Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal at No. 83046501.
William R. Bernhart, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
Montemuro, Popovich and Watkins, JJ.
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This is an appeal from a judgment of sentence (48 hours to 12 days in jail, plus costs) by the appellant, Susan M. O'Hayer, for driving a vehicle while intoxicated (75 Pa.C.S.A. § 3731(a)(1)) and driving on the wrong side of the roadway (75 Pa.C.S.A. § 3301(a)). We affirm.
The facts are not complicated. The appellant drove her vehicle across a divided highway and struck an on-coming vehicle head-on. As a result thereof, she was taken to a nearby hospital for treatment in the early morning hours of February 4, 1983. Once there, the appellant consented to have her blood tested for alcohol since the accompanying police officer detected a strong odor of liquor on her breath.
The test was administered by Carol Ann Good, the hospital's Medical Laboratory Technologist, under the eye of a supervisor. The results of the test indicated that the appellant had a .25 blood alcohol at the time of the accident. Thereafter, the appellant was arrested and charged with the Motor Vehicle Code violations cited previously.
The issues presented for our review, albeit not dealt with by an appellate court in this Commonwealth, are, as is evident from the appellant's suppression and post-trial motions as well as the suppression court's opinion to us, 1)
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whether the hospital was licensed by the Department of Health to operate a clinical laboratory; 2) whether the person who conducted the blood test met the requirements of the Department of Health; and 3) whether the testing equipment was approved by the Department of Health.*fn1
It is clearly evident from the suppression hearing transcript that the Director of Pathology at Reading Hospital and Medical Center (Dr. I. Donald Stuard) produced a license approved by the Pennsylvania Department of Health for the period when the appellant's blood was removed and tested. (N.T. 50) In fact, at 13 Pennsylvania Bulletin 814 (1983), the hospital is listed as an approved laboratory by the Department of Health for the performance of serium and blood analysis. See Commonwealth v. Gotto, 306 Pa. Super. 434, 442 n. 8, 452 A.2d 803, 807 n. 8 (1982).
Therefore, we conclude that the appellant's contention of lack of licensure on the part of the hospital is meritless. 28 Pa.Code § 5.11.
We next decide whether Carol Ann Good was qualified to conduct a test of the appellant's blood.
We begin by noting that the Department of Health's initial rules, proposed to govern clinical laboratories, defined "Technologist" to mean "a properly qualified individual according to § 5.24(a) of the [proposed] regulations." 3 Pennsylvania Bulletin 1219 (1973). The applicable section read:
§ 5.24. Qualifications of technical personnel.
(a) A technologist performs laboratory tests which require independent judgment and responsibility with minimal
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supervision. He must have a bachelor's degree in the biological or physical sciences; or in a medical technology, and one year of experience in a clinical laboratory acceptable to the Department.
3 Pennsylvania Bulletin 1221 (1973). Thereafter, on March 2, 1974, the Department of Health altered its proposed rules; e.g., "Technologist" was defined as "a properly qualified individual according to § 5.24 of the [proposed] regulations." 4 ...