The Pennsylvania Superior Court has ruled that the accuracy of an alcohol breath test is a matter to be addressed at trial, and not before.
The court overturned Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr.'s controversial ruling in Commonwealth v. Schildt barring alcohol breath test evidence in a DUI case on the grounds that Clark's determination was premature.
Clark had found that breath alcohol testing devices commonly used by law enforcement cannot reliably detect blood alcohol content above or below the calibrated range of 0.05 to 0.15 percent and therefore are not sufficient to meet the burden of proof in highest-rate DUI cases.
Attorneys told The Legal in January that Clark's ruling had the potential to impact thousands of pending DUI cases across Pennsylvania.
But in an unreported seven-page opinion, a unanimous three-judge panel said Clark abused his discretion in granting pretrial habeas corpus relief to defendant Jason R. Schildt because the state made at least a prima facie showing that Schildt had been driving under the influence.
The court remanded the case for trial.
Judge Cheryl Lynn Allen, writing for the court, said Clark "manifestly abused" his discretion by requiring the state to establish beyond a reasonable doubt the accuracy of the breath test administered to Schildt at such an early stage in the case.
"In short, the trial court prematurely and improperly held the commonwealth to its burden of proof at trial, in granting appellee's pretrial motion to quash the complaint," Allen said.
Allen was joined by Judges Susan Peikes Gantman and Sallie Updyke Mundy.
Schildt's attorney, Justin J. McShane of the McShane Firm in Harrisburg, told The Legal on Thursday that he and his client will most likely seek allocatur from the state Supreme Court based on language in the court's recent opinion in Commonwealth v. Dyarman, in which the justices ruled that the accuracy and calibration certificates for breath test machines are admissible without live testimony from the person who prepared them.
In Dyarman, Justice J. Michael Eakin, writing for a unanimous six-justice court, said the defendant could have challenged the accuracy of a breath test device "by calling the author of the certificates or offering other evidence to show flaws in the device, but any proffered evidence would have only affected the weight of this evidence, not its admissibility."
"Had there been an actual concern about the calibration or accuracy testing, a pretrial motion was available to address all such matters," Eakin said.
McShane said he believes, based on that language, that the Superior Court's ruling in Schildt was incorrect.
In Schildt, according to court documents, Schildt was involved in a single-vehicle accident in Londonderry Township, Pa., on January 16, 2010, at about 2:11 a.m.
State Trooper Jeremy Baluh arrived on the scene and found Schildt's vehicle lying on its side in a creek on the side of the road, according to court documents.
Baluh also noticed that Schildt staggered when he walked, had slurred speech, a strong odor of alcohol on his breath and red eyes, court documents said.
Schildt admitted that he had consumed multiple drinks before getting into his vehicle and Baluh arrested him for DUI, according to court documents.
Baluh drove Schildt to the Middletown Borough Police Headquarters for a breath test, which was conducted by Middletown Borough Police Officer Ben Lucas using an Intoxilyzer 5000EN, a device approved by both the state Department of Transportation and the state Department of Health for breath testing, court documents said.
Lucas obtained two breath samples from Baluh, one showing a BAC of 0.208 percent and the other showing a BAC of 0.214 percent, according to court documents.
Court documents said Schildt was then charged with two counts of DUI and driving on roadways laned for traffic.
On August 27, 2010, Schildt filed a motion to quash a charge that he violated 75 Pa.C.S. Section 3802(c), which prohibits driving with a blood or breath alcohol concentration of 0.16 percent or more, according to court documents.
On December 31, 2012, Clark granted the motion, saying that, in light of the expert testimony offered by the defense, "the unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable blood alcohol content reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent."
Clark said any reading above or below that range cannot be scientifically verified.
"Thus, the utilization of any instrument reading above or below that limited dynamic range cannot, as a matter of science and therefore law, satisfy the commonwealth's burden of proof beyond a reasonable doubt on an essential element of a charged offense for an alleged violation of 75 Pa.C.S.A. §3802(c) of the Pennsylvania Motor Vehicle Code," Clark said.
But Allen disagreed with Clark's assertion that he was "'constrained to agree'" with Schildt that the state was "'unable to prove an essential element of its case beyond a reasonable doubt as it pertains to a charge of DUI brought pursuant to 75 Pa.C.S. §3802(c).'"
Allen said the state's burden at that stage of the litigation was merely to establish a prima facie case that Schildt was controlling a vehicle and had a blood alcohol content of 0.16 percent or greater within two hours of doing so.
"We cannot agree with appellee's suggestion that the trial court properly granted his motion to quash because the commonwealth's proof of appellee's blood alcohol content was 'simply suspicion and conjecture,'" Allen said. "Given the test results at issue, the commonwealth established, at least prima facie, a violation of Section 3802(c). Any issue regarding the accuracy of the breath test affects the weight of the evidence and can be challenged at trial."
McShane said he did not consider the Superior Court's ruling to be a loss because it merely focused on the timing of Clark's ruling, while leaving the scientific analysis in Clark's opinion "undisturbed."
Dauphin County Assistant District Attorney Francis T. Chardo could not be reached for comment at press time.
(Copies of the seven-page opinion in Commonwealth v. Schildt, PICS No. 13-2634, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)