 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Lippert12/1/2005
1 Carl Lippert challenges the sufficiency of the evidence supporting his conviction of driving under the influence of alcohol with a blood alcohol content of .10% or more. We vacate the judgment of sentence and discharge Appellant.
2 We first examine the evidence presented at Appellant's jury trial. Monroeville Police Officer Safar testified that from midnight to 4:00 a.m. on November 11, 2001, the Plum Borough Police Department and Monroeville Police Department were conducting a joint DUI checkpoint on Logans Ferry Road in Plum. When Appellant arrived at the checkpoint at approximately 12:30 a.m., Officer Safar explained to him that a DUI check was being performed on all drivers, and he asked for Appellant's license, registration and insurance information. As soon as Officer Safar approached Appellant's window, he noticed an odor of alcohol. Since Appellant also fumbled for his documentation and exhibited slurred speech, Officer Safar concluded that field sobriety testing should be conducted and directed Appellant to drive to a nearby parking lot. Plum Borough Police Officer Andrew McNelis assumed Appellant's processing and administered four field sobriety tests. After failing the tests, Appellant was placed under arrest and taken to a recreational vehicle that police were utilizing to administer an intoxilyzer test.
3 Plum Borough Police Officer Eric Schlarp, who completed Appellant's processing, testified that he tested Appellant's BAC with an Intoxilyzer 5000. Officer Schlarp explained that the subject blows into the instrument and his BAC is printed out by the machine. After being administered warnings, Appellant submitted to testing. The intoxilyzer's print-out was read into evidence, and it indicated "that the first test was 1:28 a.m., the second test was 1:29 a.m., the subject was [Appellant], and [Officer Schlarp] was the operator of the instrument." N.T. Jury Trial, 1/22-23/04, at 111. The result of the first test was a BAC of .105%, and the second test gave a BAC reading of .115%. Appellant admitted to drinking two beers at a friend's home prior to driving.
4 At trial, Appellant testified consistently with his admission to police on November 11, 2001, stating that he consumed two beers at a friend's home, one at 11:30 p.m. on November 10, 2001, and another one at midnight. Appellant then presented the testimony of Dr. Kalipatnaru N. Rao, a professor of pathology and chief of the toxicology laboratory at University of Pittsburgh Medical Center, who was qualified as an expert witness in the dissipation of alcohol in the blood. Dr. Rao was familiar with the Intoxilyzer 5000 and testified that it had a margin of error of ten percent. He also testified that based upon Appellant's testimony regarding his alcohol consumption on the night in question and the results of Appellant's two intoxilyzer tests, Appellant's BAC was rising as of 1:29 a.m. and that his actual BAC when driving at 12:30 a.m. was .045% or one-half of the legal limit.
5 In rebuttal, the Commonwealth presented Jennifer Janssen, who was assistant chief toxicologist at the Allegheny County Coroner's Office, Forensic Science Division. She was qualified as an expert witness in the Intoxilyzer 5000 and in the absorption and dissipation of alcohol in the blood. She countered Dr. Rao's testimony by stating that the Intoxilyzer 5000 has a margin of error of only five percent. She also testified that Appellant's actual BAC could have been either .10% or .11% at 1:28 a.m. based upon the test reading of .105%. Id. at 223. Critically, she specifically admitted that it was not possible to ascertain whether Appellant's BAC was rising or falling based upon the evidence, stating, "Basically, I d
Page 1 2 3 4 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|