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Commonwealth v. Mickley3/25/2004
ic. Trooper Yunk testified that, in his experience, such crossings are an indicator that a driver may be under the influence of alcohol. N.T., 5/30/02, at 33-34. Thus, we find that the trial court did not err when it determined that, at the time of the initial stop of Appellant's vehicle, Trooper Yunk had reasonable and articulable grounds to suspect a violation of the Vehicle Code sufficient to satisfy Pennsylvania law. See also Commonwealth v. Slonaker, 795 A.2d 397 (Pa. Super. 2002) (explaining that probable cause for a traffic stop exists when a trooper followed Appellant's vehicle for five miles and observed the vehicle fully cross the white fog line three times and weave numerous times over the double yellow center line and the white fog line without fully crossing either line).
10 Appellant's second argument is that the trial court erred when it allowed the Commonwealth to introduce the results of her Intoxilyzer test. Appellant contends that her test results should have been suppressed on the grounds that the Intoxilyzer 5000 unit malfunctioned. See Appellant's Brief at 13. She claims that the Intoxilyzer test was administered in violation of 67 Pa. Code section 77.25, which requires the operator of breath test equipment to remove the machine from service following a malfunction. The suppression court refused to grant Appellant's request for relief on the grounds that there was no malfunction and that the machine performed exactly as it was designed to do. We agree.
11 "Malfunctioning" has been interpreted by our Court to mean "failing to perform on accuracy and calibration tests required to be performed as set forth in Sections 77.24(b) (accuracy inspection test) or during an actual breath test as set forth in 77.25(b) (actual test), and not otherwise."
Commonwealth v. Hoopes, 722 A.2d 172, 176 (Pa. Super. 1998) (citations omitted). Our Court has determined that a breath testing machine needs to be placed out of service and re-calibrated only if it failed or malfunctioned during a calibration inspection test, during an actual test of a suspect, or if the simulation test exceeded the prescribed deviation during a calibration test. Id. None of these events occurred in this case.
12 As noted by the suppression court in its opinion, the Intoxilyzer test was administered to Appellant four times. The first attempt failed because Appellant did not provide any breath to be tested. The machine 'timed out' correctly. The second aborted test involved the machine shutting down because of radio frequency interference. The machine shut down because the Intoxilyzer has a feature which causes the machine to abort testing when radio frequency interference occurs. This feature also performed according to the machine's design. The third aborted test occurred when the machine picked up alcohol on Appellant's breath during its pre-test internal checks. This third aborted test happened because Appellant talked and coughed in close proximity to the Intoxilyzer's sensor. The machine picked up alcohol on Appellant's breath while performing its pre-test internal checks. A design feature of the equipment resulted in automated shut-down. During the fourth administration of the test, a breath sample was successfully obtained. The machine did not fail to perform on accuracy and calibration tests or during an actual breath test, thus, no malfunction of the machine occurred. Hoopes, supra. For the foregoing reasons, we find that the suppression court did not abuse its discretion when it denied Appellant's motion to suppress the results of the Intoxilyzer 5000 test.
13 Judgment of sentence affirmed.
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