Superior Court Grants New Trial on Weight of Evidence Challenge to DUI Conviction
Burton A. Rose, Esq. on 4/16/2014
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The Appellant appealed from a judgment of sentence entered in the Juniata County Court of Common Pleas after a jury found him guilty of, inter alia, DUI-highest rate of alcohol. Appellant claimed that he was entitled to a new trial because the finding that his blood-alcohol level was over .16% within two hours of driving was against the weight of the evidence. The Panel agreed and ruled that the Appellant was entitled to a new trial on the count of DUI-highest rate of alcohol because the blood-alcohol test result of .164%, which was relied on by the Commonwealth, was subject to a 10% margin of error and there was no further evidence to sustain the jury´s finding that his blood alcohol level was .16% or above within two hours of driving.
Section 3802(c) of the Motor Vehicle Code provides that: An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual´s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
The Superior Court agreed that the jury´s verdict on the count of DUI-highest rate of alcohol was against the weight of the evidence. The evidence that his blood-alcohol level was .164% was unreliable because the medical technician only took one sample of blood and ran only one test. Moreover, the result from an Avid Axsym machine was less accurate than a gas chromatography test, and the evidence at trial established a 10% margin of error in the results from the Avid Axsym machine.
The trial record did not contain a reasoned basis for accepting the specific reading of .164% as either accurate or precise. There was no support for a finding that the reading registered by the Avid Axsym machine was any more reliable than the possible blood-alcohol levels within the 10% margin of error. Moreover, since there was no direct or circumstantial evidence regarding the possible applications of the 10% margin of error, the trial evidence required the jury to speculate that Appellant´s actual blood alcohol content was .16% or higher within two hours of driving. Therefore, the Panel held that the Appellant was entitled to a new trial on the count of DUI-highest rate of alcohol.
The attorney for the Appellant was Shawn Michael Dorward, of the McShane Firm, Harrisburg, PA.
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