New Court Ruling Invalidates Breathalyzer Device in Pennsylvania

Filed under: DUI by Contributor @ January 2, 2013

In a landmark decision Pennsylvania Court of Common Pleas Judge Lawrence Clark ruled that blood alcohol concentration readings from the widely-used Intoxilyzer 5000EN breathalyzer machine are not accurate above a BAC of .15% or below a BAC of .05%.  Furthermore, any readings from any machine manufactured by CMI, Inc.  are likely inadmissible based upon the fact that CMI’s own expert testified that they produce their own simulator solutions in house when Pennsylvania state regulations would require the solution to be manufactured by an independent company.  This case is persuasive precedent for the entire state of Pennsylvania, but is only binding precedent in Dauphin County (Commonwealth v. Schildt).

There are literally thousands of DUI cases across the state of Pennsylvania that may be affected by this ruling. The eligible cases are ones that are currently pending, or cases that resulted in a plea bargain or conviction within the past 15 months involving a police department that used a breathalyzer.  If District Attorney Ed Marsico appeals Clark’s ruling and it is upheld by a higher court, then the decision would become binding precedent for the entire state of Pennsylvania.  If you were charged with DUI based on a breathalyzer result from anywhere in the state you should make sure you discuss the need to preserve this issue with your attorney.  This case could potentially result in thousands of DUI convictions statewide being reversed, but the best results are likely to be reserved for those who raise this issue in a timely fashion.   If you have been charged with driving under the influence, contact a DUI attorney at Fairlie & Lippy today.


  1. Mark says:

    Who decided on the 15 month grandfather clause, so to speak? Why not all cases that meet the criteria, no matter when the conviction occurred?

  2. The fifteen months we referenced is derived from the time limit to file a PCRA petition, which would probably be the latest mechanism by which you might get relief for this issue. You could try coram nobis beyond that window, but that may not be cost-effective given the lower chance of success.

  3. jason says:

    Did the superior court make a ruling on the breathalyzer? I cant find anything on the web site, it was there before. Comm vs. Schildt.

  4. Yes, there is an article in the most recent section of our blog about a Superior Court decision overturning Schildt. The Court did not rule that the breathalyzer had been properly calibrated, but instead ruled that the habeas mechanism of seeking relief was not proper, leaving the issue of whether the breathalyzer was properly calibrated for another day.

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