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KENNETH D. BALDINGER v. COMMONWEALTH PENNSYLVANIA (10/29/84)

decided: October 29, 1984.

KENNETH D. BALDINGER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, H. ARNOLD MULLER, M.D., IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction in case of Kenneth D. Baldinger v. The Commonwealth of Pennsylvania, H. Arnold Muller, M.D., in Official Capacity as Secretary of the Department of Health of the Commonwealth of Pennsylvania, and Thomas Larson, in his capacity as Secretary of the Department of Transportation of the Commonwealth of Pennsylvania.

COUNSEL

Thomas J. Schuchert, with him, Shirley Novak, Thomas Schuchert & Associates, and Martin W. Sheerer, for petitioner.

James J. Kutz, Deputy Attorney General, with him, Christine Dutton, Assistant Counsel, Allen C. Warshaw, Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges MacPhail, Colins and Blatt, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Colins.

Author: Macphail

[ 85 Pa. Commw. Page 612]

Kenneth D. Baldinger (Petitioner) has filed a class action complaint in equity in our original jurisdiction seeking, inter alia, to enjoin Respondents*fn1 from utilizing the Breathalyzer 1000 until Respondents have complied with statutory requirements which would assure the accuracy of that equipment. The action is also brought pursuant to Section 1983 of the Federal Civil Rights Act, 42 U.S.C. § 1983 (1982). Respondents have filed preliminary objections.

Petitioner avers that on May 7, 1983, he was arrested for the offense of driving under the influence of alcohol.*fn2 At the time of the arrest Petitioner consented to and was administered a breath test for the purpose of determining the concentration of alcohol in his blood. The testing device used was the Breathalyzer 1000 manufactured by Smith & Wesson, Inc. The blood alcohol content of Petitioner as measured by the Breathalyzer 1000 was .13%.*fn3 This result is admissible in evidence.*fn4

Petitioner further avers that the susceptibility of the Breathalyzer 1000 to radio frequency interference

[ 85 Pa. Commw. Page 613]

(RFI) renders results obtained from use of the machine invalid unless appropriate precautionary measures are taken to lessen this susceptibility to RFI. On September 10, 1982, Smith & Wesson, Inc. distributed an advisory to users of the Breathalyzer 1000 acknowledging the machine's susceptibility to RFI and setting forth methods by which the susceptibility of a given machine may be determined. A test report submitted by the National Bureau of Standards to the National Highway Traffic Safety Administration dated May 25, 1983, confirmed that the Breathalyzer 1000 is susceptible to RFI. The effect of RFI varies from machine to machine depending upon the conditions of use.

The responsibility of the Departments of Health and Transportation in regard to chemical testing of the breath of a person charged with a violation of Section 3731 of the Vehicle Code is set forth in Section 1547(c)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(c)(1), which provides in pertinent part as follows:

Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments (sic) of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation. . . . A certificate or log showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.

[ 85 Pa. Commw. Page 614]

Petitioner avers that the Departments of Health and Transportation have failed to comply with this mandate. Specifically, regulations to ensure the accuracy of breath testing devices do not exist and no breath machines used for evidentiary purposes within the Commonwealth have ever been tested for accuracy or electromagnetic interference by the Departments or any other agency of the Commonwealth. Calibration of the breath testing devices is performed by a member of the police force using the machine or by maintenance personnel of another government agency. Breathalyzer 1000 devices are not regularly checked for RFI.

As a result of the above circumstances, Petitioner avers that RFI causes the Breathalyzer 1000 to produce results which lack reliability, are incorrect, and have and will result in wrongfully subjecting Petitioner to criminal process and various other detrimental occurrences.

Petitioner brings this action on behalf of a class which includes all persons (1) who have been convicted through the use of the results of Breathalyzer 1000 testing (2) who are presently undergoing criminal prosecution which includes use of the results of Breathalyzer 1000 testing and (3) who may in the future be subject to criminal prosecution based upon the results of Breathalyzer 1000 testing. He seeks class certification under Pa. R.C.P. No. 1702.

Respondents raise five preliminary objections. For the purpose of ruling on these preliminary objections Petitioner's well and clearly pleaded facts as well as inferences fairly deducible therefrom are accepted as true. Ezy Parks, Inc. ...


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