The Pennsylvania State Police have suspended the practice of offering chemical breath tests in DUI cases. The move came as a result of a judge’s concerns that the State of Pennsylvania failed to have the breathalyzer’s simulator solution tested by an independent outside laboratory. In deciding to suspend breath testing, the state police likely realized that the failure to have the breathalyzer solution tested as required may compromise future drunk driving presentations. The Pennsylvania State Police use the CMH Intoxilyzer 5000EN breath testing device, these devices were previously used in Massachusetts until the Office of Alcohol Testing replaced them with units manufactured by Drager. Currently, the model 9510 is being used by both state and local police in Massachusetts.
Unlike the Drager 9510 which uses a dry gas standard, the intoxilyzers use a liquid solution which must be certified to contain a certain volume of alcohol by weight, expressed as a percentage. If the variation between the simulator solution at the time of the breath test and the pre-established alcohol concentration which is certified at the laboratory at the time the simulator solution is made exceeds a pre-determined standard, the breathalyzer test is invalid as a matter of law and it cannot be introduced in a drunk driving prosecution. In summary, the purpose of the simulator solution is to insure that the breathalyzer readings are accurate by comparing the breathalyzer’s simulator solution reading with the laboratory certification.
Pennsylvania DUI breath testing regulations require that a “gas chromatographic analysis by a laboratory independent of the manufacturer” be performed as a precondition of breath test admissibility. The purpose of this requirement is to insure that the simulator solution was manufactured at the required blood alcohol level. Since this step was not and is not being followed, the PA State Police decided not to use evidentiary breath tests in their drunk driving cases.
Not being able to offer breathalyzer results may make it difficult for the Pennsylvania State Police to obtain DUI convictions. However, as is the case in Massachusetts, they still have the ability to offer a blood test. A driver who is arrested for operating under the influence who refuses to submit to a blood test will have his or her license suspended under the implied consent law, just as if he or she refused a DWI breath test.
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