A recent Dauphin County trial court decision that calls into question the accuracy of evidential breath alcohol testing could potentially impact thousands of pending DUI cases across Pennsylvania, despite the fact that many counties now use blood testing, attorneys said.

In fact, the case has already had a statewide impact: Dauphin County Assistant District Attorney Francis T. Chardo told the Law Weekly last Wednesday that he has met with members of the Pennsylvania State Police who agreed to suspend breath testing in favor of blood testing across the state until the case is resolved.

In Commonwealth v. Schildt, Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr. ruled that evidential breath 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.

Clark 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 currently applies to 19 other conjoined cases, according to Clark.

But if the case, which Chardo said his office is planning to appeal, is affirmed by the Superior Court, it could impact far more cases than that across the state, attorneys said.

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.

Edward F. Spreha Jr., a DUI defense attorney with Mancke, Wagner & Spreha in Harrisburg who was not involved in Schildt, told the Law Weekly that if Clark’s ruling ultimately stands, it could have a widespread affect on DUI cases, particularly in Dauphin County, where he estimates about 50 percent of alcohol testing is still administered through breath tests as opposed to blood tests.

"We are absolutely following it closely," Spreha said, noting that in Pennsylvania there are likely thousands of DUI cases currently in the pipeline that involve breath test evidence. "It could have statewide, if not nationwide, implications."

Schildt’s attorney, Justin J. McShane of the McShane Firm in Pennsylvania, told the Law Weekly that while statistical data is lacking regarding the ratio of breath-to-blood testing in Pennsylvania, he estimates that 60 to 70 percent of all DUI cases in Pennsylvania still rely on breath testing, particularly because the practice remains prominent in both Pittsburgh and Pennsylvania.

According to Clark’s opinion in Schildt, a "quite thorny issue" arose when Brian T. Faulkner, an engineer with CMI, the manufacturer of the Intoxilyzer 5000EN, 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."

While Clark’s ruling in Schildt invalidated breath-test results below 0.05 percent and above 0.15 percent, McShane filed a January 7 motion in a separate case — Commonwealth v. Rosario — seeking, based on the lack of independent verification of in-house calibrations, to toss out all per se counts of DUI in cases in which breath-test devices were used.

In the motion, McShane cites the 1992 case Commonwealth v. Thill, in which the state Superior Court held that breath-test results may be suppressed in cases where the simulator solution was not manufactured and tested by an independent lab.

The motion alleges that the CMI is not the only manufacturer that doesn’t comply with Pennsylvania law when calibrating its breath-test devices.

"It is suspected that the other manufacturers of EBTs (Intoximeters and National Patent Analytical Systems) that are deployed in Pennsylvania either, similar to CMI, make their initial calibration from in-house solutions without independent verification or use third-party vendor material that does not adhere to the scientific standards for certified reference materials," the motion said.

Cary McClain, a Philadelphia criminal defense lawyer who handles DUI cases, said that if Schildt goes to the Superior Court, the potential exists for all cases involving the Intoxilyzer 5000EN to be tossed out.

But McClain was skeptical of the notion that the court would extend that suppression to other devices without specific evidence that the manufacturers failed to comply with state law.

Spreha said Clark’s ruling in Schildt is a victory for DUI defense attorneys, but noted that the question remains whether the Superior Court will, like Clark, view the issue in the case as one of admissibility or as one of weight of evidence.

If the Superior Court finds that a breath-test manufacturer is required to comply with Pennsylvania regulations, Spreha explained, the issue is one of admissibility, which could lead to Clark’s ruling being upheld and possibly the invalidation of all breath-testing results in Pennsylvania.

But if the Superior Court determines that manufacturers are not required to comply with Pennsylvania regulations and that law enforcement did follow the law, the issue may then be one of weight of evidence, requiring case-by-case examination, Spreha said.

Chardo said that’s the argument his office intends to make on appeal.

McShane, however, said that while manufacturers have no duty to follow Pennsylvania regulations when calibrating their devices, breath-test evidence gathered in Pennsylvania using those devices is not admissible unless the devices were calibrated in compliance with state law.

"The equipment manufacturer can use Ouija boards [to calibrate a device] if they want, but as soon as you put it in Pennsylvania, in order for [evidence] to be admissible, it must comply with Pennsylvania statutes," McShane said.
For now, it remains to be seen whether Clark’s ruling in Schildt will eventually become statewide law.

Spreha said he believes prosecutors and law enforcement in parts of Pennsylvania where breath tests are still commonly used should exercise caution until the issue is settled.

"If I was a district attorney’s office in a county that’s using breath tests, I would send out an immediate notice to shut them down and bring [drunken driving suspects] in for blood tests," Spreha said.

Chardo told the Law Weekly that in addition to meeting with the state police, he also met with the heads of the county’s municipal police departments, who likewise have agreed to forego breath testing in favor of blood testing until Schildt is resolved.

McClain, meanwhile, said the uncertainty of where Schildt will ultimately lead can now be used by defense attorneys as a bargaining chip to get their clients’ charges reduced from third-tier offenses to second-tier offenses, which can often mean less jail time.

McClain said it’s possible district attorneys will begin advising prosecutors to move away from charging third-tier offenses in order to avoid a potential avalanche of appeals based on Schildt.

Spreha said lawyers need to determine on a case-by-case basis whether it’s in a client’s best interest to try to fight charges based on BAC.

According to Spreha, in certain cases in which a client’s BAC was above 0.16 percent but a conviction remained likely because impairment was also involved, he’s been able to work out a resolution with prosecutors in which the charges were reduced from a highest-rate offense to a high-rate offense in exchange for a guilty plea.

McShane, meanwhile, said his ultimate goal is to make blood tests the only method of BAC measurement in Pennsylvania, noting that, like everyone else, his aim is to keep drunken drivers off the road.

"There’s a better way of doing that and it involves getting out of the 1950s and doing blood tests with gas chromatography," McShane said.

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