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.
Leo M. Kiscaden, Brockway, for appellant.
Rowley, Wieand and Del Sole, JJ. Rowley, J., dissented. Wieand, J., concurs in the result.
[ 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.
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 ...