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Commonwealth v. Lippert12/1/2005
admitted that Appellant's BAC could have been less than .10% when he was driving when she conceded that she was unable to opine that it was rising between 12:30 a.m. and 1:30 a.m. Since Appellant's BAC was exactly .10% one hour after driving and since the Commonwealth conceded that it could have been rising, the inference of guilt herein was too weak to establish proof beyond a reasonable doubt. See Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992).
17 It is important to note that subsection (a.1) creates only a permissible inference to the benefit of the Commonwealth. MacPherson, supra. The burden remained on the Commonwealth to prove beyond a reasonable doubt that Appellant's BAC was .10% or more when he was driving. Id. The Commonwealth's evidence was deficient.
18 Judgment of sentence vacated. Defendant is discharged. Jurisdiction relinquished.
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