A Dauphin County trial judge has ruled 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 percent to 0.15 percent and therefore are not sufficient to meet the burden of proof in highest-rate DUI cases.

In Commonwealth v. Schildt, Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr. granted defendant Jason R. Schildt’s 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.

The ruling also applies to 19 other conjoined cases, according to Clark.

Clark said 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.

In Schildt, according to Clark, Schildt was involved in a single-vehicle accident in Londonderry Township, Dauphin County, 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 Clark.

Baluh also noticed that Schildt staggered when he walked, had slurred speech, a strong odor of alcohol on his breath and red eyes, Clark said.

Schildt admitted that he had consumed multiple drinks before getting into his vehicle and Baluh arrested him for DUI, according to Clark.

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, Clark 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 Clark.

Clark 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 the charge related to Section 3802(c), according to Clark.

Clark said the court, recognizing the possible statewide implications of the issues raised by the motion to quash, invited PennDOT, the Attorney General’s Office, the DOH and the Pennsylvania State Police to participate in the pre-hearing conferences in February and November, but that all but PennDOT declined to participate.

According to Clark, while Schildt submitted three “extensive” expert reports, the state produced only a one-page letter penned by Brian T. Faulkner, an engineer with CMI, the manufacturer of the Intoxilyzer 5000EN.

“It was quite apparent to the court at the [evidentiary] hearing that the commonwealth’s proposed expert witness, Mr. Faulkner, possessed minimally significant enough credentials to support the requirements for reasonable pretension on some of the scientific matters under examination in the case, but did not possess sufficient credentials to be able to opine on any advanced scientific matters,” Clark said. “However, in the interests of fairness and justice to the commonwealth’s position, the court allowed the commonwealth to call Mr. Faulkner as its limited expert witness and accepted his testimony on the record.”
Clark also noted that, due to the limited scope of Faulkner’s expertise, any challenges to the accuracy of the DataMaster breath testing devices manufactured by National Patent Analytical Systems Inc., which were used in many of the conjoined defendants’ cases, “remain completely un-rebutted.”

According to Clark, a “quite thorny issue” arose when Faulkner testified during the evidentiary hearing that CMI makes its own simulator solution — a substance that mimics human breath in order to calibrate breath testing devices — and checks it in-house with a gas chromatograph verified with National Institute of Standards and Technology traceable reference materials, despite state regulations that require the check to be performed by an outside, independent laboratory.

“Mr. Faulkner’s own testimony stunningly supports the defendant’s claim that the Intoxilyzer 5000EN could not have produced a legally acceptable reading of his (the defendant’s) blood alcohol content derived from the breath alcohol content as tested by the Intoxilyzer 5000EN because the device was never properly calibrated according to Pennsylvania regulatory standards in the first place,” Clark said. “Under those Pennsylvania standards, the simulator solution used in the calibration of the breath testing device by the manufacturer of the device must be certified based on gas chromatographic analysis by a laboratory independent of the manufacturer.”

Meanwhile, defense expert Dr. Jerry D. Messman, an expert in organic chemistry, analytical chemistry, metrology, spectrometry or spectroscopy, physical chemistry, good laboratory methods, thermodynamics and statistical thermodynamics, opined that a simulator solution prepared in-house is not as reliable as one that has been certified by an outside lab since an improperly calibrated device will result in inaccurate readings.

“Hence, the simulator solution produced and utilized by CMI is problematic at best, as confirmed by the DOH and PennDOT regulatory requirement that a manufacturer of a breath test device cannot rely on its own uncertified simulator solution but instead must utilize a simulator solution with a certification based on gas chromatographic analysis by a laboratory independent of the manufacturer,” Clark said.

In addition, Clark said, while Faulkner testified that CMI uses zero as the first value introduced to the Intoxilyzer in order to calibrate the device, defense expert Dr. Lee N. Polite, an expert in organic chemistry, analytical chemistry, physical chemistry, spectrometry or spectroscopy, good laboratory practice, EPA regulations, metrology, thermodynamics and statistical thermodynamics, testified that zero is not a proper data point because one cannot measure zero.

Polite also opined that because state law only requires that calibration testing consist of conducting three separate series of five simulator tests to give readings of 0.05 percent, 0.10 percent and 0.15 percent, there’s no data that proves a device is accurate below or above that range, according to Clark.

Clark agreed with Polite’s opinion.

“Inasmuch as the monthly calibration verifications in Pennsylvania range from 0.05 percent to 0.15 percent, it is this court’s estimation that the Intoxilyzer 5000EN could not produce a legally acceptable blood alcohol content reading above 0.15 percent for the defendant which can, per se and as a matter of acceptable evidentiary law, satisfy the commonwealth’s burden of proving each and every element of a charged offense beyond a reasonable doubt, without engaging in some form of speculation, conjecture or guess,” Clark said.

Clark said that “opining from such an uncorroborated and unworthy basis for establishing constitutionally acceptable and required evidence to determine a critical element of a charged DUI offense is an anathema to the concept of fundamental justice and is repugnant to our Constitution.”

Schildt’s attorney, Justin J. McShane of the McShane Firm in Harrisburg, could not be reached for comment at press time.

Dauphin County District Attorney Edward Marsico also could not be reached.

The Dauphin County Public Defender’s Office represented the conjoined defendants in the case. Chief Public Defender Bradley Winnick could not be reached at press time.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 30-page opinion in Commonwealth v. Schildt, PICS No. 13-0030, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •