Pennlive.com – In something of a gamble, the Dauphin County district attorney’s office is asking the state Superior Court to overturn a county judge’s ruling that severely crimps the use of breathalyzers in drunken driving prosecutions.
Judge Lawrence F. Clark Jr. ruled late last month that breathalyzers, which police throughout Dauphin County use to build DUI cases, aren’t accurate beyond a blood-alcohol reading of 0.15 percent.
That means they can’t be used to gauge whether someone is 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 decision after attorney Justin McShane challenged the breathalyzer accuracy level on behalf of Jason Schildt of Elizabethtown, a client in a drunken driving case. Fellow county Judge Scott A. Evans also had issued a similar oral ruling.
At the moment, Clark’s ruling only affects cases in Dauphin County. Schildt’s case and around 20 other local DUI cases already have been dismissed as a result of Clark’s decision.
However, by filing today’s appeal to the Superior Court the DA’s office is risking a statewide impact on high-level DUI cases.
Clark’s ruling could essentially take effect all across Pennsylvania and void thousands of DUI prosecutions if the Superior Court agrees with him that the accuracy of breathalyzers is lacking.
District Attorney Ed Marsico couldn’t immediately be reached for comment on the decision to appeal.
McShane said the appeal was expected. “It’s an extreme calculated risk,” he said. “I think politically they had no other choice.”
At least five counties and the state police have acknowledged the Schildt decision by shifting to blood-alcohol-based evidence in DUI cases, McShane said. Marsico has told police in his county to get blood tests for DUI suspects for the time being.
The breathalyzer ruling didn’t affect counties, including Cumberland County, that already rely on blood testing for DUI cases.
McShane, meanwhile, is mounting another challenge in Dauphin County Court to try to force the complete discontinuation of the use of breathalyzer-based evidence. Clark also is weighing that petition.
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