# Commonwealth v. Mikulan

> Supreme Court of Pennsylvania · December 30, 1983 · 504 Pa. 244

URL: https://www.frixlaw.com/law-library/cases/9634305

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Richard M. MIKULAN, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 30, 1983
- **Citations:** 504 Pa. 244; 470 A.2d 1339; 1983 Pa. LEXIS 772
- **Precedential status:** Published
- **Opinion:** Concurrence by Roberts
- **Judges:** Roberts, Nix, Larsen, Flaherty, McDermott, Zappala
- **Cited by:** 134 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634305

## How later opinions describe it (automated extraction)

- explaining that it is now virtually.universally accepted that a person with a blood alcohol percent of .10 should not be driving, and that such percentage should be accepted as prima facie evidence of intoxication
- finding that the General Assembly has a compelling interest in protecting citizens against drunk drivers
- stating “there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving”

## Opinion text

ROBERTS, Chief Justice,
concurring.
I agree with the majority that the order of the Court of Common Pleas of Allegheny County declaring 75 Pa.C.S. § 3731(a)(4) unconstitutionally vague must be reversed, and the case remanded for trial. Section 3731(a)(4), which makes it unlawful for a person to operate a motor vehicle while “the amount of alcohol by weight in the blood of the person is 0.10% or greater,” neither “ ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ ” nor “ ‘is so indefinite that it encourages arbitrary and erratic arrests and convictions,’ ” Commonwealth v. Burt, 490 Pa. 173, 177-78 , 415 A.2d 89, 91 (1980), quoting Colautti v. Franklin, 439 U.S. 379, 390 , 99 S.Ct. 675, 683 , 58 L.Ed.2d 596 (1979). *
With respect to the concern that the statute imposes criminal liability without fault, section 3731(a)(4) requires that a person’s blood-alcohol level equal or exceed 0.10%, and thus sanctions only those who have chosen to drive after having knowingly consumed alcoholic beverages. Accordingly, section 3731(a)(4) does not violate due process for want of a scienter requirement, see Commonwealth v. Field, 490 Pa. 519 , 417 A.2d 160 (1980), and the majority’s discussion of whether absolute liability may constitutionally be imposed is inappropriate.
It was erroneous for the trial court to have considered a facial challenge to 75 Pa.C.S. § 3731(a)(4). Because section 3731(a)(4) does not reach constitutionally protected conduct, appellee’s vagueness claim is to be examined "‘in the light of the facts of the case at hand,’ ” Commonwealth v. Burt, supra, 490 Pa. at 178 n. 5, 415 A.2d at 92 n. 5, quoting United States v. Mazurie, 419 U.S. 544, 550 , 95 S.Ct. 710, 714 , 42 L.Ed.2d 706 (1975), facts which include, according to the Commonwealth, appellee’s visible intoxication and 0.13% blood-alcohol level at the time of his arrest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634305. Public record. Not legal advice.