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HomeMy WebLinkAbout97-1781 criminalCOMMONWEALTH Vo REED ATVILLE STARR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1781 CRIMINAL TERM IN RE: MOTION OF DEFENDANT FOR POSTSENTENCE RELIEF OPINION AND ORDER OF COURT Bayley, J., January , 1999:-- On August 11, 1998, following a bench trial, the following verdict was entered against defendant, Reed Atville Starr: I find defendant guilty of Driving Under the Influence, and I specifically find beyond a reasonable doubt the Commonwealth has proven the defendant operated a motor vehicle under the influence of alcohol to a degree that rendered him incapable of safe driving, and he operated a vehicle at a time that he was driving when his blood alcohol content was .10 percent or greater. The charge of Driving on a Roadway, summary offense, is dismissed.1 On October 6, 1998, defendant was sentenced on the driving under the influence count to pay the costs of prosecution, a $300 fine, and undergo imprisonment in the Cumberland County Prison for a term of not less than 48 hours nor more than twenty-three months.2 Defendant remained on bail and filed an optional post-sentence motion pursuant to Pa.R.Crim. P. 1410(B). In that motion he avers that he is entitled to an arrest of judgment or in the alternative a new trial. 1. Defendant was charged and convicted of driving under the influence of alcohol under 75 Pa.C.S. § 3731(a)(1), while incapable of safe driving, and under subsection (a)(4), while the amount of alcohol by weight in his blood was 0.10% or greater. The summary charge that was dismissed was for driving on roadways laned for traffic in violation of 75 Pa.C.S. § 3309. 2. This was a mandatory sentence for a first offense of driving under the influence of alcohol. 75 Pa.C.S. § 3731(e)(1)(i). 97-1781 CRIMINAL TERM The evidence at trial in a light most favorable to the Commonwealth, was as follows.3 On October 15, 1997, at approximately 10:00 p.m., Patrolman William Strayer of the Upper Allen Township Police, while in uniform and on patrol in a marked police car, received a dispatch that someone was driving a red Ford Explorer who was suspected of operating while under the influence. The officer drove to the area indicated and saw a red Ford Explorer with a license plate that matched the number described of in the dispatch. He then followed the vehicle on Lisburn Road in Upper Allen Township, and activated a video camera in his patrol car. Patrolman Strayer testified that on several occasions the vehicle's right side tires straddled the white fog line. On one occasion he saw dust come up from where the tires went off the right edge of the road. On a couple of occasions the vehicle went to the right with the tires on the fog line, one of which was for about 300 feet. After following the vehicle for approximately a mile and a half and seeing another cloud of dust coming from the right when the right side tires went off the road the officer stopped the vehicle. Patrolman Strayer talked to defendant while he was still in the vehicle and detected an odor of alcohol about him. He then had defendant perform field sobriety tests. Defendant failed the walk-and-turn test and was unable to perform the one-leg stand test. The officer was of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving, and arrested him for driving under the influence. The video tape vividly shows defendant's erratic driving 3. Commonwealth v. Reddix, 355 Pa. Super. 514 (1986) -2- 97-1781 CRIMINAL TERM as described by Patrolman Strayer. Defendant was taken to a booking center where breath tests were conducted at 10:54 p.m. on an Intoxilyzer 5000. Defendant's blood alcohol content was .152 percent. While at the booking center, defendant stated that between approximately 6:30 p.m. and 9:30 p.m. he had drunk five or six 12 ounce bottles of beer. DISCUSSION In his post-sentence motion, defendant avers that the "suppression court erred in failing to grant [his] suppression motion; finding its own basis justifying the stop of [his] vehicle which basis was not relied upon by the arresting officer; and, in applying a less stringent standard than probable cause to justify the stop." On May 7, 1998, Guido, J., entered an order, supported by a written opinion, denying defendant's omnibus pretrial motion to suppress evidence. That opinion is incorporated herein in support of our order denying defendant's motion for post-sentence relief based on this alleged error in not granting his omnibus pretrial motion to suppress evidence. Next, defendant avers in his post-sentence motion that '~he trial court erred in failing to dismiss the summary offense of driving on roadways laned for traffic," and there was not "sufficient evidence to sustain defendant's conviction of the offense of roadways laned for traffic." We are baffled by these averments. The summary offense for which defendant was charged under Section 3309 of the Vehicle Code was dismissed by the verdict entered on August 11, 1998.4 4. 