Appeal, No. 326, Oct. T., 1963, from judgment of Court of Quarter Sessions of Chester County, March T., 1962, No. 238, in case of Commonwealth v. Earl P. Ayers. Judgment affirmed.
G. Clinton Fogwell, Jr., with him Melva L. Mueller, and Reilly and Fogwell, for appellant.
Norman J. Pine, Assistant District Attorney, with him Samuel J. Halpren, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (ervin, J., absent).
[ 203 Pa. Super. Page 117]
This is an appeal from the judgment of sentence entered by the Court of Quarter Sessions of Chester County on a jury verdict of guilty of driving while under the influence of intoxicating liquor; and from the denial of the motion for a now trial.
The defendant, Earl P. Ayers, was arrested on May 6, 1962 and charged with driving while under the influence of intoxicating liquor. He was convicted by the jury and sentenced to probation for one and onehalf years, a fine of Three Hundred Dollars and costs of prosecution.
At the trial the Commonwealth introduced testimony concerning the use of an intoximeter test under the Act of 1959, P.L. 58, § 624.1, added 1961, P.L. 918, § 1, 75 PS § 624.1. The Act provides, inter alia, as follows:
"(a) Any person who operates a motor vehicle or tractor in this Commonwealth may be given a chemical test of his breath, for the purpose of determining the alcoholic content of his blood: Provided, That he gives
[ 203 Pa. Super. Page 118]
specific consent thereto and the test is administered by qualified personnel and with equipment approved by the secretary at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor. Qualified personnel means a physician or a police officer who has received training in the use of such equipment in a training program approved by the secretary."
The machine used in this case was an approved device known as a DeForrest intoximeter. The testimony concerning the test was permitted by the court until it was found that the result of the test which was to be delivered for analysis by the State Police Crime Laboratory at Harrisburg, had been in the possession of and mailed by a trooper who was unavailable to testify. Because of this the Commonwealth was unable to complete the chain of evidence so that the court below, on motion of the defendant, struck out all the testimony concerning the intoximeter test and directed the jury to disregard it. At the same time the defendant moved for the withdrawal of a ...