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HomeMy WebLinkAboutCP-21-CR-0001966-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1966-2009 : : LARRY L. ZINN, JR. : IN RE: OMNIBUS PRETRIAL MOTION OF THE DEFENDANT BEFORE HESS, P.J. OPINION AND ORDER Pending before the court is the defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence. The defendant contends, specifically, that his arrest for driving under the influence was not supported by probable cause. Pennsylvania State Trooper Tandy Carey observed the defendant operating his vehicle on April 30, 2008, at 9:58 p.m., in West Pennsboro Township, Cumberland County. She observed no erratic driving but did note that the rear tail lights of the truck were not illuminated. She pulled over the defendant’s vehicle. Mr. Zinn was able to produce his driver’s license and other documents without difficulty. Trooper Carey, however, did notice the odor of alcohol and that the defendant’s eyes were glassy and bloodshot. Defendant admitted that he had had “one or two” drinks. The trooper then administered a Preliminary Breath Test (PBT). No standard field sobriety tests were conducted. The PBT yielded a blood/alcohol reading over the legal limit. The defendant was then placed under arrest. Section 1547(k) of the Motor Vehicle Code, 75 Pa.C.S.A. 1547(k) states, in pertinent part, that a police officer “having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may CP-21-CR-1966-2009 on a device approved by require that person prior to arrest to submit to a preliminary breath test the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title.” The Department of Health regularly publishes a list of approved breath testing devices in The Pennsylvania Bulletin. The Commonwealth has taken the position, in this case, that, when testifying about the administration of the PBT, a trooper is not required to establish that it is of a 1 type approved by the Department of Health. We disagree and, instead, are satisfied that, in the event the Commonwealth chooses to make reference to the administration of the PBT, it must establish that the test was conducted on a device approved by the Department of Health. This we deduce from the plain language of the statute. No such proof was adduced in this case. There was no testimony that the PBT device was of a type approved by the Department of Health or approved by anyone else, for that matter. In fact, the trooper appeared to know surprisingly little about the PBT. If the trooper had relied on the PBT result to arrest the defendant in this case, we would be obliged to grant the suppression motion. The trooper, however, additionally testified that she noticed the defendant’s bloodshot and glassy eyes, an odor of alcohol emanating from the defendant, that his speech was slurred, that he was swaying while standing outside the vehicle, and that the defendant had admitted to drinking alcohol prior to driving. It can be argued that this is a close case. We are satisfied, however, that these observations of the trooper, apart from the results of the PBT, 1 The Commonwealth appears to read into the requirement for approval of the preliminary breath testing device an argument by the defendant that it is required to prove that the device is calibrated. The defendant makes no such contention in this case. 2 CP-21-CR-1966-2009 provided “sufficient facts and circumstances to warrant a prudent person to believe that the driver ha[d] been driving under the influence of alcohol ….” Commonwealth v. Angel, 946 A.2d 2 115, 118 (Pa.Super. 2008). ORDER th AND NOW, this 15 day of January, 2010, following hearing, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Michelle H. Sibert, Esquire Sr. Assistant District Attorney Tim M. Barrouk, Esquire For the Defendant :rlm 2 The trooper testified that she based the defendant’s arrest on the “totality of the circumstances.” We give the Commonwealth the benefit of the doubt in interpreting this phrase. Arguably, one of the “circumstances” relied upon was the flawed PBT. 3 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1966-2009 : : LARRY L. ZINN, JR. : IN RE: OMNIBUS PRETRIAL MOTION OF THE DEFENDANT BEFORE HESS, P.J. ORDER th AND NOW, this 15 day of January, 2010, following hearing, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Michelle H. Sibert, Esquire Sr. Assistant District Attorney Tim M. Barrouk, Esquire For the Defendant :rlm