Harrisburg Law Firm Seeks to have DUI Breath Testing Banned in Pennsylvania

Share Article

On the heels of the ruling in Commonwealth v Schildt, The McShane Firm has motioned to ban breath testing in Pennsylvania. Ten of thousands of cases could be affected.

Justin McShane

Drunk Drivers deserve what they get. But all convictions must be based on science, and not based on science fiction.

In connection with Dauphin County Judge Lawrence F. Clark's ruling last week in the case of Commonwealth v Schildt (Court of Common Pleas, Dauphin County PA, Number 2191 CR 2010), Attorney Justin McShane of The McShane Firm in Harrisburg who was the lead defense counsel in this case, has filed a further motion seeking a ban on all breath testing in the Commonwealth of Pennsylvania. This motion calls for the dismissal of all current DUI cases statewide that involve breath testing evidence as well as re-openeing all such cases that have occurred in the past year and 90-days.

The motion comes after it came to light that the manufacturer of the Intoxilyer 5000EN, CMI Inc. was found by the court to be non-compliant with state regulations. In his ruling in Commonwealth v Schildt, Judge Lawrence F Clark, Jr. writes, "However, notwithstanding any such “verifying” undertakings performed by the manufacturer (CMI) on its own gas chromatograph, the bare FACT remains that the entity (CMI) that is performing the initial calibration of the breath testing device is using a simulator solution which was prepared (and allegedly subjected to some sort of a gas chromatographic analysis) by the same manufacturer and calibrator of that device. The regulatory requirement of a “gas chromatographic analysis by a laboratory independent of the manufacturer” has been blatantly ignored and obviously violated."

He goes on to write that, "Despite CMI’s initial calibration and testing of the Intoxilyzer 5000EN up to a 0.30% ethanol concentration (using an in-house prepared solution that is unverified by a laboratory independent of the manufacturer (CMI), in violation of 67 Pa. Code §77.24(d)), the Intoxilyzer 5000EN is not on-site operationally tested and verified above a .15% ethanol concentration once it leaves the manufacturer."

The result, as the court has noted, is that the reading from the Intoxilyzer 5000EN breath machine is no longer considered reliable. Judge Lawrence F Clark, Jr. writes in his opinion, "As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," wrote in his opinion in the Schildt case.

On the heels of this ruling, Attorney McShane, the lead counsel for Mr. Schildt, has motioned to the court calling for the dismissal of all current DUI cases statewide that involve breath testing evidence from the Intoxilyzer 5000EN, as well as re-openeing all such cases that have occurred in the past year and 90-days.

"I think morally it's the right thing to do. Scientifically, it's the right course of action," McShane said. "I don't want drunk drivers out there more than anyone else. But I don't want false convictions. Drunk drivers deserve what they get. But all convictions must be based on science, and not based on science fiction."

If granted, this motion could affect tens of thousands cases statewide, according to McShane.

About The McShane Firm: Located in Harrisburg, The McShane Firm is Pennsylvania's foremost DUI and criminal defense law firm. Founded in 2004, McShane and his legal team have fought for the citizens of Pennsylvania in cases involving DUI and other criminal matters and achieved positive results for hundreds of clients. The McShane Firm lawyers believe in continually expanding their knowledge of DUI law through continued education, and bring these lessons to the courtroom to defend the citizen accused. For more information, please visit PADUIblog.com and TheTruthAboutForensicScience.com.

Share article on social media or email:

View article via:

Pdf Print

Contact Author

Justin McShane
Follow us on
Visit website

Media

Commonwealth v Schildt Opinion