# Commonwealth v. Mikulan

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

URL: https://www.frixlaw.com/law-library/cases/9634307

## 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 McDERMOTT
- **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/9634307

## 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

McDERMOTT, Justice,
concurring.
There are none so brave, none surer of their faculties than one warmed with the fruits of forgotten summers. That they may imbibe more than the legal limit is a risk they take, if they drive. Every risk they forgo is one less for everybody. It is a quibble to suggest that one may not know his own limit, when as Mr. Justice Larsen notes, the State could prohibit an eyedrop. I agree with the majority that the imposition of absolute liability is permissible in the case at hand, Cf. Commonwealth v. Field, 490 Pa. 519 , 417 A.2d 160 (1980) (upholding Section 3732 of the Vehicle Code against constitutional attack), and for that reason I join in the decision to reverse.
However, I believe that the majority’s discussion regarding culpability in cases involving sentences of 90 days or more is somewhat premature and for that reason I write separately. Section 3731(e)(l)(iii) of the Vehicle Code, 75 Pa.C.S. § 3731(e)(l)(iii), provides that a person is subject to imprisonment for not less than ninety days if he has “twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.” There is nothing in this record to indicate that appellee here has been previously convicted of driving while intoxicated. Thus, he was not subject to the 90 days provisions of the statute.
I would go no further than to hold that the imposition of absolute liability in this case does not offend appellee’s constitutional rights.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634307. Public record. Not legal advice.