Motion Comes on the Heels of the Ruling in Commonwealth v Schildt
In a latest development, The McShane Firm has motioned to have breath testing banned in the state of Pennsylvania. This comes on the heels of the ruling of Dauphin County Judge Lawrence F. Clark in the case of Commonwealth v Schildt (complete ruling).
Attorney McShane has asked the court to dismiss all current Pennsylvania DUI cases involving breath testing as well as re-openeing all such cases that have occurred in the past year and 90-days.
Media Coverage of This Important Development
This step comes after it revealed that the manufacturer of the Intoxilyer 5000EN, CMI Inc. not compliant with state regulations. In his ruling in Commonwealth v Schildt, Judge Lawrence F Clark, Jr. writes, “However, notwithstanding any such “verifying” undertakings performed by the manufacturer (CMI) on its own gas chromatograph, the bare FACT remains that the entity (CMI) that is performing the initial calibration of the breath testing device is using a simulator solution which was prepared (and allegedly subjected to some sort of a gas chromatographic analysis) by the same manufacturer and calibrator of that device. The regulatory requirement of a “gas chromatographic analysis by a laboratory independent of the manufacturer” has been blatantly ignored and obviously violated.”
This means that the reading from the Intoxilyzer 5000EN breath machine is no longer considered reliable. Judge Lawrence F Clark, Jr. writes in his opinion, “As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,” wrote in his opinion in the Schildt case.
If granted, this motion could affect tens of thousands cases statewide according to McShane.