CRIMINAL LAW

Motor Vehicles • DUI • Supernatant Blood Testing • Pre-Trial Hearing on Admissibility

Commonwealth v. Brugger, PICS Case No. 14-0500 (Pa. Super. March 25, 2014) Wecht, J. (17 pages).

Trial court abused its discretion in denying commonwealth pre-trial hearing on the admissibility of BAC conversion evidence. Reversed.

Police trooper observed a vehicle stopped in the middle of a street for no apparent reason. Noticing that the left rear brake light was inoperative, trooper activated his emergency lights and conducted a traffic stop.

Trooper detected a strong odor of alcohol emanating from vehicle. Appellee’s eyes were blood shot and glassy, and her speech was slurred. Appellee exhibited signs of intoxication during field sobriety tests. A breath test indicated the presence of alcohol and appellee was transported to Good Samaritan Hospital in Lebanon, Pennsylvania. Appellee was charged with DUI and related offenses.

Because Good Samaritan Hospital performed BAC testing on blood serum rather than whole blood, and because admission of such evidence requires a converting factor, commonwealth moved in limine for a pre-trial hearing on the admissibility of appellee’s BAC test results. See Commonwealth v. Haight, 50 A.3d 137 (Pa. Super. 2012) (supernatant BAC test may be sufficient to sustain conviction for DUI); Commonwelath v. Karns, 50 A.3d 158 (Pa. Super. 2012) (supernatant BAC evidence presented was insufficient to sustain conviction for DUI).

Trial court denied the motion based upon an en banc decision of the Lebanon County Court of Common Pleas that preceded the case, issued approximately seven months after Haight and Karns were decided (omnibus opinion). The omnibus opinion addressed the DA’s omnibus motion in limine seeking a hearing and order concerning the admissibility of serum BAC testing conducted by Good Samaritan Hospital in eight pending DUI cases involving eight different defendants. In that case, trial court’s primary concern in denying the motion was the procedural problem created by issuing a unitary evidentiary ruling in eight cases at once. The Superior Court reversed.

A trial court must conduct a pre-trial evidentiary hearing on the admissibility of evidence outside the hearing of the jury when justice so requires. See Pa.R.E. 104.

Pennsylvania law manifestly requires the use of a reliable conversion factor to infer the requisite whole-blood BAC from super-natant BAC results. However, the source, content, and rigor required of such testimony remains less than clear. These questions can only be resolved through the further development of the applicable standards by appellate courts, not by denying pre-trial hearings to await pronouncements from them. The Superior Court cannot issue advisory opinions, but may decide only the cases that come before it. Here, trial court abused its discretion in denying commonwealth a pre-trial hearing on the admissibility of its BAC conversion evidence.