County DUI cases on hold

http://citizensvoice.com – Scores of drunken driving cases in Luzerne County are in limbo as prosecutors await a state court ruling about the admissibility of Breathalyzer results.

With the alcohol testing method being questioned, the county’s central processing center to administer official breath tests has been shuttered and police can now only take suspects for blood-alcohol testing.

Luzerne County prosecutors and the public defender’s office have agreed to place many driving under the influence cases involving breath tests on hold until the issue is resolved, according to a continuance motion filed Wednesday.

The agreement came on a day when the U.S. Supreme Court weighed in on an unrelated DUI issue, ruling cops cannot force uncooperative suspects to submit to blood testing without a search warrant.

State law allows cops to use Breathalyzer tests and blood alcohol levels as evidence in DUI cases, but a recent Dauphin County court ruling challenged the accuracy of breath test machines and prompted changes around the state, including in Luzerne County.

“It’s not a foolproof method,” Justin McShane, a Harrisburg attorney who successfully challenged the case, said of Breathalyzers during a telephone interview Wednesday. “There is a flaw in the testing.”

After McShane’s challenge, Dauphin County Judge Lawrence F. Clark Jr. in January invalidated many Dauphin County drunk driving case after finding flaws in the Intoxilyzer 5000EN – the same device used by area police in the Luzerne County DUI Processing Center located at Wilkes-Barre police headquarters. The judge’s decision had no bearing outside of Dauphin County until prosecutors there appealed to the state Superior Court. The appeal puts the court in position to issue a ruling affecting the entire state.

Luzerne County promptly stopped using the processing center after the appeal was filed.

“With this looming out there, it didn’t make sense to keep using the center,” Luzerne County First Assistant District Attorney Sam Sanguedolce said. “It didn’t seem prudent to create more cases that were going to be challenged.”

With uncertainty looming over the official breath tests, the state police and local cops around the commonwealth stopped using Breathalyzers. Police officers are still using portable breath test machines, devices used to build suspicion prior to taking a defendant for an official test.

Criminal cases for those arrested based on Breathalyzer results are also being placed on hold as a result of the legal limbo.

“We saw a trickle-down effect. The statewide impact is moving toward blood testing,” McShane said. “The agreement to put the cases on hold is what I’ve been advocating.”

The Luzerne County Public Defender’s Office on Wednesday filed a continuance motion on behalf of eight defendants with DUI cases pending in county court. The motion said the district attorney’s office agreed to put the cases on hold until the Superior Court makes a ruling.

“We had several conferences to work together,” Sanguedolce said. “We just agreed it was not a prudent use of county resources for each defendant to individually challenge the results.”

Sanguedolce said he was not immediately sure how many total cases are affected because DUI statistics in the office are not broken by who took a breath test and who submitted to blood testing. Legal experts say thousands of DUI cases could be voided across the state if the Superior Court upholds the Dauphin County ruling.

The choice of taking a taking a defendant for a breath test or a blood test had been left to the discretion of the arresting officer when the DUI processing center was open. The center normally was only open Thursday through Sunday, evening hours into the early morning.

“It was cheaper (for the defendant). It was instantaneous. And sometimes people are afraid of needles,” Wilkes-Barre police officer Phil Myers noted Wednesday while demonstrating how the device is used with fellow officer, James Conmy.

Officers now spend up to two hours taking a suspect for blood at local hospitals, then wait weeks and even months for results, the officers noted.

The machines are regularly inspected and calibrated by experts, but the inspection process was cited by the Dauphin County judge as part of the reason he questioned the accuracy of the results.

Under Pennsylvania law, DUI suspects are required to submit to one form of testing and are penalized harshly if they refuse. DUI suspects who refuse testing face the same penalties as if they were convicted of the highest rated DUI offence. They also face a loss of their driver’s license for two years. The penalties coincide with the often-heard notion that driving in a privilege, not a right, Sanguedolce said.

“You’ve agreed beforehand to take this test,” he said.

McShane, who specializes in DUI law, believes the U.S. Supreme Court ruling on Wednesday opens the door to challenge Pennsylvania’s enticement to submit to a blood test, or face harsh penalties if the test is refused. The court ruled police can’t arbitrarily force an uncooperative DUI suspect into blood testing without a warrant.

“This case opens up a can of worms. In Pennsylvania, there is a greater sentencing enhancement if you refuse a blood test. That practice is unconstitutional,” said McShane, who filed a friend of the court brief in the Supreme Court case on behalf of a Missouri DUI suspect whose blood was seized without a warrant. “You have a right to say no to the government. If you say no, they should have to get a warrant.”

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