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DUI appeals could jam Pennsylvania courts

| Thursday, Jan. 3, 2013, 12:17 a.m.

A Dauphin County judge's decision questioning the accuracy of widely used devices to measure blood-alcohol levels could bring scrutiny to thousands of drunken-driving convictions, lawyers said Wednesday.

Dauphin County Judge Lawrence F. Clark Jr. ruled on Monday that machines, such as Breathalyzers and Intoxilyzers, used to measure a driver's sobriety can't be considered accurate for blood-alcohol contents readings between zero and 0.05 percent and beyond 0.15 percent. The legal limit is 0.08 percent.

Because of Clark's decision, police in his county can't use the devices to determine whether someone is intoxicated enough for prosecution under the state's highest level of DUI impairment. State law requires one year in jail for drivers who register a reading twice the legal limit — 0.16 percent or higher.

“That would have a tremendous impact,” said Pittsburgh lawyer David J. Shrager, who handles DUI cases. “It's going to really be attacking a lot of convictions, and it's also going to be fruit for future cases. If this were to go statewide, everyone who was convicted would have to be retried or they'd have to be prosecuted at a lower tier.”

The judge's ruling stems from a challenge filed by Harrisburg lawyer Justin McShane. He based it on how police calibrate the machines, said Tim Barrouk, a senior litigation associate at McShane's firm.

State police use alcohol solutions of 0.05 percent, 0.10 percent and 0.15 percent to calibrate the devices, Barrouk said. If prosecutors appeal the decision and the Superior Court affirms it, “it's something that would be sure to spread to other counties.”

Dauphin County District Attorney Edward M. Marsico Jr. could not be reached regarding whether his office will appeal.

Whitehall police Chief Donald Dolfi, president of the Western Pennsylvania Chiefs of Police Association, said he never has heard of accuracy problems with the devices. Dolfi said his department takes suspected drunken drivers to a hospital to have blood drawn.

“I'm not going to say that blood is more accurate than the Intoxilyzer. The decision level for my department is our proximity to two hospitals,” Dolfi said. “For the safety of everybody involved, I thought it was more prudent to use blood.”

Shrager said that even if the machine reading is inadmissible, an officer's testimony still could lead to a conviction. Appealing convictions would be up to individuals, he said.

“A lot of people may not want to take that chance,” Shrager said.

Judges issued nearly 13,000 sentences for the highest rate of DUI charges in 2011, according to state police figures. Barrouk said about 70 percent of those relied on evidence from the machines.

Adam Brandolph is a staff writer for Trib Total Media. He can be reached at 412-391-0927 or abrandolph@tribweb.com.

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