosen by our legislature to combat this epidemic was to make it unlawful to drive, operate or physically control the movement of any vehicle while the amount of alcohol by weight in the blood is 0.10% or greater. It "is now virtually universally accepted that a person with a [blood alcohol percent] of 0.10 should not be driving." Burg v. People, 144 Cal.App.3d 169, 192 Cal.Rptr. 531, 534 (1st Dist. 1983); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320, 1323 (1982); Roberts v. State, 329 So.2d 296 (Fla. 1976); Greaves v. State, 528 P.2d 805 (Utah 1974). In upholding a similar statute against constitutional challenge, the Supreme Court of Washington observed:

[ 504 Pa. Page 250]

The genesis of this law apparently began when the United States Department of Transportation, in February 1979, produced an issue paper entitled "Alcohol Countermeasures Illegal Per Se and Preliminary Breath Testing." The issue paper encouraged state legislatures to enact "illegal per se laws" establishing, as a traffic offense, the operation of a motor vehicle with a BAC [blood alcohol content] equal to or in excess of a specified level, typically 0.1 percent. These statutes had been enacted in several states. Apparently as a result of the issue paper, the Washington legislature considered testimony from Dr. Ted Loomis, Ph.D., M.D., Professor of Pharmacology and Toxicology at the University of Washington. In a letter to Senator Dan Marsh, Dr. Loomis indicated, among other things, that there is an abundance of scientific support to indicate that with a BAC level of 0.1 percent, all persons are significantly affected. At that level, all persons will have lost one quarter of their normal driving ability, some persons will have lost as much as one half of their normal driving ability and a few people will not be able to even sit up in the driver's seat. Dr. Loomis concluded:

     the amount of alcoholic beverages necessary to produce a blood alcohol level of 0.1% is considerable and is believed by most people to represent abusive and excessive acute consumption of alcohol . . . . most people who drink alcoholic beverages will recognize that the consumption of more than 8 to 9 "drinks" (that is, a half pint of whiskey, or one and one-half six packs of beer, or a quart of natural wine) in two or three hours will produce subjective effects and impaired physical performance. Yet it is the consumption of approximately this amount of beverage that is required to produce a blood alcohol of 0.1% in the average adult.

The idea that 0.10% or more alcohol by weight in a person's blood represents an unacceptably high level of alcoholic consumption to permit driving dates back at least to November of 1960 when the House of Delegates of the

[ 504 Pa. Page 251]

American Medical Association issued a policy statement to the effect that a blood alcohol content of 0.10% by weight should be accepted as prima facie evidence of intoxication. See Commonwealth v. DiMarco, C.P. Lycoming County, slip opinion of September 22, 1983 at 12.*fn7

From all of the foregoing, it is beyond dispute that the General Assembly has a compelling interest in protecting the health and safety of the travelers upon our highways and roads against the ravage caused by drunken drivers, and that the means chosen to serve that interest -- the per se Motor Vehicle Code violation contained in section 3731(a)(4) -- is rationally and reasonably related to achievement of that legitimate goal. See Maurer v. Boardman, supra. However, our inquiry does not stop there for the police power is subject to constitutional limitations and judicial review. Gambone v. Commonwealth, supra at 375 Pa. 551, 101 A.2d 634; Lambert v. California, supra at 355 U.S. 228, at 78 S.Ct. 242.

The touchstone of due process is protection of the individual against arbitrary action of the government. Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, , 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). The principle aspect of the doctrine is the requirement that legislation establish minimal guidelines to govern law enforcement for, without such minimal guidelines, a criminal statute might permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilictions." Id. at , 103 S.Ct. at 1858, 75 L.Ed.2d at

[ 504 Pa. Page 252909]

quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974). In Commonwealth v. DeFrancesco, 481 Pa. 595, 393 A.2d 321 (1978), this Court applied the above principles to uphold a disorderly conduct/refusal to disperse statute, 18 Pa.C.S.A. § 5502, against a due process/vagueness challenge, and identified the "root of the vagueness doctrine" as a

"rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited . . . ."

481 Pa. at 608, 393 A.2d 321 quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).

Similarly in Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), we held that a penal statute "must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction." 467 Pa. at 5, 354 A.2d 244. However, statutes alleged to be vague are not "to be tested against paradigms of draftsmanship. Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct." Id., 467 Pa. at 6, 354 A.2d 244.

Appellee argues that section 3731(a)(4) exceeds the limitations of the due process clause of the Constitutions of the United States and of this Commonwealth; specifically, appellee contends that section 3731(a)(4) is void for vagueness because it fails to provide reasonable notice to the person of ordinary intelligence as to what conduct is proscribed. Viewed in light of the foregoing due process vagueness principles, however, it is obvious that appellee has fallen substantially short of carrying his burden of demonstrating either that section 3731(a)(4) fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute or that the section encourages

[ 504 Pa. Page 253]

    arbitrary and erratic enforcement.*fn8 Cf. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). The essence of appellee's argument is that section 3731(a)(4) "is vague because a person of ordinary intelligence performing the lawful act of consuming alcoholic beverages prior to driving has no reasonable way to ascertain beforehand when his blood alcohol level is about to reach the prohibited range." Brief for appellee at 3. Thus, "the individual is left to guess whether his conduct is permitted or proscribed." Id. Appellee would have us strike down this legislation, therefore, because the drinking driver is unable to precisely pinpoint that last drop of alcohol that will take him from the "permissible" range across the 0.10% line into the prohibited range. Appellee's reasoning is overtly technical and misperceives the nature of the due process clause and the vagueness doctrine.

As the United States Supreme Court stated in holding that local ordinances prohibiting "noise or diversion" that could interfere with school sessions or classes were not unconstitutionally vague:

Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by "flexibility and reasonable breadth rather than meticulous specificity."

Although the prohibited quantum of disturbance is not specified in the ordinance it is apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted . . . . Given this "particular context," ...

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