Commonwealth Punches Back Over Breathalyzer Results

Pennsylvania is currently in the midst of a legal battle over the admissibility of breathalyzer results in the prosecution of DUI cases. The state Superior Court on Thursday overturned a Dauphin County judge's decision in a drunken driving case that legal observers said could have curtailed the use of breathalyzers in such prosecutions. Yet the state court's ruling in the case, Commonwealth v. Schilt, won't end the battle over whether breathalyzers are accurate enough to provide evidence of motorists' blood-alcohol levels. The motorist's attorney, Justin McShane, said he will appeal the Superior Court ruling to the state Supreme Court in hopes of taking breathalyzer evidence off the table in DUI prosecutions once and for all.

"We're happy to take this up to the Supreme Court," McShane said. "That's where we always thought it would go."

The District Attorney for Dauphin County, Ed Marsico, hailed the Superior Court's decision to reverse county Judge Lawrence F. Clark Jr.'s ruling and to send the Schildtcase back to the county court for trial.

"The Superior Court properly found that breath tests should be admissible at trial. This ruling will allow police officers across the Commonwealth to continue to fight DUIs with breath testing devices," Marsico said.

Marsico appealed the Schildt case to the Superior Court soon after Clark issued his decision in late 2012. Clark ruled that breathalyzers, used by police throughout Dauphin County and elsewhere in Pennsylvania, aren't accurate beyond a blood-alcohol reading of 0.15 percent. His decision meant that the devices couldn't be used to gauge whether someone was intoxicated enough to be prosecuted under the state's highest level DUI statute, the most severe section of the drunken driving law.

Clark issued his written decision after McShane challenged breathalyzer accuracy in the Schildt case. Fellow Dauphin County Judge Scott A. Evans had also issued a similar oral ruling. The decision by Clark affected only Dauphin County cases, resulting in a dismissal of around 20 of them. By appealing to the Superior Court, Marsico was taking a risk that Clark's ruling would have a statewide impact if the state court ruled in Schildt's favor.

In sending Schildt's case back to county court for trial, the Superior Court didn't really dig into the issue of breathalyzer accuracy. Instead, it found that Clark had "prematurely and improperly" concluded that, given his finding regarding breathalyzer accuracy, prosecutors could not prove beyond a reasonable doubt that Schildt had been driving while in a high state of intoxication when he was involved in a one-car crash in Londonderry Township.

Even as it awaits a final resolution, the Schildt dispute has prompted an examination of the means used in Dauphin County to obtain evidence of intoxication levels for DUI cases. In Delaware County, for example, the preferred process is to rely on blood tests, not breathalyzers. However, in neighboring Philadelphia County, breathalyzer machines are the most frequently used method of obtaining BAC post-arrest.