THE Morning Call – Bad science convinced a Dauphin County judge to throw out breath test results in nearly two dozen drunken driving cases last month.
Now the attorney who discovered problems with the way breath alcohol testing machines in Pennsylvania are calibrated has asked the court to trigger a statewide ban on breath tests for DUI suspects.
The case has attracted the attention of criminal defense attorneys who say the penalties for a drunken driving conviction are too severe for unreliable test results to play a role.
“You have to wonder how many times have convictions been based upon equipment that wasn’t properly tested or calibrated,” said Easton attorney Philip Lauer.
But the prosecutor in the case says it’s too soon to say the decision should be applied statewide.
“This is one case. We are not the center of the universe,” said Dauphin County First Assistant District Attorney Fran Chardo.
Chardo said the case warrants further examination and he’s confident the decision will be reversed on appeal.
Lehigh County District Attorney Jim Martin said any impact of the decision, if it is upheld, would be limited in the Lehigh Valley, where most people arrested on suspicion of DUI are taken to central processing centers and undergo blood testing.
Judge Lawrence Clark said in his Dec. 31 opinion that “startling testimony” of a state witness about the methods used to calibrate new Intoxilyzer 5000EN breath test machines raised serious questions about the accuracy of their results, rendering them inadmissible as evidence in court.
Furthermore, Clark said, an oversight in the regulations governing monthly calibration of the machines means that breath test results for very low and very high levels of intoxication are also unreliable.
The decision came in the case of Jason R. Schildt, who was arrested and charged with DUI and traffic offenses after a state trooper discovered him shoeless and stumbling in a creek next to his overturned car after 2 a.m. on Jan. 16, 2010.
The results of two breath tests using an Intoxilyzer breath test machine indicated he had a blood alcohol content of more than 0.214 percent, nearly three times the legal limit for drivers in Pennsylvania, according to court papers.
Schildt’s attorney, Justin McShane of Harrisburg, filed a motion to quash the evidence against Schildt and 19 other DUI defendants. In a hearing over four days in April, McShane presented expert witnesses who explained why, in their opinions, the breath test results were unreliable.
The main problem in Schildt’s case stems from a change in Pennsylvania’s DUI law when state legislators, following the lead of other states, reduced the legal blood alcohol limit from 0.10 percent to 0.08 percent.
When the new limit and increased penalties for excessive impairment took effect in 2006, regulations governing the calibration for breath alcohol test machines were never updated.
The regulations, set forth by PennDOT and the state department of health in 1984, required breath test machines to be calibrated to 0.05 percent, 0.10 percent and 0.15 percent.
McShane’s witnesses testified that means that any test result less than 0.05 percent or greater than 0.15 percent is unreliable. In his opinion, Clark wrote that renders test results beyond those limits inadmissible as evidence.
Clark noted that the deficiency would cause problems not only in cases like Schildt’s, where he was charged with driving while excessively impaired with a blood alcohol content greater than 0.16 percent, but also in cases where very low levels of impairment constitute a violation. Commercial vehicle operators have a legal limit of 0.04 percent, and school bus drivers and under age drivers are limited to 0.02 percent.
The second problem was revealed in the testimony of an engineer for CMI Inc., which manufactures the Intoxilyzer machine used in Schildt’s case.
Brian Faulkner testified that the company used chemical solutions containing known concentrations of alcohol to calibrate its new machines. But Faulkner said that the company concocted the solutions itself without sending them to an independent lab to verify their accuracy, in violation of state regulations.
“It is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness,” Clark wrote.
McShane said Monday he has filed a motion asking Clark to send the case to a state appeals court and arguing that breath testing across the state should be suspended.
“I think morally it’s the right thing to do. Scientifically, it’s the right course of action,” McShane said. “I don’t want drunk drivers out there more than anyone else. But I don’t want convictions that are not based on science, and in fact, are based on science fiction.”
A spokeswoman for the state police said the agency is reviewing the decision to determine if changes are warranted, but declined to discuss the case in detail. A spokesman for PennDOT said the regulations are under review.
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