About a month ago, the Superior Court reversed the trial court’s decision in Commonwealth v. Schildt. In Schildt, the trial court held that BAC results from the Intoxilyzer 5000EN breathalyzer are inadmissible for readings outside of the .05-.15 range, and the Superior Court reversed that decision on procedural grounds. Just a few days ago Schildt filed a Petition for Allowance of Appeal to have the decision reviewed by the Supreme Court of Pennsylvania. The questions presented before the Supreme Court are:
“Where a defendant proves a legitimate deficiency in breath-alcohol testing devices’ accuracy and calibration: (1) As [the Supreme Court of Pennsylvania] posited in Dyarman, what is a defendant’s pre-trial remedy?; and (2) given the evidence in [the] record, and giving due deference to the trial court’s factual findings, can the Commonwealth provide that there was any evidence of 3802(c)’s essential element, that the breath test result was above a 0.16% by the way it currently chooses to check the calibration of its breath-alcohol breath testing machines?”
We will provide updates as this case progresses, including when/if the Supreme Court grants allowance of appeal. The Court generally will only hear appeals in cases of first impression or cases involving different decisions from different lower courts. We hope the Supreme Court will take up this case as the substantive issues pertaining to the validity of breath testing devices in Pennsylvania DUI cases were not addressed by the Superior Court. Guidance in this area is sorely needed.