75 Pa.C.S. § 3309. -3- 97-1781 CRIMINAL TERM Lastly, defendant avers in his post-sentence motion that "the trial court erred in admitting the results of the breath test where the Commonwealth failed to establish that the testing was conducted in accordance with applicable regulations." The issue arose during the testimony of Cathleen Cook, the certified operator of the Intoxilyzer 5000, when defense counsel objected to the admissibility of the results of the breath test because the Commonwealth did not admit into evidence a manufacturer's certification of the simulator solution used in the instrument,s Citing Commonwealth v. Townsend, 418 Pa. Super. 48 (1992), defendant maintains that the Commonwealth was required to produce the manufacturer's certification of the simulator solution. Townsend does not stand for that proposition. In Townsend, the Superior Court of Pennsylvania held that where the evidence showed that the laboratory which tested the simulator solution was not independent of the manufacturer of the solution, it was reversible error to admit a breath test into evidence because the regulations which govern tests for blood alcohol at 67 Pa. Code Section 77.24, require that the proper concentration of simulator solution be determined by a laboratory independent of the manufacturer.6 The only issue that was raised in the case sub judice was the objection by defendant on three occasions that the Commonwealth did not admit into evidence a manufacturer's certification of the simulator solution.7 In Commonwealth 5. The Commonwealth did admit into evidence a certificate of accuracy of the Intoxilyzer 5000, and a certificate of calibration of the instrument. 6. See also, Commonwealth v. Thill, 417 Pa. Super. 48 (1992). 7. Trial N.T. 27, 30 and 41. -4- 97-1781 CRIMINAL TERM v. Little, 354 Pa. Super. 546 (1986). stated: In Little, the Superior Court of Pennsylvania Appellant next contends that the Commonwealth did not properly admit evidence pertaining to certification of simulator solutionTM and ampoules utilized in the breath testing process. The lower court reasoned that 'since there is no statutory requirement for the solutions which are used to test intoximeters to be certified, the Court also properly admitted the intoximeter results.' Lower ct. op. at 3. To this finding we must agree. Certification of these items is set forth under 67 Pa. Code§ 77.24(d) and (e).TM 'Section 77.24(d) and (e), respectively, clarify that the certifications by the manufacturer of simulator solution and by the manufacturer of ampoules are to be based upon testing by an independent laboratory.' 15 Pa.B. 682 (February 23, 1985). to. Simulator solution--An aqueous standard ethanol solution which, when equilibrated with air in a breath simulator device, produces an air-alcohol mixture that is designed to give a reading of .100% on breath test equipment and can be used to inspect or verify the accuracy of breath test devices. 67 Pa. Code§ 77.3. ~' Section 77.24 of the Code states, in pertinent part: (d) Simulator solution certification. The manufacturer of simulator solution shall certify to the user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis. (e) Ampoule certification. The manufacturer of ampoules utilized in Type A breath testing devices shall certify to the user that its ampoules will produce the intended results when used for actual alcohol breath tests, accuracy inspection tests or for calibrating breath test devices. The certification shall be based on laboratory testing conducted utilizing generally accepted scientific methods sufficient to ensure that the ampoules conform to manufacturer specification. 67 Pa. Code§ 77.24(d), (e). -5- 97-1781 CRIMINAL TERM This regulation requires that the manufacturers of ampoules certify to their users that the ampoules will give the anticipated results when used for alcohol breath tests, accuracy inspection tests or calibrations using breath test equipment, § 77.24(e). Certification of the accuracy of ampoules will insure the integrity of the entire testing procedure .... The Departments believe that the manufacturers of ampoules can most effectively, economically and efficiently analyze their own ampoules and certify their accuracy to their users. 14 Pa.B. 4600-601 (December 22, 1984). We find that the legislature has spoken on this issue and that the Commonwealth does not bear the burden of simulator solution or ampoule certification. The legislature has determined that the manufacturer is in the best position to test and certify its own product through independent testing. Furthermore, we find that the placing of such a product on the market by the manufacturer, after independent testing, to be certification to the user that the product will produce the intended results per statutory requirement. 67 Pa. Code§ 77.24(d), (e). Absent some suggestion that the products were in fact defective, the Commonwealth was under no burden to show certification of the manufacturer's product. (Emphasis added). In the case sub judice, there was no suggestion that the manufactured ampoules of simulator solution were in fact defective. Therefore, under Little, "[t]he Commonwealth was under no burden to show certification of the manufacturer's product." For the foregoing reasons, the following order is entered. AND NOW, this ORDER OF COURT day of January, 1999, the motion of defendant for post-sentence relief, IS DENIED. -6- By the Cou Edgar B. B 97-1781 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth John F. Lyons, Esquire For Defendant :saa -7-