What must the Commonwealth of Pennsylvania prove in order to have a breath test result admitted into evidence in a PA DUI-DWI-DAI case?
Nov 15th, 2007 | By Michael L. Saile, Jr., Esq. | Category: Blogs, DUI-DWI-DAI (Drunk Driving)Commonwealth must prove by a preponderance of the evidence standard that each breath test:
1. Was conducted by a qualified person who has fulfilled the training requirements set forth by the Departments of Health and Transportation.
2. Was conducted on a device approved by the department of health.
3. Utilized proper procedure prescribed.
4. The breath testing machine must be calibrated and tested for accuracy within the specified time period.
The author of this Law Blog, Bucks County PA & Mercer County, NJ criminal attorney, Michael L. Saile, Jr., Esq. of Saile & Saile LLP, Attorneys-at-Law practices both New Jersey and Pennsylvania criminal, traffic violations, and DUI/DWI/DAI law. Check out our website for DUI penalties. We handle all NJ Municipal Court cases including DUI in the following NJ Municipal Courts: Hopewell Township, Ewing Township, Trenton, Lawrence Township, Hamilton, Pennington, and other Mercer County, Burlington County, and Camden County, NJ courts. We also handle lower bucks county DUI and traffic violation cases in the following towns: Bensalem, Southampton, Richboro, Newtown, Levittown, Langhorne, Doylestown, Warminster, Trevose, Feasterville, Warrington, Bristol, Fallsington, Morrisville, Yardley, New Hope, Holland, Washington Crossing, PA, and other Bucks County courts. We handle DUI cases in Philadelphia, Bucks, Chester, Delaware, and Montgomery County, PA. We are located just outside of Philadelphia in lower Bucks County.
Is Pennslyvania more willing to present these proofs in open court than NJ is?
It doesnt matter what the proofs are if the State refuses to present them and refuses to initate a trial.
Jim:
The Commonwealth of Pennsylvania must present evidence on all elements of the crime of DUI in order to sustain a conviction.
Mr, Saile, i beg to differ on this point..
well, not really differ, you are right , but i do not think this happens in most cases…
A slight difference from NJ To PA is that DUI is not a crime in NJ, it is a motor verhicle offense…
However, the proofs the State must present are similair in nature.
You know my stance on my pending DUI… you know i feel i have the right to have the State present these proofs in court, … yet is has been over 26 months, and i have faced the hammer 11 times, on the same one charge, totally causing me much continued stress and anixety…
It is not only about what you stated in the post above, it is about my right to have the State present what they have, wheather they can sustain a conviction or not!
This is really the crux of the DUI situation in NJ.
The State’s failure to present what they have, keeping the hammer over an individuals head for years on end….
It’s conudrum,
the Chun order says i may plead guilty “conditionaly” then wait for chun to be over and live by ther findings, …. it does not say i have to do this.
I have pleaded “not guilty” 11 times on the one DUI charge, in Court.
If th epolice officers testify, and allt
i can ot be the only person that has demanded a trial in a DUI case in NJ since Jan 10, 2006.
A ponit have not brought up yet in any of my posts….follows….
The Chun Order says that a finding of Guulot for a first offense Alcotest DUI must also have an alternate finding of guilt based on sonmething other than the Alcotest “where possiblke”
Well, this is my interpetation of this part order…
If the police officers testify, and all observatiobal evidence and everything goes onthe reocrd, it would then be poosible to find an alternate finding of guilt, but if even after all this, the only basis and finding for guilt is on the Alcotest, and Not guilty finding must be rendered!
This is how the Order reads.
This is part of the reason I have been pressing for a trial for 26 months pending CHun, becuae i know I can beat any alternate finding of guilt!
i tis the possibility of finding an alternate reason for guilt that the Chun order demands.
This possibity is made by officers testimony, and observations, video tape, ect ectec t…
This make id “POSSIOBLE”
And after all this other evidence is brought in , if the finding of guilt is based solely on the BAC, a finding of NOT GUILTY must be made.
No?
This is the conudrum, the State realizes this, the Courts realize this aspect of the Chun Order, and are unwilling to trial cases, thus prejudicing denfendants, and thus ignoring and disobeying the NJ Supreme Court.
it isnt right.
I think the prosecutor in my case, had the right idea , albiet after 23 months, ….. Go to trial on observatiobs only, as this is really the crux and substance of the Chun order.
it is unfortunate I came to severe philosophival differences with my attoney in this case and he is now out of it… but what does anyone expect after 26 months of this game, and a clear and direct NJ supreme Court order.
i think I can argue, if my case goes to trial after Chun is decided, that I have prejudiced against by the state regarding the NJ Supreme Court ORDER.
