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COMMONWEALTH PENNSYLVANIA v. RICHARD WILLIAMSON (09/02/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 2, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD WILLIAMSON, APPELLANT

Appeal from the Order dated April 24, 1985, from the Judgment of Sentence entered June 12, 1985, in the Court of Common Pleas, Clearfield County, at No. 84-349 CRA, Criminal Div.

COUNSEL

Leo M. Kiscaden, Brockway, for appellant.

Rowley, Wieand and Del Sole, JJ. Rowley, J., dissented. Wieand, J., concurs in the result.

Author: Del Sole

[ 356 Pa. Super. Page 398]

APPEAL AT 00875 PITTSBURGH 1985

The sole issue presented by Appellant for our consideration is whether the trial court erred in admitting evidence of Appellant's blood alcohol content derived from an intoxilyzer test.

Appellant objects to the admission of this evidence on the grounds that at the time the test was administered to him the Departments of Health and Transportation had not promulgated regulations concerning calibration as required by statute; and, because of the lack of regulations, the equipment used was not calibrated prior to Appellant's test.

Appellant was tested on an intoxilyzer Model 4011-AS on April 9, 1984. As stated by Appellant, at that time the Departments of Health and Transportation had not created regulations for calibration of breath testing equipment. Some nine months later such regulations were created. With regard to the calibration of equipment they provide:

Type A alcohol breath test equipment shall be calibrated annually within 1 year of using the breath test equipment to perform an actual alcohol breath test.

67 Pa.Code § 77.26

Appellant contends the results in his case are inadmissible because the intoxilyzer was not calibrated "before the test at issue". Appellant's Brief at 6. The regulations outlined above do not require the calibration testing to be performed 1 year prior to the actual alcohol breath test,

[ 356 Pa. Super. Page 399]

    but within one year of the test.*fn1 This provision is in clear contrast with the requirements for accuracy inspections which state:

An accuracy inspection test shall be conducted on Type A alcohol breath test equipment within 30 days prior to using the breath test equipment to perform an actual alcohol breath test.

67 Pa.Code § 77.25

The intoxilyzer used in this case was calibrated within 1 year of the test performed on Appellant. At the suppression hearing the testing officer was questioned by Appellant's counsel. The officer testified the machine was calibrated on January 5, 1985, following the procedures set forth in the guidelines issued by the Departments of Health and Transportation. (N.T. 3-15-85 at 6.)

Since the intoxilyzer was calibrated within one year of the test performed on Appellant in accordance with the regulations developed by the Departments of Health and Transportation, and as required by statute, 75 Pa.C.S.A. § 1547(c)(1), Appellant is not entitled to the relief requested.

APPEAL AT 00679 PITTSBURGH 1985

The appeal at number 00679 Pittsburgh 1985 is quashed. This appeal was taken from the denial of post-verdict motions, therefore, the trial court had the authority to disregard the filing of the notice of appeal from this interlocutory order and proceed to sentencing. See: Pa.R.A.P., Rules 301, 1701(b)(6), 42 Pa.C.S.A.; Commonwealth v. Oliver, 309 Pa. Super. 152, 454 A.2d 1128 (1983).

Appeal at No. 00679 Pittsburgh 1985, quashed.

Appeal at No. 00875 Pittsburgh 1985, affirmed.

Disposition

Appeal at No. 00679 Pittsburgh 1985, quashed.

Appeal at No. 00875 Pittsburgh 1985, affirmed.


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