# Commonwealth v. Mikulan

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

URL: https://www.frixlaw.com/law-library/cases/9634309

## 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:** Dissent by Flaherty
- **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/9634309

## 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

FLAHERTY, Justice,
dissenting.
While I am in complete accord with the majority in deploring the “wanton and senseless slaughter” of innocent people by drunk drivers, I must dissent to the majority’s view that the statute at issue in this case, which makes it a crime to operate a motor vehicle while a person’s blood alcohol content reaches or exceeds 0.10% by weight, 75 Pa.C.S.A. § 3731(a)(4), is constitutional. My view is that the statute is unconstitutionally vague.
The. majority’s test for constitutional vagueness is correctly stated:
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner than does not encourage arbitrary and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352 , —, 103 S.Ct. 1855, 1858 , 75 L.Ed.2d 903, 909 (1983). Under this test, we must look to whether an ordinary person can understand what conduct is prohibited. The majority argues, in essence, that an ordinary person knows when he is getting drunk, and, therefore, the statute is not unconstitutionally vague. But getting drunk is not what is proscribed by the statute; nor does the statute make it a crime to drive after one has ingested alcohol. If it did, there would be no question as to *271 vagueness. Rather, the statute proscribes the operation of a motor vehicle after a person has ingested a particular measure of alcohol, but there is no way for an ordinary person to know when he has reached that statutorily proscribed level.
I am in complete agreement with the majority and with the legislature that measures must be taken to prevent drunk drivers from killing innocent people on our highways. The immediacy of the goal, however, has never and cannot now serve to justify the enforcement of statutes which provide no meaningful notice as to what behavior has been proscribed. Had the legislature, on the other hand, seen fit to enact a statute, for example, prohibiting the operation of a motor vehicle within eight hours of the consumption of any alcoholic beverage, similar to the regulation of the Federal Aviation Administration, see Majority Opinion at n. 9, such a provision would pass constitutional challenge of the sort raised here, for there could be no mistake as to what was prohibited.
For these reasons, I would affirm the lower court and hold that the statute is unconstitutionally void for vagueness.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634309. Public record. Not legal advice.