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Commonwealth v. Brigidi

October 19, 2010

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
MARC P. BRIGIDI, APPELLEE



Appeal from the Order of the Superior Court at No. 910 EDA 2008 entered on 7/7/09 vacating and remanding the order of Montgomery County Court of Common Pleas, Criminal Division at No. CP-46-SA-: 1118-2007 dated 2/29/08.

The opinion of the court was delivered by: Mr. Justice Saylor

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: June 15, 2010

OPINION

The question presented is whether restrictions on the admissibility of pre-arrest alcohol screening reposited in the Vehicle Code pertain in prosecutions under the Crimes Code.

In May 2007, Appellee received a citation for the summary offense of consuming alcoholic beverages while under the age of twenty-one. See 18 Pa.C.S. §6308. He was found guilty in a magisterial district court and lodged an appeal in the common pleas court.

At the ensuing de novo bench trial, the Commonwealth presented the testimony of the arresting officer, who explained that he was tasked to investigate an underage drinking party, at which he found Appellee among those present. The officer indicated that he administered alcohol testing using an electronic pre-arrest breath testing device known as an Alco-Sensor.*fn1 In response to Appellee's objection to admission of the test result, the Commonwealth asserted that such machine was an approved device pursuant to a Department of Health notice. See N.T., Feb. 21, 2008, at 9-10 (citing Notice, Prearrest Breath Testing Devices, 35 Pa.B. 2694 (Dep't of Health April 30, 2005)).*fn2 Upon continuing objections, the prosecutor adduced some additional foundation, as follows:

Q: Officer . . ., have you had any training with regard to using the Alco-Sensor?

[A:] There has been training. I didn't attend a school. When you receive the PBTs new, we used them. We work out how to use it, so on and so forth. There are directions in the box and we used it.

Q: And during your eight years of employment with Upper Dublin, have you had occasion to use the Alco-Sensor at other times?

A: Yes. . . . It's a commonly used tool in our profession.

Q: And as an Officer with Upper Dublin, are you required to attend any type of updates or certification on your police work in general each year.

A: Yes.

N.T., Feb. 21, 2008, ...


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