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COMMONWEALTH v. HARTMAN. (07/21/55)

July 21, 1955

COMMONWEALTH, APPELLANT,
v.
HARTMAN.



Appeal, No. 136, Oct. T., 1955, from order of Court of Quarter Sessions of Berks County at No. 82, March Sessions, 1954, in case of Commonwealth of Pennsylvania v. Albert D. Hartman. Order reversed. Indictment charging defendant with operating a motor vehicle while under the influence of intoxicating liquor. Before HESS, J. Verdict of guilty; defendant's motion for new trial granted. Commonwealth appealed.

COUNSEL

Edward Youngerman, Asst. District Attorney, with him Henry M. Koch, District Attorney, for appellant.

Joseph E. DeSantis, with him Clarence C. Mendelsohn, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Hirt

[ 179 Pa. Super. Page 136]

OPINION BY HIRT, J.

The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. The Commonwealth has appealed from an order of the lower court granting a new trial.

The defendant was involved in an intersection accident in the City of Reading at 3:50 p.m. on January 14, 1954. Although it had stopped snowing and the temperature was above freezing, the streets were icy. Defendant's car skidded about 20 feet on the slippery pavement into another car approaching on the intersecting street. One of the police officers, who arrived at the scene immediately after the accident testified that he detected the odor of "beer or some alcoholic brew" on defendant's breath. A second police officer who examined defendant at the City Hall, where he had been taken after his arrest, testified that he detected a "moderate odor of alcohol" on the defendant. After questioning the defendant and subjecting him to a number of objective tests these officers concluded that defendant was a proper subject for the so-called "Forrester Intoximeter Test" to determine whether the alcohol content of his blood indicated that he was unfit for driving an automobile. The defendant consented to taking the test. The results of the test were admitted in evidence by the trial judge principally on the testimony of Dr. Clarence Muehlberger, a chemist and toxicologist who from a wide experience in the use of the Intoximeter stated that the result is reliable if the test is properly taken. There is nothing in this record questioning the procedure in administering the test in the present case nor the validity of the ultimate finding. A police officer who had adequate instruction in the use of the device administered the test and then delivered the cannister to C.P. Ludwig, a biochemistry technologist at St. Joseph's Hospital in Reading. He

[ 179 Pa. Super. Page 137]

    was the same technologist who previously had prepared the device for the taking of a test. From an analysis based upon the amount of carbon dioxide picked up from the defendant's breath in a tube containing ascarite, and a quantitative determination of the alcohol entrapped in a tube containing magnesium perchlorate this witness testified that the alcoholic content of defendant's blood then was .20 percent.

The undisputed evidence is that a person with .15% or more alcohol in the blood is under the influence of intoxicating liquor. And the jury in this case were justified in finding from Dr. Muehlberger's testimony that at the time when the intoximeter test was applied the defendant's "mental and physical capabilities [were] impaired in those things which are necessary in the safe operation of a motor vehicle." We have no doubt as to the admissibility of the testimony based upon the Intoximeter test. In Com. v. Harold Roller, 100 Pa. Superior Ct. 125, we quoted the language of a distinguished Judge*fn1 to this effect: "'all knowledge purveys to the law, and from the domains of every art and science it draws the weapons by which it discovers truth and confounds error. The still photograph, X-ray, the dictograph, the finger print, the phonograph, the microscope, and even the bloodhound, have all been used and received by judicial tribunals in the proof of matters depending upon evidence; and, in all such cases, the preliminary investigation was directed to the proper authentication of the evidence, and not merely to the question whether imposture might be successful.'" We have repeatedly adhered to the principle in accepting new and for the most part mechanical devices as aids in the search for truth and right answers

[ 179 Pa. Super. Page 138]

    to factual issues: Cf. Com. v. Albright, 101 Pa. Superior Ct. 317, 326; Com. v. Clark, 123 Pa. Superior Ct. 277, 285, 187 A. 237; DeBattiste v. Laudadio & Son et ...


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