No. 1052 Pittsburgh 1983, Appeal from the Order of August 24, 1983, in the Court of Common Pleas of Allegheny County, Criminal division, at No. CC8306615.
Dara A. Decourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
William Sittig, Pittsburgh, for appellee.
Olszewski, Hester and Shiomos,*fn* JJ.
[ 343 Pa. Super. Page 151]
The Commonwealth appeals from an order of the Court of Common Pleas of Allegheny County granting appellee-Andrew Revtai's motion for writ of habeas corpus and dismissing charges of driving under the influence of alcohol or controlled substance.
Appellee-Revtai was arrested on May 25, 1983 and charged with driving under the influence. 75 Pa.C.S. Sec. 3731.*fn1 Appellee was not immediately taken before the issuing authority, but was released without arraignment pursuant to Pa.R.Crim.P., Rule 130(b), 42 Pa.C.S. A complaint was filed on May 31, 1983, six days after the arrest.
At his preliminary hearing, appellee requested that the charges be dismissed based on the Commonwealth's failure to file a complaint within five days of arrest under Rule 130(d). This request was denied. Appellee filed a motion for writ of habeas corpus on August 18, 1983, again based upon the Commonwealth's failure to comply with Rule 130(d). From the granting of the motion, the Commonwealth appeals.
One issue is presented for our review: whether the lower court correctly dismissed the charges, under Rule 130(d), where the Commonwealth failed to file a complaint within five days of appellee's arrest. After careful consideration of this issue of first impression, we affirm the order of the court below.
Rule 130, Procedure in Court Cases initiated by Arrest Without Warrant, states in pertinent part:
(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant
[ 343 Pa. Super. Page 152]
from custody rather than taking him before the ...