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KENNETH D. BALDINGER v. COMMONWEALTH PENNSYLVANIA ET AL. (05/19/86)

decided: May 19, 1986.

KENNETH D. BALDINGER, PETITIONER
v.
THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction in the case of Kenneth D. Baldinger v. The Commonwealth of Pennsylvania et al.

COUNSEL

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

James J. Kutz, Senior Deputy Attorney General, with him, Andrew S. Gordon, and Allen C. Warshaw, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for respondent, Commonwealth of Pennsylvania.

Christine Dutton, Assistant Counsel, for respondent, Department of Health.

Harold Cramer, Assistant Counsel, with him, Michael J. McCaney, Assistant Counsel, and Spencer A. Manthorpe, Chief Counsel, for respondent, Department of Transportation.

John A. Mihalik, Hummel, James & Mihalik, for respondent, Larry Smith, Chief of Police of Bloomsburg.

Judge Palladino. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 341]

Introduction

This matter comes before the Court following four days of trial on the merits.*fn1 The issue presented is whether the Commonwealth of Pennsylvania shall be permanently enjoined from using the Smith and Wesson Breathalyzer 1000 for evidentiary purposes in any criminal or civil proceeding and from listing it as an approved evidential breath tester. This Petition for Review was filed in 1983; since that time, numerous changes have been made in the regulatory structure. Petitioner, Kenneth D. Baldinger, asserts in his complaint that the Breathalyzer 1000 is susceptible to electromagnetic interference, which causes the instrument "to produce results which lack reliability, are incorrect and have and will result in wrongfully subjecting [Petitioner] to criminal process, expense, possible conviction, fines, imprisonment,

[ 116 Pa. Commw. Page 342]

    loss of license and other penalties, as well as embarrassment and ridicule of the community." Petitioner also asserts that the regulations promulgated since the start of this litigation are insufficient to prevent erroneous results caused by electromagnetic interference.

The current law relating to the offense of driving under the influence of alcohol and chemical testing to determine the alcoholic content in one's blood states:

75 Pa. C. S. § 1547

Chemical testing to determine amount of alcohol or controlled substance

(a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

(c) Test results admissible in evidence. -- In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's

[ 116 Pa. Commw. Page 343]

    blood, as shown by chemical testing of the person's breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.

(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 requirement 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 proceeding in which a violation of this title is charged.

(2) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as 'The Clinical Laboratory Act.'

(d) Presumptions from amount of alcohol. -- if chemical testing of a person's breath, blood or urine shows:

(1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it

[ 116 Pa. Commw. Page 344]

    shall be presumed that the person tested was not under influence of alcohol and the person shall not be charged with any violation under section 3731(a)(1) or (4) (relating to driving under influence of alcohol or controlled substance), or if the person was so charged prior to the test, the charge shall be void ab initio. This fact shall not give rise to any presumption concerning a violation of section 3731(a)(2) or (3).

(2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol.

(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.

75 Pa. C. S. § 3731

Driving under influence of alcohol or controlled substance

(a) Offense defined. -- A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as 'The Controlled Substance, Drug, Device and Cosmetic Act,' to a degree which renders the person incapable of safe driving;

[ 116 Pa. Commw. Page 345]

(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or

(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

Petitioner argues that because Section 3731(a)(4) makes driving with a 0.10% blood alcohol content (BAC) an offense, the instruments used to determine BAC must produce reliable results. If the Breathalyzer 1000 does not produce reliable results, then its use as an evidential breath tester presents a strong likelihood of irreparable harm, in the form of an erroneous conviction under Section 3731(a)(4).

To obtain injunctive relief, a party must establish a clear right to relief, and show that irreparable harm will occur if such relief is not granted. Moyer v. Davis, 67 Pa. Commonwealth Ct. 251, 446 A.2d 1355 (1982) aff'd, 501 Pa. 192, 460 A.2d 754 (1983).

With this in mind, upon consideration of the testimony and other evidence presented,*fn2 this chancellor makes the following:

Findings of Fact

1. Petitioner, Kenneth D. Baldinger, is a resident of Allegheny County, and is a licensed driver in the state of Pennsylvania.

2. On May 7, 1983, Petitioner was charged by the McCandless Township Police with driving under the influence of alcohol, and he was asked to take a breathalyzer test.

[ 116 Pa. Commw. Page 3463]

. At Petitioner's trial on these charges, the results of Petitioner's breathalyzer test were not used.

4. Petitioner was acquitted of the charges.

5. No charges of driving under the influence are currently pending against Petitioner.

6. The Department of Health (DOH) is vested by statute, 75 Pa. C. S. § 1547(c)(1), with the responsibility for selecting the Evidential Breath Testers (EBTs) used in the Commonwealth.

7. Before DOH was assigned this responsibility, the Department of Transportation (DOT) approved EBTs for use in Pennsylvania.

8. The Smith and Wesson Breathalyzer 1000 had been approved for use by DOT before DOH assumed responsibility.

9. DOH relied upon the National Highway Transportation Safety Administration (NHTSA) list of qualified products in reviewing EBTs used in Pennsylvania.

10. The DOH relies on NHTSA's qualified products list for several reasons; including the following:

(a) the federal laboratory which performs the testing on the EBTs is the Transportation Systems Center (TSC) of NHTSA, a laboratory of national reputation which employs individuals whose credentials are reliable; and

(b) given the comprehensiveness of the testing and the design evaluation performed by TSC, it would serve no purpose for DOH to duplicate all of the testing and evaluating which has already been performed by TSC.

11. In 1975, NHTSA, through the TSC, performed a series of tests on eight EBTs for possible inclusion on NHTSA's qualified products list, including a Smith & Wesson Breathalyzer 1000. Exhibit D-7.

12. The testing performed by TSC was comprehensive and included the following: a precision test using a

[ 116 Pa. Commw. Page 347]

    known ethanol vapor concentration; an accuracy test using a known ethanol vapor concentration; a blank test using alcohol-free test subjects; a power line voltage test; an ambient temperature test; a vibration test; and an electrical safety inspection test. In addition, TSC undertook a general examination of each instrument to ensure that the EBT's principle of operation, logic, and circuitry was sound. See Exhibit D-7, N.T. 434-437.

13. The Smith & Wesson Breathalyzer 1000 successfully passed each of the tests to which it was subjected, and based upon its successful passing of each test and TSC's satisfaction that the design and mode of operation were sound, TSC recommended to NHTSA that the device be placed on NHTSA's qualified products list. N.T. 447-448; Exhibit D-7 at Table IV.

14. From the time NHTSA first approved the Breathalyzer 1000 in 1975, Smith & Wesson has implemented some minor modifications to the instrument; the size of the light aperture was reduced, a timing increment was placed on the device's lamp, and a resistor was added to modify any impedance of the photo cell. However, none of these modifications constitutes a change in the design of the unit, although Smith & Wesson, for internal identification purposes, does refer to the two units as 1000A and 1000B. N.T. 334, 496.

15. NHTSA's qualified products list is published to insure that federal funds allocated to the states for purchase of EBTs are used efficiently and are spent on reliable instruments.

16. The Smith and Wesson Breathalyzer 1000 (1000) was approved for use in Pennsylvania by DOH because: 1) the 1000 was listed on NHTSA's qualified products list; and 2) ...


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