Now, it is going to take my new attorney some time to get discovery, (and this will certainly BE an intresting aspect of my case) aS i WAS SENT HIME THE FIRST 10 APPEARANCES BECUASE THE sTATE FAILED TO SUPPLY COPMPLET DISCOVERY OVER 23 MONTHS— and to date, over 26 months)
My attorney sid to the judge on th eappearance he asked off the case, .. there is a problem with the Chun Order…… As I see it, the only problem with the Chun Order is the Sates failure to obet it!
Again, and i want ot stress this point, i put 99% of the balme of the State.. it is certainly 100% burden on the State to initiiate a trial, .. it is not a defense burden!
The proofs must be presented. Wheather they will hold up under Court scrutiny or not. The StaTe and the Court should not allow this much time to elapse, and this many appeances TO to place!
i was pulled over for speeding , as the officer said in the stop report, for doing 64 in a 45, … however, no radar discovery was even submitted…
Now, another point here is “speeding” is not on any list to for DUI dectection, not that i was speeding, becuase i was not! I did not get a speeding ticket even.
After 10 minutes of talking to my new attorteny, a conversation that lasted 90 minutes, he said there are so many things going here.
i will not except any plea agreremtnt short of a 2 point speeding ticket, which i wil have to suffer a State suspension and higher insurannce for…
Short of that, i am demnanding a trial, the State to present their proofs, and I will keep my right to appeal based on barker available to me!
I am giving my new attorney complete control of my case, as i liked our dicussions prior to presenting him a check for representation.
it however, in light of my views, is a complete FAITH, in the legal process, once again, I give this faith to an attorey.
my attoenyey told me theres no downside to me testifying, basicaly, in my case, i gathered from my dicscussions,
‘
i am not a certified Alcotest operator, and i should not have bneen given the mauual and been allowed to offer suggestions on tst use in my case to get it work, to function, and my suugestions ultimatley followed to get the alcotest to function during my brethe test, … thsi BAC must be thrown out or at least reasonable doubt, … the only way to get it in is my testimony, whch my new attorney feels is a good idea…
I should not have had access to the instruement, to its power supply of the manual , and my suugestions on how to operate it should have have been ultimatley followed,, I should have ben taken to another town for testing….
Once you give a defenadt access to the alcotest maNnual, access to its power supply, and take the denfendants suggestions on how to get it to funbction,,,, as the instrument was malfunctionning and not working on my case, the BAC needs to be thrown out of consideration!
Ad my attoenyey said, an hones tofficer, wil admit to wehat wnt on drunin gthe test, and i say .. if he can remeber, however with is non remebering and my remebering, …that leads to reasonnable doubt as to the vlaidity of the BAC.
In other words, you cant give a suspect access to the alcotest manual , the power supply, and ultimate repsonsibilty for its functioning….
during the suspects alcotest breath test…
its not even passing the laugh test, as my attporney was almost on the floor laughing
I swear to god, on my fahter’s grave and to all concerned, this is this truth!!!!!
No wonder the Sste has refused to present the video tape rewquestdon Oct 3rd, 13 days after my arrest,
This tape , according to my attoreny is over writtenm every 30days, general practice.. but it was requested 14 days after my arrest..
i am not making this up, ,, it would be so far out of wack for me to make saomething tlike this up..
i do not wish to get the officer in trouble with this testimony, but it is the truth, so be it…… i am sorry…
Please help me, .. i wish everyone involved in this case to tell thre truth and let the law fall where it may, it is the fair and hinest thing to do.
I am certain that the prosecutor, and the judge in may case, are reading these posts, .. i am certain of it at this piont,,,,,
Well, i can only guess they are… and not only them , but memnbers of the law division, appealate dicvison ,and possibly the nj suprenme court.
An alcotest demnfendant should not be allowed to ultimatley be responible for its functioning against him.
Mr. Saile, do you see where there is a confilct?
Everyones wondering or investigating who i am , what kind of power i hacv, what arguemtns i can ultimatlety make, amd where the law falls into this.
Well, I wil tell you, the only power i have is in the Constituion of the United States of America, and my 1st, 4thm 5thm 6th and 14th amanedants rights!
and my 4th, 5hta
IM OTHER WRODS,I AM SAYING, PRESENT YOUR PROOF, allow me to prenst a DEFSESE, AND LET THE LAW FALL WHERE IT MAy… and if convicted i will respectivley appeal of spedy trial, wft, thats the only course any of us have,
unless they are willing to plea down to a 2 ponit speeding ticket…. then i will consider it. and xhalk it up to a great learning expericence