Ruling May Affect Thousands of Cases in Pennsylvania

A recent ruling in a case litigated by The McShane Firm affects thousands of DUI cases in Pennsylvania


The McShane Firm has always stood for excellence in substantive DUI Defense.  We proudly use every possible legitimate and scientifically based avenue to defend the rights of the citizen accused.

In accordance with our core values, the PA DUI Attorneys at The McShane Firm constantly challenge wrongful convictions, accusations made by the government, and pending charges.

In this case, we noted that there was something very wrong in the science of breath testing in Pennsylvania. This involved thousands of DUI cases based on the failure of the modernization of the implementation of the regulations for evidentiary Breath Alcohol Testing in Pennsylvania.

This is but another exhibit of this firm’s commitment of justice through science.

It was long presumed that all breath test machines were calibrated correctly and in keeping with modern science by the manufacturers of these devices. This has turned out not to be true.

The Pennsylvania Department of Health has issued regulations to check each machine’s calibration. This must be done at least once a year or more depending upon the performance of the machine. All police agencies in Pennsylvania have chosen to implement these regulations not in keeping with modern science. They typically only check using known solutions containing 0.05 ethanol content, 0.10 ethanol content, and 0.15 ethanol content. This is a zone, if you will, where they may have proven that the device can measure, namely between 0.05 and 0.15.

Well, what’s the big deal?

The big deal happens when one of the crimes that you are charged with requires the government to actually prove scientifically and validity that it is over a 0.16. How can they prove that when they didn’t show that the machine as deployed actually delivers and true result. Basically, the essential element is out of that zone of scientific safety that was checked by running a 0.05, 0.10, and 0.15 checks.

Any reading above .15 or below .05 has no scientific basis and is thus non-validated.

Therefore, cases that rely on these breath test results (above .15 or below .05) cannot be proven beyond a reasonable doubt.

The McShane Firm has filed a challenge in Dauphin County Court called the Demonstrated Linear Dynamic Range Challenge (DLDRC) based on solid scientific evidence and documented research.

We retained three prominent experts in analytical chemistry that have agreed with our analysis. One of which was a former National Institutes of Standards and Technology spectroscopist who worked extensively in their calibration efforts.

How does DLDRC effect my DUI case?

While many cases are effected by DLDRC, there are some parameters that need to be met in order for your specific case to qualify, such as:

  1. Date of Offense -your case must be either: a current pending case, or a conviction or guilty plea within the last year and 90 days.
  2. Type of Test- your case must involve an evidentiary breath machine which is the one given at the police station (not to be confused with the handheld breath devices used at roadside).
  3. Jurisdiction- Currently the DLDRC is raised only in Dauphin County. We will be filing DLDRC in other jurisdictions as well.
  4. BrAC Reading- Have you been charged with a DUI with:
    • a BAC over .16 OR
    • fall into a category which attaches penalties to lower BAC readings such as those under 21 (.02), school bus drivers operating school vehicles (.02), or CDL drivers operating a commercial vehicle (.04) and have a BAC less than .05.

If your case does not qualify based on the above requirements you should still call call The McShane Firm to see if there is something we can do to help you. Remember the DLDRC is only one means to defend a DUI case. There are actually many more ways that involve science, law, and fact. We can examine your case for free to see if we can use our expertise to help you, and make a difference in your life.

If you like to have your case reviewed to see if it can be challenged under this new ruling, please use the form below to submit your question. Or contact us at:

The McShane Firm LLC
3601 Vartan Way, 2nd Floor
Harrisburg, PA 17110
Phone: (717) 657-3900 or 1-866-MCSHANE
Fax: (717) 657-2060
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PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.

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One Response to “Ruling May Affect Thousands of Cases in Pennsylvania”

  1. [...] this year, a Dauphin County judge ruled breath testing to be inaccurate over a reading of 0.15% or under a 0.05% BrAC. Judge Lawrence F. Clark Jr. as a result of his [...]

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