HomeMy WebLinkAboutCP-21-CR-2476-2004
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DOLORES O'BRIEN
CP-21-CR-2476-2004
IN RE: MEMORANDUM OPINION
Bayley, J., January 17, 2006:--
This memorandum is filed pursuant to the order of January 9, 2006, by the Superior
Court of Pennsylvania. Defendant was charged and went to trial on the following information:
THE DISTRICT ATTORNEY OF CUMBERLAND COUNTY, by this
Information charges that on or about Saturday, the 21st day of August, 2004, in
the said County of Cumberland, DOLORES O'BRIEN, did:
COUNT 1:
Driving Under the Influence, General Impairment, 2nd Overall, 2nd Mandatory
(MISDEMEANOR -- $300.00 -- -$2,500.00 - 5 Days - 6 Months)
driving after imbibing enough alcohol to render said person incapable of safe
driving.
COUNT 2:
Driving Under the Influence - Highest Rate of Alcohol (.16+), 2nd Overall, 2d
Mandatory
(M1 -- $1,500.00 -- -$10,000.00 - 90 Days - 5 Years)
drive, operate or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the alcohol concentration in
said person's blood or breath is .16% or higher within two hours after said
person has driven, operated or been in actual physical control of the movement
of the vehicle.
Citation of Statute and Section: 75 Pa.C.S.A. Sec. 3802 (a)(1)
75 Pa.C.S.A. Sec. 3802 (c)
In Commonwealth v. McCurdy, 735 A.2d 681 (Pa. 1999), the Supreme Court of
Pennsylvania stated:
. . . the driving under the influence statute proscribes a single harm to the
Commonwealth - the operation of a vehicle under the influence to a degree that
renders an individual incapable of safe driving. The fact that the offense may be
CP-21-CR-2476-2004
established as a matter of law if the Commonwealth can produce the necessary
chemical test does not constitute proof of a different offense, but merely
represents an alternative basis for findinq culpability. (Footnote omitted.)1
Pa.R.Crim.P. 563 provides:
(A) Two or more offenses, of any grade, may be charged in the same
information if: . . .
(2) the offenses charged are based on the same act or transaction.
(B) There shall be a separate count for each offense charged.
When there are allegations of driving under the influence for violating Section 3802 of
the Vehicle Code under alternate subsections, there should be one count charged with the
alternate subsections set out. If there is proof beyond a reasonable doubt, a court or jury can
then find defendant guilty of the one count of driving under the influence for violating multiple
subsections. Having alternate bases for finding culpability does not, however, constitute
separate offenses. Therefore, because defendant was charged in separate counts with
separate offenses of driving under the influence, we found her guilty of the count carrying the
highest grade which was a misdemeanor of the first degree in violation of Section 3802(c) of
the Vehicle Code. No separate verdict was entered on the count alleging the separate
offense of the ungraded misdemeanor under Section 3802(a)(1), as defendant was either
guilty or not guilty of driving under the influence. The notation by the Clerk of Court on the
docket that the count alleging a violation of Section 3802(a)(1) was quashed, is an error.
The ENTRIES section of the docket on March 30, 2005, accurately reflects that an
order was entered on March 22,2005, finding defendant guilty. The DISPOSITION
1 McCurdy interpreted 75 Pa.C.S. S 3731 which has been repealed and replaced with
75 Pa.C.S. SS 3801-3871. The reasoning remains the same under the new statute.
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CP-21-CR-2476-2004
SENTENCINGIPENAL TIES section of the docket incorrectly reflects that the sentencing on
May 3, 2005, was a result of a guilty plea, when in fact, it was the result of the finding of guilty
following a bench trial on March 22, 2005. We have separately ordered that this clerical error
by the Clerk of Court, and the other one, be corrected, and that the supplemental docket and
this opinion be forwarded to the Prothonotary of the Superior Court.
(Date)
Edgar B. Bayley, J.
John C. Dailey, Esquire
For the Commonwealth
Timothy L. Clawges, Esquire
F or Defendant
:sal
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