*1 A.2d 131 Pennsylvania COMMONWEALTH ALLEN, Appellant. Daniel Pennsylvania. Superior Court of 2, 1989. Submitted Oct. May
Filed Appeal Petition for Allowance of Denied 10, 1990. Oct. *2 Motto, Castle,
Dominick New for appellant. Panella, William M. Dist. Atty., Castle, Com., New for appellee. CIRILLO,
Before Judge, President DEL and SOLE CERCONE, and JJ. SOLE, Judge:
DEL Driving Allen, was Under Appellant, Daniel convicted (a)(4). 3731(a)(1) (DUI), 75 Pa.C.S.A. Influence Allen sentenced. motions denied and was Post-verdict were the issues raises issues. Because all of appeal he five On meritless, judgment court’s sen- we affirm trial are tence. of a DUI the culmination conviction for was for was arrested
complicated procedural process. (a)(4). Police took DUI under Pa.C.S.A. § sample a blood City Hospital him to where Ellwood officer given arresting to the who sample The taken. placed it City Police Station and took it back to Ellwood another officer took following day in a The refrigerator. police refrigerator in the station testing. hospital Hospital for chemical St. Francis *3 sample the was that the blood alcohol level reported 0.16%. hearing, arresting attempted
At a the officer preliminary into evidence. Allen’s to introduce the blood test results officer not a attorney asserting lay that the did objected, was an establish that St. Francis proper foundation to testing cases. The approved laboratory for chemical DUI District the and the blood test objection Justice sustained into results not admitted evidence. were the arresting The then to withdraw com- officer moved All the against charges Allen was of plaint granted. which discharged. he No- against Allen were and was withdrawn he of sent to Allen and tice the withdrawal was was him against the would be re-filed. complaint informed that complaint against a was filed Allen Three later second days he of new and a complaint received service both the a Despite objections, defense counsel second summons. facie hearing prima held a case was at which preliminary Allen was He was bound over court. against established. pre-trial challenging motion the Allen filed omnibus of filing the the procedures regarding Commonwealth’s The trial complaint. second court ordered the case dis- Twenty-two days missed. later the court amended its or- der, the dismissal of the case Allen and against withdrew dismissed the motion. Allen for petition omnibus filed a habeas motion corpus writ of and/or a to dismiss and/or court, the order arguing strike of the court lacked authority to issue the second order the withdrawing dismis- the case prior sal of without notice to the parties. for this was 42 A argument basis Pa.C.S.A. hear- held, ing although agreed the was Commonwealth with position, trial petition. court denied his trial, At a Allen non-jury argued no was evidence presented City show that Ellwood was an Hospital ap- proved for blood laboratory withdrawing samples, blood properly procedures withdrawal was not supervised, for and transportation used withdrawal of the blood were improper, laboratory was supervised technician qualified to chain custody draw blood and the sample Despite arguments, was broken. his was admitted into evidence and was found DUI. guilty charges both
The first issue raised Allen on appeal whether he entitled charges against was to have the him dismissed charges against because the initial him were withdrawn and complaint second filed without a re-arrest. We hold that there no need for re-arrest Allen. case,
In court issuing authority in its discre- may, tion, issue a summons or a warrant of if the arrest offense *4 is of charged punishable by a sentence more than one year Crim.Proc., and less than five years prison. Pa.Rules of 102(c). Rule under Driving the influence is a misdemeanor of It degree. punishable by the second a sentence in prison. 106(b)(7). more than two years Pa.C.S.A. § Consequently, the service of a on Allen summons was a proper method to reinstitute charges against him. The fact that this service was to make enough appear subsequent preliminary hearing argument belies the that a second arrest required. There is no authority requires which the Commonwealth to re-arrest a order to begin subsequent prosecution for the charge DUI.
