Allegheny County DA discourages using breath testing for DUI arrests

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Pulled over after downing that last beer or six? Forget blowing into a tube. For the drunkest drivers in Allegheny County, it's going to be blood test or bust.

Prompted by a recent court ruling that questioned the reliability of breath-testing devices, Allegheny County District Attorney Stephen A. Zappala Jr. is telling police chiefs temporarily to consider using only blood tests on two categories of suspected drunken drivers -- the most intoxicated and the least impaired.

In a letter dated Monday and sent to Pittsburgh police Chief Nate Harper and Reserve police Chief Fred Boory Jr., the head of the Allegheny County Chiefs of Police Association, Mr. Zappala advised departments that a problem has been identified with using breath-analysis readings of below 0.05 and above 0.15 blood alcohol level.

Mr. Zappala's letter follows a broader Jan. 9 order by the Pennsylvania State Police ordering all troopers to stop using breath-testing devices and instead rely only on blood tests for detecting the presence of alcohol.

It is illegal in Pennsylvania for most adults to drive with a reading of above 0.08. Drivers who refuse to submit to either a breath or blood test can have their licenses suspended.

Criminal charges fall into one of three categories depending on the level of intoxication. The highest level affects people whose blood alcohol level is above 0.16 within two hours of driving.

While Mr. Zappala's letter is advisory, as the head of the office that decides whether to prosecute, the district attorney holds considerable sway in influencing the behavior of police departments.

Mr. Zappala linked his decision to a Dec. 31 ruling by Dauphin County Common Pleas Judge Lawrence F. Clark Jr. on a drunken-driving case.

Harrisburg defense attorney Justin J. McShane convinced Judge Clark -- a retired 20-year veteran state trooper -- that fundamental problems existed with a state police DUI case that used data from the Intoxilyzer 5000EN breath-analysis device.

State troopers typically use another brand, the DataMaster. But in the case of defendant Jason R. Schildt, who was charged Jan. 16, 2010, a trooper relied on an Intoxilyzer 5000EN reading performed at a local police station. Police say Mr. Schildt blew a 0.208 and a 0.214, or more than twice the legal limit.

Mr. McShane argued that the Intoxilyzer is not properly field tested to produce readings above or below certain levels of intoxication. His specific challenge pertained to motorists whose readings show less than 0.05 or more than 0.15 blood alcohol level.

"And the unvarnished FACTS of this case ultimately establish that the array of breath testing devices presently utilized in this Commonwealth ... as those devices are presently field calibrated and utilized in this Commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a Defendant's breath, outside of the limited linear dynamic range of 0.05 to 0.15," according to the judge's 30-page opinion.

State law requires that the testing of breath-analyzing machines must simulate readings of between 0.05 and 0.15 -- but not below or above those ranges. And therein lies the problem.

"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works -- definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," one expert witness testified for the defense. "Anything outside of the range of 0.05 percent to 0.15 percent is not a valid number."

CMI Inc., the Owensboro, Ky.-based manufacturer of the Intoxilyzer, does not agree. Alan Triggs, CMI's corporate counsel, said readings outside the bounds of field testing can be interpolated or extrapolated.

"It is reliable," Mr. Triggs said. "It can go from basic air, which is zero, up to the maximum a person can go."

The ruling, which is under appeal to state Superior Court, is having ramifications beyond the nearly 20 Dauphin County cases that could be tossed out. It could potentially lead to defense attorneys challenging thousands of drunken-driving convictions statewide.

"It doesn't only affect the current cases in the pipeline, but all people on supervision who have lost their licenses as a direct result of [being charged with intoxication at the highest level] ..." Mr. McShane said. "This opens up a can of worms."

The impact might be felt most acutely in Allegheny County, where scores of police departments use both breath and blood tests. Breath analysis has been the Pittsburgh police's primary testing method.

Allegheny County registers the highest number of arrests for driving while intoxicated/driving under the influence for any of the state's 67 counties, according to state police data.

In 2011, there were 4,664 DWI/DUI arrests in Allegheny County, according to the state police -- more than 10 percent of the 44,256 arrests statewide that year. The next-highest tally was 2,894 arrests in Bucks County.

"I believe it could result in a lot of post-conviction filings," said Mike Sherman, a Downtown attorney specializing in DUI cases and former state police lawyer who worked with Mr. McShane.

Mr. McShane said seven Pennsylvania counties, including Dauphin, already have abandoned breath testing and moved to using blood tests exclusively.

As a remedy, both the state and Mr. Zappala are planning to field test breath-testing devices at levels higher than 0.15. Locally, the effort should be completed by the end of March.

"What we're looking to do now is get additional calibration mixes prepared and certified that meet the state requirements," likely by testing up to 0.30, said Robert Huston, director of the county medical examiner's forensic laboratory, which handles breath analysis.

Mr. Triggs, of CMI, calls it "overkill." But another question crops up when determining what the highest level of field testing is.

"If we go with a 0.30 and they're above that," Mr. Huston said, "the question is, can we say that person was greater than a 0.30 without giving a data point?"

Dauphin County District Attorney Edward M. Marsico Jr. said he doubts there will be a flurry of litigation from people who were already found or pleaded guilty. But he acknowledged the impact already being felt on handling future cases.

"If the Superior Court upholds Judge Clark's opinion, then certainly for the Intoxilyzer itself ... that will present a huge problem in prosecuting the highest-tier DUI cases," he said.

The alternative is to use only blood samples -- something some police officers prefer because they cast a wider net than breath tests by revealing the presence of drugs as well as alcohol.

Mr. Marsico already is planning his appellate strategy. He plans to argue that even if the breath test is considered unreliable at certain levels of intoxication that does not necessarily warrant dismissal of a DUI case.

"We think it goes more to the weight of the evidence instead of the admissibility of the evidence," Mr. Marsico said.

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Jonathan D. Silver: or 412-263-1962.


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