In a recent decision, Dauphin County Judge Lawrence F. Clark, Jr., held that results from the Intoxilyzer 5000EN breathilizer machine were not scientifically reliable and thus inadmissible against defendants in certain DUI cases. This ruling will affect pending DUI cases in Dauphin County, as well as many recent convictions. Anyone with a pending or recent DUI should contact an attorney immediately to discuss their options.
The Intoxilyzer 5000EN is commonly used by law enforcement to determine an individual’s blood alcohol content (BAC) by testing a sample of his/her breath. After listening to three experts from the defense, the Court was convinced that results from these machines are highly questionable for several reasons. First, it was admitted by the Commonwealth’s witness that the manufacturer of these machines do not properly follow Pennsylvania regulations. These regulations require the manufacturer to have a laboratory, independent of the manufacturer, certify the device based on a gas chromatographic analysis. A defense expert testified that without an independent laboratory, the calibrations could be wrong, which would lead to inaccurate results. Secondly, the Court found that the initial calibration of the machines, conducted by the manufacturer, is done incorrectly.
Lastly, and most significantly, the Court held that results from this machine cannot be used to prove BAC over .15 percent beyond a reasonable doubt. When the device is calibrated in the field, it is done so at levels of .05 percent, .10 percent, and .15 percent. The Court, relying on defense expert testimony, reasoned that there is no data to prove that the device works above .15 percent or below .05 percent. Moreover, witnesses from both the defense and Commonwealth acknowledged that at some point the linear accuracy of the device would “fall off” and the reading would be inaccurate. Without testing the device over the .15 percent, there is no way to know with scientific certainty where the “fall off” point would be. Therefore the Court held that it could not be proven beyond a reasonable doubt that a defendant’s BAC is over .15 percent, as measured by these machines.
This ruling is significant in that it eliminates evidence that could be used to impose the most serious penalties under the DUI statute. In Pennsylvania, a driver whose BAC is .16 or higher may be charged with Driving After Imbibing at the highest rate under Title 75, Section 3802(c). A conviction under that section carries the harshest fines and penalties, including mandatory jail time. While this ruling currently only affects Dauphin County, it could ultimately affect all of Pennsylvania after the District Attorney appeals this case to the Superior Court.