Appeal from the Judgment of Sentence of the Court of Common Pleas of Warren County, Criminal Division, at No. 132 of 1988.
James C. Blackman, Warren, for appellant.
Brian E. Chudzik, Asst. Dist. Atty., Warren, for Com., appellee.
Brosky, Popovich and Montgomery, JJ.
[ 388 Pa. Super. Page 302]
At the conclusion of a jury trial, the appellant was convicted of driving under the influence of alcohol or a controlled substance, 75 Pa.C.S.A. § 3731(a)(1). Timely filed post-verdict motions were denied and the appellant was fined and sentenced to forty-eight hours to six months imprisonment. This appeal followed. The sole issue presented is whether the trial court erred when it refused to admit evidence proffered by the defense, namely the results of a blood alcohol test arranged for by the appellant himself. For the reasons which follow, we vacate the judgment of sentence and remand the matter for a new trial.
The appellant was observed operating his vehicle in an unsafe manner by deputies of the Warren County Sheriff's Office. The deputies administered two field sobriety tests which the appellant performed unsatisfactorily. He was arrested for driving under the influence and transported to Warren General Hospital. The appellant refused to submit to a blood test. The appellant was transported back to the Sheriff's Department and eventually released. Following his release, the appellant went back to Warren General
[ 388 Pa. Super. Page 303]
Hospital and requested that a blood alcohol test be performed. This test was performed approximately one hour after the appellant's arrest and revealed a blood alcohol level of 0.074. As noted above, the appellant unsuccessfully sought to introduce this evidence during his case in chief.
The appellant was charged with violating 75 Pa.C.S.A. § 3731(a)(1), and not § 3731(a)(4). Subsection (a)(1) prohibits a person who is "under the influence of alcohol to a degree which renders [them] incapable of safe driving" from driving or operating a motor vehicle. The trial judge sustained the Commonwealth's objection that the proffered evidence was irrelevant because the appellant was not charged with violating § 3731(a)(4), i.e. he was not charged with having any specific blood alcohol level, and because the defense did not have a physiologist present to explain how the blood alcohol content related back to the time the appellant was driving. The trial court found that § 3731(a)(1) was "grounded solely on observations, appearances, odors, et cetera." (Trial Transcript at 27)
The admission of blood alcohol test results is a matter entrusted to the discretion of the trial court. Commonwealth v. Romesburg, 353 Pa. Super. 215, 509 A.2d 413 (1986); Commonwealth v. Kostra, 349 Pa. Super. 89, 502 A.2d 1287 (1985). Therefore, unless we perceive an abuse of that discretion, we will not disturb the trial court's ruling. The party attempting to introduce the results of a blood alcohol test must show by a preponderance of the evidence that the results are admissible. See, Commonwealth v. Baker, 299 Pa. Super. 241, 445 A.2d 544 (1982).
In Commonwealth v. Arizini, 277 Pa. Super. 27, 419 A.2d 643 (1980), this Court held that so long as a blood alcohol test is indicative of a defendant's condition at a relevant time, it is admissible evidence and is subject to attack or contradiction by other competent evidence. In Commonwealth v. Arizini , this Court held that the results of the blood alcohol test, even though taken more than two hours after the ...