The Pennsylvania Superior Court’s September ruling that the accuracy of an alcohol breath test must be addressed at trial and not before is being appealed to the state Supreme Court.

Defense counsel on Monday asked the justices to grant allocatur in the case, arguing that allowing the accuracy of such evidence to be determined before trial “promotes uniformity in the law, gives a clear signal to future litigants and is also scientifically correct.”

A three-judge panel of the Superior Court unanimously 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 the Superior Court never reached a scientific analysis of the breath tests in its seven-page memorandum opinion, instead finding that 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 with a breath alcohol concentration of 0.16 percent or more.

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.

Following the ruling, Schildt’s attorney, Justin J. McShane of the McShane Firm in Harrisburg, told The Legal he did not consider it 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.”

In his petition to the Supreme Court on Monday, Schildt urged the Supreme Court to address the scientific analysis, saying the case “presents the best opportunity to provide guidance on a statewide level as to this repetitive issue.”

Schildt noted that the Pennsylvania State Police suspended the use of alcohol breath testing following Clark’s ruling and argued that, if the Superior Court’s ruling is allowed to stand and law enforcement continues the practice, “this exact matter will be litigated hundreds, if not thousands of times” across the state.

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, which pertains to the failure to observe the laws of roads with two or more lanes. Schildt was specifically charged under 75 Pa.C.S.A. §3309(1) for failing to keep his vehicle within a single lane.

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.”

But Schildt argued in his petition to the Supreme Court that the state failed to put forth even prima facie evidence that Schildt’s breath alcohol reading was 0.16 percent or higher within two hours of driving.

“All of the scientific expert witnesses testified that the BrAC measurement was ‘above 0.15 percent,’ but the record reflects and the trial court found that none of the experts could express that there was any evidence that the reported BrAC measurements ever exceeded 0.16 percent,” Schildt said in his petition.

Schildt also pointed in his petition to language in the Supreme 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.

Schildt argued in his petition that this language in Dyarman “signaled that pretrial motions can and should be used to remedy this type of systemic problem and promote judicial economy.”

McShane said Wednesday that he and his client hope the Supreme Court grants allocatur so it can provide authoritative guidance on the issue.

Otherwise, McShane said, the statewide court system will be clogged with additional cases challenging the accuracy of alcohol breath tests.

Dauphin County Assistant District Attorney Francis T. Chardo declined to comment on the case.

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