DUI Case in Pennsylvania Tossed out Due to Breath Test Technicality

In Luzerne County Court of Common Pleas in Wilkes-Barre, Pennsylvania, a judge ruled that an officer at the county’s DUI Processing Center was not allowed to testify about a driver’s blood-alcohol content (BAC) because the officer was not certified to operate a certain Breathalyzer. This is according to a story in The Times-Leader of northeastern Pennsylvania in October, 2005.

The suspect, David Kresge, drove a car into a building in November, 2004. The officer, David Miers, used a Breathalyzer, a model called the Intoxilyzer 5000EN, on Kresge and determined a BAC of 0.21, far above the national legal limit of 0.08. Kresge’s attorney, Joseph Albert, argued that Miers was certified to use the Intoxilyzer 5000, not the 5000EN. The judge, Patrick Toole, agreed, and dismissed the case.

Frank Martin, the coordinator for the DUI center, said all the processing officers are certified to use the Intoxilyzer 5000, claiming that the certifications make no distinctions among model numbers. He said he contacted state officials when the EN model started being used eight years prior, and the state did not require any additional training or certification to operate the new model.

Martin added that there is no difference in how officers operate the machines. “It’s like buying a Chevrolet Impala,” Martin said. “You could get a four-door, you could get a two-door. It’s not going to make the car run any different.”

Kresge was, however, convicted on another drunk-driving charge where BAC was not relevant. However, because of the substantially lower punishment due to the other case being dismissed, prosecutors worry that this ruling could damage other drunk-driving prosecutions because DUI defense attorneys will subpoena more Breathalyzer test data.

Since the state’s departments of health and transportation says that officers must be trained to operate a “particular” machine, arguments will arise over the definition of “particular,” says defense attorney James Haggerty. “Does it mean the Intoxilyzer 5000, all versions, or does it mean the Intoxilyzer 5000 version one, version two, or version nine?”

“I think that any lawyer that has a DUI case will need to carefully examine whether the DUI examiner is certified for the particular machine,” said Haggerty.

Haggerty, however, does not fault the center for the defense attorney’s loophole. He cited the “complexity of the rules” for any errors that may have happened at the center. He also praised the center for helping policing efforts and saving money and time.

If you or someone you know is facing a criminal conviction whether Breathalyzer evidence is relevant or not, contact a qualified DUI attorney at once.

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