Court sources say a Superior Court ruling is expected within the next 90 days regarding the accuracy of breath alcohol-testing devices used in suspected DUI cases.
Last December, Dauphin County Court of Common Pleas Judge Lawrence F. Clark Jr. ruled in Commonwealth v. Schildt 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.
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.