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Commonwealth v. Brugger

Superior Court of Pennsylvania

March 25, 2014

AMY K. BRUGGER, Appellee

Argued October 23, 2013.

As Corrected March 26, 2014.

Appeal from the Order of the Court of Common Pleas, Lebanon County, Criminal Division, No.: CP-38-CR-0000262-2012. Before JONES, J.

Anthony R. Bowers, Assistant District Attorney, Lebanon, for Commonwealth, appellant.

Amy K. Brugger, appellee, pro se.



Page 1027


The Commonwealth appeals from the trial court's December 7, 2012 order. That order denied the Commonwealth's motion in limine requesting a pre-trial hearing on the admissibility of Amy K. Brugger (" Brugger" )'s blood-alcohol content (" BAC" ) test results, which were processed by the Good Samaritan Hospital in Lebanon County, Pennsylvania. Following our review of the record, we are constrained to agree that the trial court abused its discretion in denying the Commonwealth's request for such a hearing. Accordingly, we reverse.

The present case arises against the backdrop of a complicated recent history of BAC testing in Lebanon County. The Lebanon County Court of Common Pleas has labored diligently to resolve the admissibility of Good Samaritan Hospital's BAC testing protocol, which is performed on blood serum rather than whole blood.[1]

Page 1028

This is a difficult question that also has arisen in our Court on several occasions and in various forms.

We begin by reviewing our two most recent opinions concerning supernatant blood testing, decisions which this Court issued in close succession. In Commonwealth v. Haight , 2012 PA Super 149, 50 A.3d 137 (Pa. Super. 2012), we provided the following discussion of the distinction between whole blood and supernatant samples that are separated from whole blood, and explained why the distinction poses problems for establishing the whole-blood BAC necessary to sustain a conviction for most categories of driving under the influence of alcohol (" DUI" )[2] charges:

In Commonwealth v. Renninger , 452 Pa.Super. 421, 682 A.2d 356 (Pa. Super. 1996), we made it clear that supernatant blood alcohol test results are invalid " unless converting evidence is provided to establish the alcohol content of whole blood." We explained that where blood alcohol testing is performed on only a portion of whole blood, such as plasma, serum, or a supernatant sample,[3] it requires conversion to establish the correlative whole blood test results. Id. Recently, in Commonwealth v. Hutchins , 2012 PA Super 44, 42 A.3d 302 (Pa. Super. 2012), appeal denied, 618 Pa. 675, 56 A.3d 396 (Pa. 2012), we expounded on the necessity of whole blood test results as follows:

The general rule for alcohol[-]related DUI is that only tests performed on whole blood will sustain a conviction under 75 Pa.C.S. § 3802. Thus, evidence of blood serum, plasma or supernatant testing, without conversion, will not suffice. The reasoning for this rule rests on the distinction between whole blood and blood serum:

The distinction between whole blood and blood serum is significant. Serum is acquired after a whole blood sample is centrifuged, which separates the blood cells and fibrin, the blood's clotting agent, from the plasma -- the clear liquid i[n] the blood serum. When blood serum is tested the results will show a [BAC] which can range from between 10 to 20 percent higher than a test performed on whole blood. The reason for this is because the denser components of whole blood, the fibrin and corpuscles, have been separated and removed from the whole blood, leaving the less dense serum upon which the alcohol level test is performed. The value of the

Page 1029

[BAC] in the serum is then determined. Because the serum is less dense than whole blood, the weight per volume of the alcohol in the serum will be greater than the weight per volume in the whole blood. Thus, an appropriate conversion factor is required to calculate the corresponding alcohol content in the original whole blood sample.

Hutchins , at 309-10 (citations omitted). See Commonwealth v. Kohlie , 2002 PA Super 325, 811 A.2d 1010, 1013 (Pa. Super. 2002) (holding that, in order to convict a defendant of DUI under Subsection 3802(b), the Commonwealth cannot rely on the blood serum analysis alone; it must introduce evidence of alcohol by weight in terms of whole blood).

Haight , 50 A.3d at 141 (citations modified); see Commonwealth v. Newsome , 2001 PA Super 346, 787 A.2d 1045, 1048-49 (Pa. Super. 2001); Commonwealth v. Michuck , 454 Pa.Super. 594, 686 A.2d 403, 405-06 (Pa. Super. 1996); Commonwealth v. Wanner , 413 Pa.Super. 442, 605 A.2d 805, 808 (Pa. Super. 1992); Commonwealth v. Bartolacci , 409 Pa.Super. 456, 598 A.2d 287, 288 (Pa. Super. 1991).

In Haight , the defendant claimed that a BAC test performed on a supernatant sample was insufficient as a matter of law to convict him of DUI. Based upon Renninger , Haight argued that, because the BAC submitted by the Commonwealth had been measured from a supernatant sample, the Commonwealth was obligated to establish a conversion factor to convert that concentration to its whole-blood equivalent. Id. at 140-42.

The Commonwealth submitted into evidence the expert report of Harry Kamerow, M.D., in which Dr. Kamerow opined that the BAC in the supernatant sample did not differ significantly from the BAC in the whole blood sample. Id. at 142. Dr. Kamerow admitted that clinical chemists had not studied extensively the relationship between ethanol in supernatant and whole blood samples, but maintained that " the community of clinical chemists and toxicologists accept that the ethanol concentration in supernatant is equivalent to the ethanol concentration in whole blood." Id. at 143.

Haight offered the expert testimony of Dr. Joseph Citron to rebut Dr. Kamerow's testimony. Dr. Citron testified that there is no generally accepted " conversion range" for supernatant to whole blood. Id. at 143. However, when questioned further regarding the relationship between ethanol concentrations measured in supernatant samples and the corollary concentrations in whole-blood samples, Dr. Citron opined that a supernatant BAC result of .181% could be converted to a whole-blood BAC of .166%. Id. The lab actually had obtained two results from supernatant testing performed on Haight's supernatant sample, .181% and .174%. Deriving the conversion rate suggested by Dr. Citron, i.e. .181%/.166% (1.09), and applying that ratio to the lower supernatant test result, .174%, the court calculated Haight's whole-blood BAC to be .158%.[4] Id. at 143-44.

We affirmed the decision of the trial court, citing Renninger and Hutchins, supra. The medical technician who performed the BAC test on Haight's serum sample testified that two supernatant samples were tested, returning in BAC readings of .181% and .174%. ...

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