The second issue is whether the trial court lacked the authority to reinstate the charges and withdraw the court ordered dismissal within thirty days of the initial order, without prior notice to the parties. This issue is also meritless. The statute Allen bases his argument on is 42 Pa.C.S.A. 5505. This statute reads: §
Except as provided prescribed law, otherwise or upon court notice to the parties may modify or rescind order any within thirty days after its entry, notwithstand- ing the prior termination of court, term of if any no appeal from such order has been taken or filed.
42 Pa.C.S.A.
The statute contains no requirement that the court give parties prior notice before or modifying withdrawing an order. Allen has presented us with no authority which would require such reading of the statute. According to statute, a court must notify parties when it modifies order, rescinds an but this notice does not have to be prior to the modification.
The third issue raised by Allen is whether the trial
court erred in introducing evidence of the blood test at trial
because the chain of custody was broken. We say no. The
Commonwealth presented testimony which showed who had
possession and control of the blood
from
sample
the time it
was withdrawn from Allen to the time it was tested and
brought to court. There is no need for the Commonwealth
to prove beyond a doubt the
sanctity
a blood sample after
it is withdrawn from a driver. The Commonwealth must
simply establish a reasonable inference
sample
that the
unimpaired until it was brought to court. Commonwealth
Miller,
234 Pa.Super.
(1975).
The fourth issue raised by Allen is whether the trial court erred in introducing the blood test results because was not approved withdrawn at an clinical *5 test
laboratory, properly supervised and by laboratory the test was not administered technician. Again, we hold that the trial court did not err. 3731(a)(1),
Allen was convicted of 75 Pa.C.S.A. driving § or in the actual being physical control of a vehicle while degree “under the influence of alcohol to a renders which person incapable driving;” of safe and 75 Pa.C.S.A. 3731(a)(4), driving being or actual control of a physical § weight vehicle while “the amount of alcohol in the by greater.” In order to support 0.10% 3731(a)(4),the present conviction under Commonwealth may performed tests on a defendant’s if blood or breath qualified “tests were conducted by persons using approved 1547(c). equipment____” 75 Pa.C.S.A. Specifically, § Chemical tests of blood or urine shall performed by be clinical and laboratory approved by Depart- licensed purpose using ment of Health for this procedures equipment prescribed Department of Health. For urine purposes testing, qualified person blood and means an perform individual who is authorized to those 26, (P.L. chemical September tests under the act of 1539, 389), No. known as “The Act.” Laboratory Clinical 1547(c)(2). 75 Pa.C.S.A. §
The trial court wrote that: City Hospital proven Ellwood was not abe
[w]hile laboratory Pennsylvania Depart- technical licensed ment of Health or its staff certified under the Clinical Act, 2151-2165, Laboratory 35 P.S. so as to qualify §§ that hospital testing and its staff to do blood under 75 1547, Pa.C.S.A. the Court finds from the testimony § (P.L.E.Evidence presented by way judicial notice 1-14) that it is an established clinical laboratory whose §§ qualified samples. staff is to take blood Trial opinion p. Court 1547(c)
In past, this court has held that and its corresponding regulations “focus on the person performing used, testing the blood and the not the technician equipment Mahaney, Commonwealth v. drawing the blood.” (1988). 540 A.2d If a driver is case, to a hospital taken for a blood ain DUI *6 the Commonwealth must show that the blood was with- aby hospital qualified drawn employee who was to take samples. That does have employee not to meet the 1547(c)(2). requirements of Pa.C.S.A. The Common- wealth made at showing this trial and the trial judge properly accepted person the who withdrew the blood from qualified. Allen as
