Don’t Hold Your Breath!
By: Douglas K. Rosenblum
Driving Under the Influence is one of the most commonly charged offenses in the Commonwealth of Pennsylvania. Effective immediately, the Pennsylvania State Police are temporarily halting the use of breath tests to determine blood alcohol levels in drunk driving arrests. This monumental change comes one month after Dauphin County Court of Common Pleas Judge Lawrence F. Clark, Jr. questioned the reliability of this process in Commonwealth of Pennsylvania v. Schildt (case no. 2191 CR 2010). In his 28-page opinion, Judge Clark notes that breath testing devices, including the Intoxilyzer 5000EN device manufactured by CMI, Inc., are only calibrated at 0.05%, 0.10% and 0.15% blood alcohol content. Therefore, there is no basis to support the tests’ accuracy outside of that range. Furthermore, the calibration solutions are not tested by an independent source. In Pennsylvania, an individual with blood alcohol content of 0.16% or higher faces increased penalties.
Police use a variety of field sobriety tests to establish probable cause for DUI arrests. Once probable cause has been established, suspects are then transported for testing. For many years local police departments have transported suspects to hospitals for such testing by blood, thereby producing an accurate report of the levels of both alcohol and controlled substances. Intoxilyzers cannot detect drug intoxication. Although the Pennsylvania State Police has noted that Judge Clark’s opinion is being reviewed by a higher court and may be reversed, this temporary suspension of breath tests is a cautious approach to avoid convictions that could be questioned in the future.