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COMMONWEALTH PENNSYLVANIA v. JAMES LESLIE COOK (04/18/80)

filed: April 18, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES LESLIE COOK, APPELLANT



No. 30 October Term, 1979

COUNSEL

Paul J. Dellasega, Harrisburgh, for appellant.

Edgar B. Bayley, District Attorney, Carlisle, for Commonwealth, appellee.

Cercone, President Judge, and Wieand and Louik, JJ.*fn* Cercone, President Judge, and Wieand, J., concurred in the result.

[ 277 Pa. Super. Page 153]

This is an appeal from a Judgment of Sentence of a conviction of the defendant for operating a vehicle while under the influence of alcohol. Appellant was involved in an automobile accident on November 23, 1977. When the

[ 277 Pa. Super. Page 154]

    patrolman arrived at the scene of the accident, he observed that Appellant had received injuries in a collision, and Appellant was taken by ambulance to a hospital. The hospital personnel conducted a blood alcohol test at the direction of the patrolman. The test was performed on an Automatic Clinical Analyzer (ACA Machine), and the results showed a .217. Appellant was then placed under arrest for driving under the influence of alcohol. Prior to the trial, Appellant sought to suppress the results of the ACA test on the ground that the machinery used was not approved by the Department of Health at the time of testing. The Motor Vehicle Code of June 17, 1976, P.L. 162, effective July 1, 1977, provided in § 1547(c) as follows:

" Test results admissible in evidence. -

In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle while under the influence of alcohol, the amount of alcohol in the defendant's blood, as shown by a chemical analysis of his breath or blood, which analysis was conducted with equipment of a type approved by the Department of Health and operated by qualified personnel, shall be admissible in evidence."

The machine used in the instant case had been in use in the hospital at least since 1974, and was subsequently approved in accordance with regulations issued in January 1978 by the Department of Health. The recent case of Commonwealth v. Boerner, 268 Pa. Super. 168, 407 A.2d 883 is analogous to the instant case. In the Boerner case, it was contended that the breathalyzer machine used on the date of the test had not yet obtained Department of Health certification, but was certified subsequently by the Department of Health. The Court there held that it was error to have admitted that breathalyzer test, but held further that such error was harmless in light of the evidence of that appellant's intoxication. The Court said:

"Secondly appellant argues that the breathalyzer machine had, on the date of his test, not yet obtained Department

[ 277 Pa. Super. Page 155]

    of Health certification. Act of 1976, June 17, supra, 75 Pa.C.S. § 1547(c). This statute mandating certification became effective one day prior to the instant case. The particular machine used had been approved by the Department of Transportation, for use under the former legislation. Act of 1959, April 29, P.L. 58, 75 P.S. § 624.1. And it received current Health Department certification subsequent to the instant use. Thus it is clear that it was error to have admitted the ...


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