The following was an editorial that was printed on the front page of The Paxton Herald.
Money is Important, but Justice is Priceless.
By Justin J. McShane, JD, F-AIC
I dream of a time when there are no drunk drivers on the road. Drunk driving costs lives and ruins families. It is a horrible crime. I detest it. I see the death, carnage and damage on a daily basis. DUI is not only the most frequently violated crime in this state, but is also the most costly in terms of every single metric: lives, property damage, police resources, court resources, taxpayer money, and impact to families. We also, however, must protect the integrity of prosecutions. The right people must be punished for the right crimes.
Money is important. Taxes are high. Times are tough. We need to be prudent and stingy not only with our own household money, but especially so with our public money.
Science helps us prosecute the right people for the right crimes. One of the ways to be tough on crime is to be tough on the science that is used to prove the crime. Safe roads come from awareness of DUI and its harm as well as proper enforcement of DUI. Proper enforcement of DUI means solid science. The best deterrence to DUI is to make the science behind DUI beyond question and rock solid. Right now, many people know or suspect that the science can be beaten in a DUI case. As a result, people play a dangerous Russian Roulette game with all of us that are on the roads by getting behind the wheel when they should not and just take the chance that, if caught, they can beat the DUI.
In this state, there are certain levels of DUI based upon alcohol content: 0.08, greater than 0.10, and 0.16 or higher. The higher your alcohol content, the worse the punishment will be.
Until recently, the major way the government proves DUI in Dauphin County is through breath testing.
There is a problem all across the state when it comes to DUI Breath Testing. The problem is now well known and now well proven. The way that the government chooses to use breath testing is not scientific.
The issue at the heart of this case came on August 27, 2010, when a motorist my firm represented filed a motion that claimed that the government could not provide any evidence anyone’s BrAC result was above 0.16%.
This challenge was tasked to the Honorable Lawrence F. Clark, Jr. of Dauphin County. Judge Clark, as a former Pennsylvania State Police Trooper and instructor at the PSP academy, was the most logical choice by the President Judge to hold this hearing that would have statewide impact.
The trial court handled the issue with care, caution, and thought. It made the decision to hold hearings on the issue and took steps to invite government agencies including the Pennsylvania Office of the Attorney General, the Pennsylvania Department of Health, PennDOT, and the Pennsylvania State Police. All of these agencies, but PennDOT, declined to become involved. PennDOT only attended the first organizational meeting, but declined to participate further. The trial court scheduled meetings and entered various orders governing the litigation as well as required detailed and comprehensive expert reports.
Many other motorists joined Mr. Schildt in his challenge.
The litigation began in April 2012. For the combined defendants, the court heard extensive testimony from Dr. Lee Polite, PhD (an expert in analytical chemistry and spectroscopy), Dr. Jerry Messman, PhD (a retired National Institutes Standards and Technology spectroscopist, and active international metrologist), and Dr. Jimmy Valentine, PhD (an expert in toxicology, pharamcology, and analytical chemistry, as well as a retired state Breath Testing program administrator). The government called Mr. Brian Faulkner. He was an electrical engineer employed by CMI, Inc— one of the machine manufacturers that Schildt challenged. He was not qualified as an expert in spectroscopy, metrology, or analytical chemistry.
After conducting thorough meetings, hearing four concentrated days of scientific testimony, and reviewing the parties’ legal writings, the trial court entered an order granting our motion on December 31, 2012. The trial court concluded that the government can’t provide for any evidence of breath-alcohol content (BrAC), using breath-test devices, above 0.15%. It was this lack of evidence that caused the trial court to grant our motion. The trial court did so not because of any regulatory or statutory infirmity.
The trial court recognized that the government has two mandatory points (0.05 BrAC, and 0.10 BrAC) and a third mandatory optional point (some value greater than 0.10 by multiples of 0.05) for field calibration. As the trial court explained, the government could have chosen 0.20 to solve this issue, but instead, it chose the narrower range that did not cover this essential element—0.16 BrAC. Because of how the Commonwealth chose to implement the machines’ calibration checks, the government can never prove that essential element of the crime (above a 0.16 BrAC).
On appeal, the government argued two issues: (1) that our challenge invalidated the statute; and (2) we improperly used pre-trial procedures to challenge the admissibility of his breath-alcohol breath test. The Superior Court panel, after we conceded as it had from the beginning that the statutes and regulations surrounding breath-alcohol breath testing are valid, found the trial court prematurely held the Commonwealth to its burden of proof at trial when it dismissed the charge that required proof of a BrAC above 0.16.
Simply put, the 0.05, 01.10, and 0.15 BrAC concentrations can be thought of like the end zone of a football game. The sidelines set the boundary for what is inbounds (touchdown) and what is out of bounds (no touchdown). The government can be thought of as the NFL. The NFL makes a choice to make its rules to set how wide or narrow the end zone is going to be. The NFL cannot come back later and claim that a clearly out-of-bounds catch is now in-bounds because it wants a certain team to win. The same is true with the government and its choice to not include the sideline out past 0.16 BrAC. This creates a fatal forensic flaw in the evidence much like a cliff. One is never slightly off a cliff. Likewise, one is simply never slightly out of calibration. The choice of the 0.15 over the 0.20 makes it so there is a proverbial cliff past that 0.15 BrAC reading where there is no evidence.
The BrAC involved in all prosecutions of 75 Pa.C.S.A. §3802(c), where the government has to prove a BrAC greater than 0.16, is an essential element of the crime. This means without the BrAC there can be no trial and no conviction can stand.
In a unanimous three-judge memorandum decision, a Superior Court panel reversed the Judge Clark’s well written 32-page decision granting our motion.
If the Superior Court’s opinion is allowed to stand, this exact issue will be litigated hundreds, if not thousands of times, all across Pennsylvania to great expense of the Public Defender’s Offices, District Attorney’s offices, and private citizens as well as strain judicial resources. It will cost thousands and perhaps millions of dollars.
For the sake of safe roads, for the sake of saving taxpayer money, and for the sake of justice, we should all hope that the Pennsylvania Supreme Court takes this issue head on, and give us certainty in the safety of our roads, and certainty that only those who are truly guilty are punished.
 The National Institute for Standards and Technology (NIST) is a government agency. It is the official national metrology body for the United States that makes and certifies standards used nationally and internationally and sets up measurement standards that are used in government and private industry.
 Metrology is the established scientific study of measurement.