The fifth and final issue raised Allen is whether against the verdict was weight of the and evidence whether evidence was insufficient aas matter of law. The trial court reviewed the testimony police officers and one other witness:
Officer Yoho testified that when he arrived at scene on August 27, 1988, accident during the early hours, morning he saw Allen’s vehicle and two other vehicles, all degree. of which were damaged to some He also testified that the other resting two vehicles were partly on the sidewalk and on partly roadway. Offi- that, Allen, cer Yoho further testified he observing noticed Allen had blood-shot and eyes speech slurred and an possibly injured right administering hand. After test, field sobriety it opinion was Officer Yoho’s that Allen performed unsatisfactory pass and did the test. Officer Yoho also testified that Allen at the scene of the (Officer explained Yoho) accident him (Allen) that he driving his truck around the bend and lost control of it. David Mitchell
Officer also testified regarding the dam- aged vehicles. He Allen’s observed truck at rest in the east bound lane of Lawrence Avenue and the other two pushed vehicles onto the curb. Officer When Mitchell scene, at arrived he standing observed Allen next to and, his pickup Allen, red truck after approaching noticed on odor Allen’s breath. Officer Mitchell also testified observing administering Officer Yoho field which, test sobriety according to Allen to Officer Mitchell, Allen “failed.” that, he stated on
Now, testimony, as Allman’s Henry and heard watching he was television day question, he immediately in front of his house. As loud crash residence, his on the side he observed truck exited his in front of his pushed his sister’s car forward walk truck, red pickup also testified that a with truck. He side, his in it on the driver’s was behind Allen seated damaged All vehicles ac- (Allman’s) truck. three were testimony Henry Allman then cording to Allman’s Henry if he he to Allman and asked over testified went Henry Allen into his Allman and invited house. injured (sic) of alcohol about that he noticed an order testified up.” was “shook 15-16. opinion pp. Trial Court *7 a against In hold that verdict was the order to evidence, must clear from the record of it be weight the Com justice. court’s sense of the verdict shocks this Hamilton, A.2d 546 90 monwealth v. the blood (1988). with the fact that testimony, along This his alcohol level from Allen showed that taken of of Allen 0.16%, easily supports conviction was shocking 3731(a)(1) (4). nothing and There was Pa.C.S.A. § Therefore, hold that the this we verdict about verdict. against weight not evidence. insufficient whether the evidence was deciding
When the evidence verdict, court must consider to this support evidence, from the in a inferences to drawn and all the be winner, in case the to the verdict this light most favorable Vogel, 501 Pa. Commonwealth. Commonwealth above, and (1983). the evidence summarized A.2d 604 Given sufficient level, hold that there was Allen’s blood alcohol we that Allen a reasonable doubt prove beyond evidence to of alcohol under Pa.C. while under the influence driving (4). S.A. and of sentence affirmed.
Judgment and CIRILLO, Judge, concurring files President dissenting opinion.
CIRILLO, Judge, concurring dissenting: President I in disposition concur majority’s “re-arrest” issue write separately but to further define term “re-ar- In addition, rest.” I respectfully majori- dissent from the finding ty’s that the Commonwealth’s evidence was suffi- prove, beyond doubt, cient to a reasonable that Allen drove while his blood alcohol level .10 percent. exceeded Pennsylvania Rules of Criminal Procedure do “re-arrest,” define the term *8 states: proceedings Criminal in by: court cases shall be instituted filing complaint; 1. written or an felony 2. arrest a without warrant when the offense is a or police presence misdemeanor committed in the of the officer mak- arrest; ing the or an upon 3. arrest probable without a warrant cause the when felony; offense is a or upon an probable 4. arrest a without warrant cause when the is offense a presence misdemeanor not committed in the of the arrest, police making officer the when such arrest without a war- specifically is by rant authorized statute. Pa.R.Crim.P. 101. the allows 102.2 An arrest warrant
