No. 205 Harrisburg 1984, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County at No. 1283 CA 1983.
Before Wickersham, Wieand and Del Sole, JJ. Del Sole, J. files a memorandum dissent.
Judgment of sentence affirmed.
DEL SOLE, J. files a memorandum dissent.
I respectfully dissent. I believe that the results of the intoxilyzer test administered to Appellant are inadmissisble since the Commonwealth failed to prove that the device was "calibrated" in accordance with regulations promulgated by the Departments of Health and Transportation.
At the time Appellant was administered the intoxilyzer, there were established provisions for inspecting the "accuracy" of equipment. See: 67 Pa.Code § 77.3-77.6. The officer testified that the device used in this case was tested for "accuracy" in accordance with these regulations. The accuracy inspection was done by conducting five inspection tests using a standard simulator solution designed to give a reading of .100 percent. See: 67 Pa.Code § 77.3. The average deviation from this figure on the inspection tests was .0028, which is within the average allowable deviation. See: 67 Pa.Code § 77.6(2)(ii). From this evidence, it can be concluded that the intoxilyzer was properly tested for "accuracy" according to the regulations. However, the intoxilyzer was never "calibrated".
75 Pa.C.S.A. § 1547 (c) (1) provides:
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments 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. For purposes of breath testing, a qualified person means a person who has fulfilled the training requirements in the use of the equipment in a training program approved by 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 proceedings in which a violation of this title is charged." (Emphasis added)
This provision of the statute mandates creation of, and compliance with the regulations of the Departments of Health and Transportation as a condition precedent to the admissibility of test results. However, the Departments of Health and Transportation had not promulgated testing regulations regarding "calibration" as they had done for "accuracy" at the time Appellant was administered the intoxilyzer.
A test for "calibration" serves a different purpose than a test for "accuracy". The regulations in describing a test for "accuracy" prescribe the use of a standard level of solution (.10 percent). Five vials of this solution must be tested in the device. To establish the intoxilyzer's "accuracy" the same level of alcohol concentration should register. On the other hand, a test for "calibration" would measure graduated levels. Such a procedure would test a range of levels, for example: 0.00 percent, .10 percent and .20 percent. This process would insure the correct value of each scale reading on the instrument, whereas with an "accuracy" test the machine's validity is established at only one particular level. After examining the distinct purpose of each test procedure, it is clearly apparent why the legislature foresaw the need to require both "calibration" and "accuracy" tests before a subject's intoxilyzer results could be deemed accurate. The necessity for such a requirement becomes readily apparent when considering the tremendous significance attributed to intoxilyzer and breathalyzer results in establishing a defendant's guilt or innocence.
I, therefore, find that prior to admitting a defendant's test results into evidence, the breath testing instrument must be both "calibrated" and tested for "accuracy" in accordance with regulations developed by the Departments of Health and Transportation. Inasmuch as the Departments of Health and Transportation had failed to promulgate regulations regarding "calibration", in addition to those already created regarding "accuracy" at the time Appellant was administered the test, I would have no choice but to rule the intoxilyzer results herein inadmissible. Accordingly, I would vacate the Judgment of Sentence, and remand the case for new trial.