What does 12 cents buy you these days? Nothing I know of.
But in law in Lebanon County, it is the total difference between valid and non-validated testing. It is the literal price of justice. All because good Samaritan Hospital wanted to save 12 cents per test and the local DA did not ask to fix it . This 12 cents is the enduring price of the propagation of injustice.
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Here is the latest update on one of the very last counties to still try to conduct Enzymatic Immunoassay (EIA) testing for BAC in Pennsylvania. Based upon fundamental scientific challenges that we raised here at the McShane Firm, York County did the right thing and ended all EIA testing over 2 years ago. (WellSpan is to be commended, but why people who have been convicted for decades of a DUI should be upset) Also, last year Adams County and their very highly ethical DA’s Office similarly abandoned EIA testing based upon our challenges to their validity. Hershey Medical Center will not support its use in the courtroom based upon our past challenges. Also, Bedford and Blair counties through our challenges have converted away from EIA. And the list goes on.
Here are some background blogs on the issue of using EIA in the courtroom:
- More on Enzymatic Assay for Determination of BAC in a forensic context
- The Lack of Legal and Forensic Suitability of Enzymatic Assaying for Blood Alcohol Concentrations in Prosecutions of Alleged Drunk Drivers
- Lecture on Analytical Chemistry in BAC testing Part 7
As readers of this blog are aware, the attorneys at the McShane Firm have been battling EIA for quite some time. We have litigated the admissibility of these tests for over 5 years with many dozens of judgments of acquittals granted at the end of the Commonwealth’s case-in-chief, and several memorandum opinions leading to reversal of convictions (probably not less than 10) all out of Lebanon County. In the last three years, no conviction for EIA based testing has been upheld coming out of our cases. Lebanon has been the primary battlefield in this fight, although we have successfully litigated it in several other counties as listed above. For example, the published Superior Court opinion of Commonwealth v. Karns was our case out of Bedford county.
In this latest chapter of the tortured history of blood testing for EtOH in Lebanon County, the Lebanon County District Attorney’s office filed a Motion In Limine seeking to address the admissibility of blood (actually supernatant related EIA based) tests performed at Good Samaritan Hospital. Their Motion contained two primary premises: (1) that it was not necessary to follow the manufacturer’s manual for the device that was being used to perform the tests (that was in response to a Motion for Judgment of Acquittal that was granted in one of Attorney McShane’s cases and one of Tim Barrouk of the McShane Firm’s cases), and (2) whether converting evidence was necessary for a test performed on supernatant.
Tim Barrouk of the McShane lead the latest charge. He filed a response to the Commonwealth’s Motion arguing that a Motion In Limine was not proper to address these issues and also challenging the Commonwealth’s substantive arguments.
The Court sitting en banc sided with Attorney Barrouk on every issue. All four found that the Motion In Limine was not the proper vehicle for the Commonwealth to use and they still addressed the substantive issue in our favor.
Some of the quotes from the Opinion of all four judges of Lebanon County include:
Even if the Commonwealth were to present testimony from a lab tech in support of the notion that the size of the sample can be reduced below what is set forth in the Siemen’s operating manual, we would reject such testimony… the instruction manual for that device must be scrupulously followed… this is not a decision about which we will compromise.
By know it should be patently obvious that the Superior Court will require converting evidence… no one should seriously dispute converting evidence is necessary
The DA asked for the en banc consideration and they got it.
Tomorrow we file our Motion to Dismiss those blood-based BAC charges in Lebanon County.
It just goes to show the power of science.
It just goes to show how science can make a difference.
It just goes to show how criminal defense attorneys make justice.