www.penlive.com-A Dauphin County judge’s ruling has the potential to derail thousands of drunken driving prosecutions and convictions, not only locally but across Pennsylvania.
Judge Lawrence F. Clark Jr. concluded that breathlyzer machines used by law enforcement to gauge the intoxication level of drivers cannot be considered accurate beyond a blood-alcohol reading of 0.15 percent.
That means those devices can’t be used to determine if someone is so intoxicated that he can be prosecuted under the state’s highest level of DUI impairment statute.
That statute, which carries the most serious penalties under the DUI law, only can be imposed on drivers who register blood-alcohol readings of 0.16 percent or higher.
Drivers can be charged if their blood alcohol is more than .08 percent.
Clark also ruled that DUI prosecutions based on any blood alcohol-level readings secured by using the much-used Intoxilyzer 5000EN breathlyzer should be regarded as “extremely questionable.”
Testimony in the case convinced him that those machines aren’t properly calibrated to give accurate blood-alcohol readings at any level, the judge found. He said the process used to calibrate them doesn’t follow state regulations.
Clark’s ruling, which for the moment only affects Dauphin County DUI cases, stems from a challenge attorney Justin McShane filed on behalf of his client, Jason Schildt, 31, of Elizabethtown.
McShane challenged the breathalyzers’ accuracy in asking Clark to void breathlyzer evidence police used to charge Schildt with the highest level of DUI after a January 2010 crash in Londonderry Township.
In his decision, Clark voided the breathalyzer evidence not only against Schildt, but also for 19 other highest-rate DUI cases in county court.
McShane said Clark’s ruling “calls into question thousands of DUI convictions statewide.”
That could be the ultimate impact if state courts uphold Clark’s decision on appeal. District Attorney Edward M. Marsico Jr. couldn’t immediately be reached regarding whether his office will mount an appeal.
McShane cited state statistics showing that 12,957 sentences were issued in the highest rate of DUI charges cases in 2011. About 70 percent of those relied on breathalyzer evidence, he said.
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