mons. Pa.R.Crim.P. court until his the defendant arrest and incarcerate to police hand, the defendant summons, allows A on the other date. summons, appointed day. the large at until to remain the complaint by copy accompanied “command[s] authority----” issuing the appear before defendant ... the defen also notifies 110. The summons Pa.R.Crim.P. at his counsel, will be set that bail right of his dant appear pre that failure hearing, and preliminary for of a warrant in the issuance hearing will result liminary 110(1)-(3). Pa.R.Crim.P. arrest. the defendant’s it becomes unambiguous, appears this process While terminated are proceedings the initial much less clear when The case law later re-instituted. for some reason filed initiat- complaint is after a second acknowledges that the Commonwealth proceeding, criminal the second ing period prescribed “within re-arrest the defendant must charges question,” for of limitations the statute by 1, 11 53, 74, A.2d Revtai, Pa. to effectuate necessary procedures (1987), proper but Common- e.g. enunciated. See not been re-arrest have of Arrest in Court or Warrant “Use of Summons 2. Rule entitled Cases," states: case, issuing court charges which is a complaint an offense If a shall: authority it is filed with whom in cases in (a) an<) a warrant of arrest issue a summons by imprison- punishable a sentence of charged is which the offense paragraph except year, as set forth than one of not more ment (b). (b) (1) when: of arrest issue a warrant imprison- charged punishable a sentence to is offense years; or five of more than ment believing grounds (2) authority for issuing has reasonable obey or a summons: will not that the defendant undelivered; or (3) has been returned the summons defendant; disobeyed by or (4) (5) (c) served and has been a summons identity is unknown. of the defendant arrest, issuing within the or a warrant a summons issue discretion, charged within does not fall authority’s the offense when (a) (b). paragraphs categories specified in any of the charged one offense and (d) with more than when a defendant imprisonment punishable a sentence to of such offenses is one for more issued. arrest shall be years, a warrant of than five Pa.R.Crim.P.
137 Mirarchi, wealth ex rel. Fitzpatrick 385, 390, v. 481 Pa. 1346, (1978) 392 A.2d 1348 (“[t]his court acknowledged has that re-arrest is appropriate procedure and the Common- wealth’s only recourse charges where the are dismissed and the defendant discharged upon a finding of a lack of a prima ...”); facie case Commonwealth v. Sandly, 371 Pa.Super. 486, 488, 546, (1988) 538 A.2d 546 (“[a]ppellee was then on the same charge pursuant to a re[-]arrested [sec- written complaint”); Tait, Commonwealth v. ond] Pa. 315, 318, Super. (1987) (footnote omitted) A.2d (“[according to the us, record proceedings before against appellee were initiated when the second complaint filed; thereafter, appellee ”). was ‘re[-]arrested’
“An arrest occurs ‘with any act that indicates an intention to take a into him custody subjects to the actual ” control and will of the person making the arrest.’ Com monwealth 377-378, 517 Pa. Lagana, 537 A.2d (1987) (citation omitted). Literally, the term “re-ar rest” Thus, means to arrest again. it would seem that in order to person, re-arrest a an act is necessary that subjects the person to the actual dominion and control of the arre However, stor. that definition would be antithetical to our Rules of Criminal Procedure which do not an require arrest in every criminal proceeding. See Pa.R.Crim.P. 101 and 102. For example, when the crime charged is driving under influence, special procedures are available under Rule 130:
¡is sfc !}C [*] ¡¡C (b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or substances, controlled the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant
pursuant
released
to para-
(b) ...,
graph
a complaint shall be filed against
]
(5)
defendant within five
days
the defendant’s release.
*10
summons,
arrest, shall
a
not a warrant
Thereafter,
of
as
in
proceed
provided
the case shall
be issued and
of Criminal
110.
[Pennsylvania Rule
Procedure]
added).
