(Photo by Gina Passarella)

Pennsylvania defense lawyers said the Pennsylvania Supreme Court’s refusal to take up an appeal of the Superior Court’s ruling that the accuracy of alcohol breath tests in highest-rate DUI cases must be determined at trial has taken much of the steam out of what once looked like it could be a game-changer for DUI law.

Edward F. Spreha Jr., a DUI attorney with Wagner & Spreha in Harrisburg, Pa., who was not involved in the case, said Commonwealth v. Schildt, which at one time had the potential to impact thousands of pending DUI cases across Pennsylvania, is now merely “a footnote.”

Still, Spreha and other DUI lawyers acknowledged the case did raise a novel challenge to the scientific validity of those tests, the merits of which remain unaddressed by state appellate courts.

Now, lawyers said, similar arguments may be used either as pretrial bargaining chips or trial defenses going forward.

“There’s now a legitimate issue to litigate before a jury and it gives the defense bar room to negotiate for a fair compromise,” said Cary B. McClain, a Philadelphia DUI defense and personal injury lawyer.

The high court denied allocatur in Schildt Feb. 25.

Defense counsel had asked the justices last October to take up the case, arguing that allowing the accuracy of breath test evidence to be determined before trial “promotes uniformity in the law, gives a clear signal to future litigants and is also scientifically correct.”

In September of last year, a three-judge Superior Court panel unanimously overturned Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr.’s controversial ruling in 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 2013 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, said 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, Schildt urged the 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.”

Otherwise, Schildt argued in the petition, “this exact matter will be litigated hundreds if not thousands of times” across the state.

But now that the justices have declined to hear arguments in the case at all, DUI defense lawyers said they don’t believe the courts will be inundated with similar challenges to breath tests.

For one, they said, the vast majority of law enforcement agencies across Pennsylvania have moved away from breath testing to blood testing.

But even in the comparatively rare cases where a client has been subjected to a breath test and wants to challenge the result, waging that type of battle is likely to be cost-prohibitive for most defendants, attorneys said.

“If you want to fight it on a case-by-case basis, you have to bring in the experts and spend the cash,” Spreha said.

Steven F. Fairlie, a DUI attorney with Fairlie & Lippy in North Wales, Pa., said defense experts in cases like Schildt “probably cost in the area of $20,000.”

“The average citizen can’t afford that,” Fairlie said.

Even for those defendants with the means to challenge breath tests, lawyers said it can be difficult to justify advising a client to take a DUI case to court.

For example, Fairlie said, first-offense, highest-rate DUI cases are eligible for accelerated rehabilitative disposition, but in many counties that’s contingent upon the defendant’s agreement not to challenge the breath test results.

According to Fairlie, advising a client to challenge a breath test at trial means advising a client to risk jail time in lieu of simply accepting ARD.

Likewise, Spreha said, lawyers will need to gauge whether judges in a particular county have exhibited a proclivity for siding with the defense when they make arguments similar to those raised in Schildt.

“If you know all the judges are finding people guilty regardless of your argument, it’s hard to say to your client, ‘Let’s try again,’” Spreha said.

Conversely, Spreha said, jury trials are risky because of their unpredictability.

But attorneys did agree that the scientific challenge raised in Schildt is an interesting one that could gain traction under the right trial circumstances.

“It’s a good argument and I think you could see juries getting persuaded to follow it,” McClain said.

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