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COMMONWEALTH PENNSYLVANIA v. HERBERT HESS (01/10/86)

filed: January 10, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
HERBERT HESS, APPELLANT



No. 00058 HARRISBURG 1984, Appeal from the Judgment of Sentence of December 28, 1983, in the Court of Common Pleas of Huntingdon County, Criminal Division, at No. 83-75 C.A.

COUNSEL

Robert B. Stewart, III, Huntingdon, for appellant.

Stewart L. Kurtz, District Attorney, Huntingdon, for Com., appellee.

Spaeth, President Judge, and Beck and Montgomery, JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Beck

[ 349 Pa. Super. Page 441]

This is an appeal from a judgment of sentence for driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1). We affirm.

Two policemen observed appellant swerve his pickup truck into an oncoming lane of traffic. Appellant returned to the proper lane, but again swerved into the opposite lane, nearly striking an approaching vehicle. The policemen radioed the nearby State Police barracks and Trooper Kuny responded. The trooper drove his car behind appellant's and noticed appellant's car wandering over the road.

Trooper Kuny pulled appellant to the side of the road. The trooper smelled alcohol and noticed that appellant's eyes were bloodshot. Appellant failed two field sobriety tests. Appellant could not walk straight on a "fog line" and appellant could not count slowly on his fingers. Appellant was then placed under arrest for driving under the influence of alcohol.

Appellant claims that the court erred in not suppressing the results of a breathalyzer test taken with the Intoxilyzer Model 4011-AS. He asserts that at the time the test was administered the two statutory preconditions for admission into evidence of the test results were not satisfied. 75

[ 349 Pa. Super. Page 442]

Pa.C.S. § 1547(c)(1). In order for the results to be admitted into evidence the testing device has to be approved for usage by the Department of Health and the procedures for administering the test have to be promulgated jointly by the departments of Health and Transportation.*fn1

The narrow question is whether the two preconditions of subsection 1547(c)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(c)(1) (Supp.1985) (amending 75 Pa.C.S. § 1547(c)), must be satisfied prior to administration of the test or prior to trial.

The answer becomes clear when we examine the General Assembly's reasons for enacting the preconditions. The preconditions were established to assure that the results of the test were sufficiently reliable to have probative value. The preconditions involve the integrity of the device itself and the procedure for using it. It cannot be said that the reliability of the test result is vitiated if approval of the device and the procedures comes after the administration of the test. Whether or not the test has probative value is important at ...


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