A blog of the Philadelphia Bar Association’s Criminal Justice Section

PA FlagBy Burt Rose

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The Superior Court of Pennsylvania has issued a decision in the case of COMMONWEALTH of Pennsylvania v. Daniel Eugene LANDIS, II, Appellant, 2108 MDA 2012 (April 8, 2014), an appeal from the Court of Common Pleas of Juniata County, Judge Kenneth A. Mummah, Criminal Division, CP–34–CR–0000167–2010. The Panel was composed of Judges BENDERWECHT, and FITZGERALD, who wrote the Opinion. There was no dissent.

 

The Appellant appealed from a judgment of sentence entered in the Juniata County Court of Common Pleas after a jury found him guilty of, inter alia, DUI-highest rate of alcohol. Appellant claimed that he was entitled to a new trial because the finding that his blood-alcohol level was over .16% within two hours of driving was against the weight of the evidence. The Panel agreed and ruled that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol because the blood-alcohol test result of .164%, which was relied on by the Commonwealth, was subject to a 10% margin of error and there was no further evidence to sustain the jury’s finding that his blood alcohol level was .16% or above within two hours of driving.

 

Section 3802(c) of the Motor Vehicle Code provides that: An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

 

The Superior Court agreed that the jury’s verdict on the count of DUI-highest rate of alcohol was against the weight of the evidence. The evidence that his blood-alcohol level was .164% was unreliable because the medical technician only took one sample of blood and ran only one test. Moreover, the result from an Avid Axsym machine was less accurate than a gaschromatography test, and the evidence at trial established a 10% margin of error in the results from the Avid Axsym machine.

 

The trial record did not contain a reasoned basis for accepting the specific reading of .164% as either accurate or precise. There was no support for a finding that the reading registered by the Avid Axsym machine was any more reliable than the possible blood-alcohol levels within the 10% margin of error. Moreover, since there was no direct or circumstantial evidence regarding the possible applications of the 10% margin of error, the trial evidence required the jury to speculate that Appellant’s actual blood alcohol content was .16% or higher within two hours of driving. Therefore, the Panel held that the Appellant was entitled to a new trial on the count of DUI—highest rate of alcohol.

 

The attorney for the Appellant was Shawn Michael Dorward, of the McShane Firm, Harrisburg, PA.

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