
    Commonwealth v. Burkey
    
      Allan E. Ertel, District Attorney, for Commonwealth.
    
      John A. Felix, Public Defender, for defendant.
    July 3, 1974
   RAUP, J.,

On July 1, 1974, defendant entered a plea of guilty to driving while under the influence of intoxicating beverages and was sentenced to pay the costs of prosecution and a fine of $200. and to undergo imprisonment for a period of 15 days. Before the court is defendant’s petition for reconsideration of the imprisonment portion of the sentence.

Defendant contends that the imprisonment is “not commensurate with the offense” as:

“(a) Petitioner is 35 years of age and has no convictions, either violations of the Penal Code or of the Motor Vehicle Code in this or any other State;

“(b) The Petitioner was not ‘stopped’ by the police officer as a result of any accident;

“(c) Petitioner did not offer any resistance and no altercation resulted from his arrest.”

Defendant in this case had a blood alcohol reading of 0.22 percent, more than twice the álcohol level which gives rise to a presumption that one is under the influence. The circumstances of his arrest corroborated the accuracy of the breathalyzer test results.

In a serious driving while under the influence of intoxicating beverages case such as this, it might fairly be said that only the element of luck prevented defendant’s conduct from causing serious damage, injury or even death. Notwithstanding the fact that defendant has no prior conviction, that no tragedy resulted from his conduct and that he did not resist arrest, the court considers that the sentence is appropriate for the offense.

ORDER

And now, July 3, 1974, defendant’s petition for reconsideration of sentence is denied.  