Com. v. Casanave

• Decision Date: 16 January 1962
• Citation: 177 A.2d 173,197 Pa.Super. 77
• Parties: COMMONWEALTH of Pennsylvania v. Frederick CASANAVE, Appellant.
• Court: Pennsylvania Superior Court

Page 173

177 A.2d 173

197 Pa.Super. 77

COMMONWEALTH of Pennsylvania v. Frederick CASANAVE, Appellant.

Superior Court of Pennsylvania.

Jan. 16, 1962.

David E. Thomas, Raspin, Espenshade, Heins, Erskine & Stewart, Philadelphia, for appellant.

Elmer T. Bolla, Deputy Atty. Gen., David Stahl, Atty. Gen., for appellee.

Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

PER CURIAM.

The order of the Court of Common Pleas of montgomery County is affirmed on the opinion of Judge David E. Groshens for the court below.

RHODES, P. J., absent.

The opinion of Judge David E. Groshens follows:

This is an appeal from the order of the Secretary of Revenue suspending the appellant's license to operate a motor vehicle.

Frederick Casanave was arrested on April 12, 1961, driving on the East River Drive in Philadelphia, and charged with driving while under the influence of intoxicating beverages. He appeared before a magistrate the following day and posted bail pending trial. Appellant thereafter received notice to appear for a hearing before a representative of the Pennsylvania Department of Revenue. Subsequent to the hearing appellant received notice that his operator's license was suspended for a period of six months commencing May 8, 1961 for operating a motor vehicle while under the influence of intoxicating liquor. This appeal followed. At the time of the hearing in court, appellant had not been tried on the criminal charge.

At the administrative hearing, appellant chose to offer no testimony. On appeal he testified and offered one witness. The testimony of the police officers was the same at both hearings.

The police officers testified they observed the appellant driving without any lights on his car at 8:45 p. m. They followed the appellant for nearly a mile and then stopped him. There was an odor of alcohol on appellant's breath, there was a slur when he spoke, and he admitted he had a few drinks. He was examined by a doctor for about ten minutes and thereafter held for court. The doctor did not testify at either hearing. The police officers testified appellant was under the influence of intoxicating beverages.

The appellant testified that he had two martinis at dinner, not an unusual quantity, and then after dinner drove toward home when he was arrested. He stated that he has never been affected by drinking two martinis at dinner. Dinner was one and three-quarter hours prior to his arrest. On this day, appellant testified, he had a very bad cold for which he was taking pills prescribed by a doctor, the last pill taken at approximately 6:00 p. m., one hour prior to dinner. The doctor of appellant testified that he prescribed these capsules for appellant in October, 1960 and that appellant customarily has them on hand for respiratory infections. In his opinion these capsules 'could tend to potentiate the effect of alcohol.' On cross-examination the doctor testified that he customarily warned patients...