130(b)
(d)
Rule
(emphasis
Pa.R.Crim.P.
and
Under
summons,
130,
warrant,
of an
is
the
a
instead
arrest
use of
130; 102,
(“in
Pa.R.Crim.P.
comment
all
mandated. See
in
has been released
to
pursuant
cases which the defendant
(c),
issued”).
a summons shall
130(b)
Rule
or
be
Conse-
interpret
literally.
cannot
the term “re-arrest”
quently, we
Procedure,
our
a
I
under
Rules of Criminal
believe that
a
accomplished
by reissuing process upon
re-arrest
simply
the
filing
complaint
defendant.
after
second
Specifically,
action,
commences the second criminal
the Common-
which
wealth,
re-arrest,
to
a
need
a summons
only
effectuate
issue
(court
Tait,
that
supra
arrest
See
states
or
warrant.
a
defendant
re-arrested and facts indicate that
reis-
issued).
second
and summons were
The
complaint
in
of
is an element that remains constant
process
suance
the
first
the insti-
proceeding
both
terminated
criminal
and
of
Allen’s asser-
proceeding. Accordingly,
tution
a second
that
ar-
required
“formally
tion
the Commonwealth is
him
him
domin-
rest”
to the Commonwealth’s
by subjecting
The record
that
ion and control is without merit.
reveals
procedures:
followed
it re-in-
proper
the Commonwealth
the
against
by
complaint
action
Allen
filing
stituted
criminal
then
him
issuing
re-arrested
summons.3
issue, I
the
Allen’s final
dissent from
respect
With
suffi-
majority’s
introduced
finding
Commonwealth
operating
cient
to convict Allen of
his truck while
evidence
“the
alcohol
blood
weight
amount of
0.10%
[his]
[was]
3731(a)(4). The
greater.”
75 Pa.C.S.
Commonwealth
not
alcohol
present expert
relating
did
blood
testimony
drove his
reading
at least one hour after
last
obtained
opera-
time of
truck to his
alcohol level at the
actual
incorrectly
majority opinion
The
that "the service of a sum-
states
charges against
proper
mons on Allen was a
method to reinstitute
illustrated,
added). However,
just
filing the
(emphasis
him.”
as I have
complaint
charges against
of
Allen while the issuance
reinstituted
him.
the summons re-arrested
evidence, verdict
Without such
court’s
was based
tion.
and I
it to stand.
speculation
on
would
allow
had the
burden
It is axiomatic that
Commonwealth
proving
every
beyond
each and
element
section
358,
re
397 U.S.
90 S.Ct.
Winship,
a reasonable doubt. In
McNeil,
(1970);
v.
Allen claims the
insufficient
Commonwealth
support
the court’s conviction. Our standard
evidence
settled;
evidence,
must
review is well
we
view all
therefrom, in
light
all reasonable inferences to be drawn
as
most favorable to the Commonwealth
verdict winner.
301,
22;
373
541 A.2d at
Pa.Super.
Common-
Boyd,
258,
(1986).
Pa.Super.
353
Commonwealth.
Inferences are circumstantial evidence
and can form the
for
basis
a criminal conviction only when
follow,
they
beyond
doubt,
reasonable
from proven facts.
Saccol,
v.
Commonwealth
384 Pa.Super. 161,
Officer Robert
testified for the Commonwealth and
stated that when he arrived at the
accident,
scene of the
he
that Allen
observed
“had an odor of alcoholic beverage, he
had
eyes,
bloodshot
he had
speech,
slurred
I
and believe he
facts,
These
injured.”
when combined with the occur-
accident,
rence of the
are sufficient
to convict Allen of
driving under the
degree
influence to a
him
rendered
incapable
driving,
3731(a)(1).
safe
section
See Common-
wealth
Wright,
Pa.Super.
