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06/03/97 COMMONWEALTH PENNSYLVANIA v. DOROTHY

June 3, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
DOROTHY DENNIS, APPELLEE



Appeal from the Judgment of the Superior Court entered on July 17, 1995 at 1764PHL94 reversing the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, entered on May 9, 1994 at 9104-1156 and M.R. # 94-002758. JUDGE(S) BELOW: CCP - Honorable Jacqueline F. Allen / Superior - MCEWEN, JOHNSON, BROSKY, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Zappala and Mr. Justice Nigro concur in the result.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

DECIDED: June 3, 1997

The Commonwealth of Pennsylvania appeals from the Order of the Superior Court of July 17, 1995, vacating Dorothy Dennis' (Dennis) conviction for driving under the influence. *fn1 We reverse.

FACTS

The record establishes that on April 10, 1991, at 2:18 p.m., Deborah A. Chance, a police officer, was on patrol in the 5900 block of Manning Street in Philadelphia. While the officer was speaking with a local resident, Dennis walked by and admitted to the police officer that she was drunk and could not handle her liquor. Dennis continued to walk along the street, and after a few minutes, the officer resumed her beat, proceeding to 60th and Chancelor Streets where she saw Dennis driving a car at a high rate of speed. Dennis drove her car into a parked vehicle and continued to drive down another street. She eventually stopped and exited her car.

The officer approached Dennis and questioned her about colliding with the parked car. While speaking with Dennis, the officer noticed a strong odor of alcohol on Dennis' breath. She also observed that Dennis slurred her words when she spoke and was not well-balanced. Dennis admitted to the officer that she had consumed at least a fifth of a gallon of Thunderbird wine. The officer arrested Dennis for driving under the influence. At 9:15 a.m., seven hours after the accident, police conducted a breathalyzer test to determine Dennis' blood alcohol content (BAC), which registered 0.0%. *fn2

PROCEDURAL HISTORY

After a trial, the Municipal Court of Philadelphia (trial court) found Dennis guilty of driving under the influence pursuant to Section 3731 on September 25, 1991. The trial court did not clearly indicate the appropriate subsections of the statute. *fn3 At that time, Section 3731 provided as follows:

§ 3731. Driving under influence of alcohol or controlled substance

(a) Offense defined.- A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

(1) under the influence of alcohol to a degree which renders a person incapable of safe driving;

(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree ...


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