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COMMONWEALTH PENNSYLVANIA v. MARLIN E. SESLER (11/19/86)

filed: November 19, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MARLIN E. SESLER, JR., APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Butler County, No. 602 of 1984, Book 79, Page 135.

COUNSEL

Alexander H. Lindsay, Jr., Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.

Rowley, Wieand and Del Sole, JJ. Del Sole, J., files a concurring and dissenting opinion.

Author: Wieand

[ 358 Pa. Super. Page 584]

Marlin E. Sesler, Jr. was tried by jury and was found guilty of operating a vehicle while under the influence of alcohol*fn1 and operating a vehicle with a blood alcohol content in excess of .10 percent.*fn2 He was also found guilty by the court of speeding, a summary offense. On direct appeal, Sesler argues that the results of the intoxilyzer test should not have been received into evidence because the equipment had not been calibrated as required by statute. We reject this argument and affirm the judgment of sentence. However, the fine for speeding will be modified to comply with the statutory mandate.

Sesler was arrested and an intoxilyzer test was administered on May 26, 1984. It measured the alcohol in Sesler's blood at .18 percent. At an evidentiary hearing to determine the admissibility of the test results, the evidence showed that the police had used a Model 4011-AS. This was an approved device. It had been tested and found accurate on May 9, 1984. The equipment had been calibrated permanently at the factory. The qualifications of the officer using the equipment to administer the test were not challenged. Sesler argued that the results of the test were inadmissible because the Model 4011-AS had not been calibrated pursuant to regulations of the Departments of Health and Transportation as required by statute. The trial court rejected Sesler's argument, and the test results were received in evidence. On appeal, Sesler renews his argument

[ 358 Pa. Super. Page 585]

    that the test results were inadmissible because the intoxilyzer had not been calibrated. It is undisputed that at the time when the test was conducted, regulations with respect to calibration had not been adopted by the Departments of Health and Transportation.

"The technique of testing breath samples for blood alcohol content has general acceptance in the scientific community, and thus meets the test for admissibility of scientific evidence . . . ." See: United States v. Smith, 776 F.2d 892, 898 (10th Cir.1985). The failure to "calibrate" the instrument, if relevant to attack the weight of test results, does not render those results inadmissible. See: United States v. Smith, supra; United States v. Benally, 756 F.2d 773 (10th Cir.1985).

In Pennsylvania, the legislature has established by statute that the amount of alcohol in a person's blood, as shown by chemical testing of the person's breath, is admissible in evidence if the tests "were conducted by qualified persons using approved equipment." 75 Pa.C.S. § 1547(c). See also: Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986). The intoxilyzer used to measure the alcoholic content of appellant's blood was an approved device, and the qualifications of the person using the equipment were not challenged.

Appellant contends that the results of tests "conducted by qualified persons using approved equipment" are nevertheless inadmissible unless the equipment "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." 75 Pa.C.S. § 1547(c)(1). On the date of appellant's arrest, the Departments of Health and Transportation had by regulations established the time and manner for testing devices for accuracy. On that date, however, the Departments had not adopted ...


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