(1987);
Officer Yoho also stated that he administered several sobriety field tests and that Allen failed all of them.4 This accident, indicates Allen’s motor skills were after impaired. There are several inferences which can be drawn First, if from this fact. Allen’s motor impaired skills were accident, prior to the inference that would arise is that Allen incapable driving. of safe If the impairment was caused alcohol consumption, this inference is rele- 3731(a)(1). However, vant section a finding particu- of a lar level does not from inevitably follow inference and nothing therefore adds to a prosecution under 3731(a)(4). hand, section On the other it is possible that the impaired motor skills solely resulted from the suf- injuries fered during the accident and no inference concerning the cause of the impairment Regardless, would arise. an infer- ence of a blood alcohol greater percent level than .10 does unavoidably flow from failed sobriety tests and there- fore could not form the basis of Allen’s section eyes 4. Officer Yoho asked Allen to close his and touch his nose with finger, pick up dropped his index street, coins that the officer on the straight by placing ground to walk in a line the heel on the first toe, rolling complete degree and then forward to the and to a 180 turn. *13 142 Saccol, Paschall, supra; supra; Sojour-
conviction. See ner, supra. Since the court could not use of the any aforementioned facts to infer Allen’s alcohol level at blood accident, its on the the time verdict section entirely count must have been based on the results of the blood alcohol test. he to dispatched
Officer David Mitchell testified that
the scene of the Allen accident sometime between 3:10 a.m.
and 3:20 a.m.5 The
of Laura Falen
testimony
established
a.m.,
from Allen
4:20
at least
that
blood was drawn
at
operated
one hour after Allen last
his truck. The test
on the
alcohol
performed
yielded
blood
blood
level
infer, beyond
doubt,
of .16
To
percent.
reasonable
blood
a.m.,
.10 percent
greater
alcohol content of
at 3:20
from the
alcohol
extrapolate
court would have
blood
level
alia,
of,
inter
requires knowledge
at 4:20 a.m. This
how
alcohol is metabolized. The
should not be
presume
any
fact finder
such
possesses
allowed
knowledge. Consequently,
testimony
without
on
expert
calculation,
such a
the court could
perform
only
how
the rate at
Allen’s
the alcohol
body
surmise
which
absorbed
involved,
guesswork
he consumed. Because of the
the fact
finder, in
could not use the
expert testimony,
the absence
infer,
alcohol
at 4:20 a.m. to
a reasonable
beyond
blood
level
Paschall,
doubt,
alcohol content at 3:20 a.m.
blood
supra
(a
cannot
on
impermissi-
criminal conviction
be based
Croll, Commonwealth v.
speculation);
Pa.Super.
ble
(1984) (a
The is majority relying finding its that the evidence was sufficient support 3731(a)(4), despite a under support conviction section the after-the-fact blood expert testimony relating lack of operation. Boyd, test the time of an en banc back to decision, holding from Speights, affirmed the essentially supra, themselves, by alcohol test results without can—
explanation expert support testimony —suffice 3731(a)(4) alco- conviction under subsection but that blood trier of to find a hol test results do fact compel defendant subsection where guilty violating said challenging is of record competent there evidence test results. 298, A.2d at 22 Pa.Super. (quoting 373 at 541
Boyd, 265-266, 1267). at 509 A.2d at Pa.Super. 353 Speights, holding I that this court is bound recognize While flawed, I rationale is opinion am of the Boyd, Speights’ on it should be reevaluated. and therefore reliance Boyd’s into In the court stated that alcohol absorbed Speights, 90 after it 30 to minutes is imbibed. bloodstream 264, A.2d Pa.Super. at 509 1266. court 353 Speights, if finding generalization that parlayed then this into a arrest, his drinking 30 to 90 minutes before his stops falling at the time of probably level will be 144
