Breath test results in Pennsylvania excluded from evidence based on challenge to the linear accuracy of the breath test machine

For Massachusetts OUI lawyers, the recent decision of the Pennsylvania Superior Court may be used to challenge the admissibility of breath test results in Massachusetts.

In the recent case of Commonwealth v. Schildt, the defendant’s Attorney Justin McShane argued that the breath test machine was incapable of producing accurate and reliable results outside a linear range of .05 to .15. This argument was made because Pennsylvania does not test its breath test machine for accuracy outside of those values. The victory in the case by Attorney McShane was the results of years of dedication to understanding the science of involved in DUI cases which has made him one of the leading DUI lawyers in the United States.

Pennsylvania law, like Massachusetts OUI law has a provision that any breath test result over .08 results in a presumption that the individual is under the influence of alcohol. This is considered a per se violation because if the breath test results is admitted into evidence and deemed reliable, there is a presumption of impairment.

The defendant argued that the Commonwealth of Pennsylvania need to calibrate the breath test machine to account for the entire linear range of values that the machine could produce.

Under Pennsylvania law, a defendant faces more strigent penalties if a breath test result is over .15. Massachusetts law does not enhance penalties for higher breath test reading other than imposing additional alcohol treatment for those under 21, attendance at in-patient program if the breath test result is over .20, and if over 21, the completion of an alcohol evaluation known as a 24Q evaluation.

In makings its breath test challenge, the defense called three expert witnesses. The trial judge also found that the testimony of the expert from the State may have demonstrated that the State was not following the proper procedure for breath testing, undermining the accuracy of all test results State wide.

The trial judge noted that Pennsylvania DUI law requires that the manufacturer of a simulator solution shall certify to the tester that is solution is of the proper concentration to produce the intended results when used for for callibrating breath test devices.

A second issue arose during this proceeding, that is, the calibration of the breath test machine by a third party, is required by law. The manufacturer of the Intoxilyzer employed in-house calibration of the devices, as described by the prosecution’s sole expert witness and did not have the devices calibrated by an independent party. The testimony for the prosecution, clearly supports the defendant’s claim that the results stemming from an Intoxilyzer 5000EN are not legally acceptable under the state’s regulatory standards for calibration.

Pennsylvania law states that the certification shall be based on gas chromatography analysis by a laboratory independent of the manufacturer. The State’s expert testified that CMI, the breath test manufacturer, does not follow that procedure. The Court found that the State has blatantly ignored the regulations implemented to establish the accuracy of breath test results.

The defense expert testified that the State would need to test the breath testing machine at higher ranges to ensure accuracy of the machine at values above .15. The court noted that the manufacturer tests the breath test machine at values above .15, but the machine is never tested at those higher values once it leaves the manufacturer’s hands. Accordingly, the trial judge excluded the results from evidence.

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