testing and therefore be lower than at the time he drove. Id. Thus, pre-testing delay inures to the “generally defendant-driver____” Id. at A.2d benefit at However, appellate we as an simply court cannot notice of the rate judicial take at which the body absorbs Slingerland, See Pa.Super. alcohol. 518 A.2d at see also Common- P.J., (1986) (Cirillo, dissenting); Brooks, wealth v. 236, 241, 523 A.2d (1987) (“judicial may notice be taken of matters of common knowledge, facts which are so known that well Adjustment Insurance Bureau v. incontestable”); are they *15 Insurance Commissioner Commonwealth Penn- for sylvania, 491, 495, 858, (1984) 86 485 A.2d Pa.Commw. 860 (“[¡judicial notice is intended to avoid the formal introduc- in limited tion of evidence circumstances where the fact is so sought proven be well known evidence ...”). support unnecessary only absorp- thereof Not are tion different for each person, they depend rates but on factors, to, myriad including, but not limited a driver’s weight, drinking, what was eaten before the amount of contained, and alcohol each drink whether non-alcohol Speights’ Moreover, mixer pronounce- based was used. ments the fact finder to relate after-the-fact allow blood readings alcohol back to an earlier time as a matter of course, any departure without reservations. This was a See Common- from éarlier declarations this court. wealth v. Griscavage, 141, 5, Pa.Super. 336 152 n. 485 A.2d grounds, rev’d on other 470, (1984) 540, 512 476 n. 5 Pa. (1986) 517 A.2d to relate (“[ajttempts 1256 back blood/alco- prior hol levels to a time to the admission of the test are Ghion, 281 Couts v. regarded skepticism”); Pa.Super. with 135, 145, 1184, (1980) (“[ejvidence ‘relating 421 A.2d 1189 back’ a blood alcohol test to a time before the test was Schwarz- administered has skepticism”); been viewed with Dunn, bach v. 454, 462, 1295, Pa.Super. 381 A.2d 1299 (1977) (plurality opinion) (“[wje regard skepticism any with to relate attempts evidence which back to a blood alcohol prior administering level at a time to the of such a test Acker- speculative”). such a test is too entirely because Cf. 486 A.2d Delcomico, man v. alcohol of the blood the admission (1984) (“[although ..., remain we this court condoned has been content jury”). to the of this evidence as to the value skeptical present failure Commonwealth’s In to the addition sample from one blood only drew testimony, they expert first, after the taken sample, blood Lack of a second Allen. wheth- deducing from the fact finder essentially precluded absorbing alcohol body was still er, 4:20 a.m. it, if in the elimina- to eliminate had started it whether In peaked. had alcohol level the blood phase, tion when whether, time of at the words, did not know the court other condition. leaving a drunken entering or testing, Allen was alcohol knowledge [percent] It is “common after elapsing to the time according is not static but varies Kostra, 349 Pa.Su- ingestion.” initial (1985). If second 1287, 1292 89, 99-100, A.2d per. reg- on it performed tests taken and sample was test, a the first level than blood alcohol higher istered a into the bloodstream absorbing alcohol is still earlier, must have driving, when content the blood taken, no sample was one blood Because lower. been absorbing or eliminat- of whether determination test, the a second blood made. Without alcohol could be ing *16 determination, beyond make a possibly could not fact finder simply doubt, of the earlier level without a reasonable convic- A criminal impossible. extrapolation guessing; See guess. of uneducated type on this tion cannot be based Paschall, supra. Saccol, supra; Sojourner, supra; proved only the Commonwealth Because hour after he percent .10 one exceeded alcohol content insuf- vehicle, find the evidence I would his motor operated 3731(a)(4). under 75 Pa.C.S. conviction ficient to sustain a on that Allen’s conviction I reverse Accordingly, would charge. notes majority correctly “[tjhere is authority requires no which the Common- wealth begin subsequent re-arrest prosecu- tion the charge for Clearly, filing DUI.” the complaint was sufficient to re-institute the charges against Allen. See Pa.R.Crim.P. 101 and 130. The term “re-arrest” refers not to the start of a new criminal proceeding, but rather the process used to ensure Allen’s next attendance his has, court date. It is an inexact term which past, been used without careful distinction. “Re-arrest” de- either scribes procedures: of two different the issuance of an arrest warrant or the issuance of a summons. are There two methods by which the may institute filing criminal proceedings; a written complaint executing an arrest. 101.1 Pa.R.Crim.P. a complaint When utilized, the Commonwealth insures the ap- defendant’s pearance court issuing an arrest warrant or a sum- Instituting Cases,” Proceedings Rule entitled “Means in Court