BAC test in Pennsylvania

2022See Shaw, 770 A.2d at 299 (“[As Shaw’s] BAC test was not conducted pursuant to Section 3755(a), the release of the result of the BAC test at the request of Trooper Hershey was not authorized by Section 3755(a), nor is there any other statutory basis for releasing the result.”) (emphases added).

2022See Shaw, 770 A.2d at 299 (“[As Shaw’s] BAC test was not conducted pursuant to Section 3755(a), the release of the result of the BAC test at the request of Trooper Hershey was not authorized by Section 3755(a), nor is there any other statutory basis for releasing the result.”) (emphases added).

2019The Commonwealth observes the McNeely Court, in rejecting a per se exigency rule, recognized " '[s]tates have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence,' including 'allow[ing] the motorist's refusal to take a BAC test to be used as evidence against him[.]' " Id. at 12, quoting McNeely , 569 U.S. at 160 -61 , 133 S.Ct. 1552 .

2019The Commonwealth observes the McNeely Court, in rejecting a per se exigency rule, recognized " '[s]tates have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence,' including 'allow[ing] the motorist's refusal to take a BAC test to be used as evidence against him[.]' " Id. at 12, quoting McNeely , 569 U.S. at 160 -61 , 133 S.Ct. 1552 .

2021Wolfel subsequently was charged with the following offenses: homicide by vehicle while DUI; aggravated assault by vehicle while DUI; DUI of alcohol or controlled substance; DUI of alcohol or controlled substance with a BAC of .178%; DUI of alcohol or controlled substance; and careless driving. 2 Prior to trial, Wolfel filed a Motion to Suppress the results of the BAC test, based upon the United States Supreme Court’s holding in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).3 On allowance of appeal, our Supreme Court summarized the pre-trial suppression proceedings as follows: ____________

2019Id. at 2185 , citing McNeely , 569 U.S. at 161 , 133 S.Ct. 1552 (implied consent laws "impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most [s]tates allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution").

2009Id., at 28 (quoting Commonwealth v. Ciccola, 894 A.2d 744, 750 (Pa.Super.2006)).

2009Id., at 28 (quoting Commonwealth v. Ciccola, 894 A.2d 744, 750 (Pa.Super.2006)).

2000Subsection (a)(4) "requires that the Commonwealth satisfy its burden solely through competent BAC test results....” Commonwealth v. Loeper, 541 Pa. 393, 403 , 663 A.2d 669, 674 (1995) (emphasis added).

2000Subsection (a)(4) "requires that the Commonwealth satisfy its burden solely through competent BAC test results....” Commonwealth v. Loeper, 541 Pa. 393, 403 , 663 A.2d 669, 674 (1995) (emphasis added).

2020In reaching this conclusion, we noted that the “police officer specifically requested that a BAC test be performed at [the hospital]” and the appellant “never disputed that [the trooper] had probable cause to believe that [he] was [operating a motor vehicle under the influence] of alcohol.” Id. at 1010 .

2020In reaching this conclusion, we noted that the “police officer specifically requested that a BAC test be performed at [the hospital]” and the appellant “never disputed that [the trooper] had probable cause to believe that [he] was [operating a motor vehicle under the influence] of alcohol.” Id. at 1010 .

2025Such “rival priorities would put officers, who must often engage in a form of triage, to a dilemma,” forcing them to “choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits.” 118 Accordingly, the Mitchell plurality concluded that, if a police officer has probable cause to suspect DUI, and the suspect’s “unconsciousness or stupor requires him to be taken to the hospital or similar facility b

2025Such “rival priorities would put officers, who must often engage in a form of triage, to a dilemma,” forcing them to “choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits.” 118 Accordingly, the Mitchell plurality concluded that, if a police officer has probable cause to suspect DUI, and the suspect’s “unconsciousness or stupor requires him to be taken to the hospital or similar facility b

2023Id.

2023Id.

2026See, e.g., Commonwealth v. Banko, 268 A.3d 484, 492 (Pa. Super. 2022) (finding that the BAC test results were obtained for the primary purpose of medical treatment after the defendant was transported to the hospital following the automobile accident because the defendant reported to be diabetic and complaining of pain; the test results were not obtained to establish or prove past events relevant to a later criminal prosecution), appeal denied, 279 A.3d 1176 (Pa. 2022); see also Commonwealth v. McCullough, 324 A.3d 582, 587 (Pa. Super. 2024) (finding that medical records containing objective in

2026See, e.g., Commonwealth v. Banko, 268 A.3d 484, 492 (Pa. Super. 2022) (finding that the BAC test results were obtained for the primary purpose of medical treatment after the defendant was transported to the hospital following the automobile accident because the defendant reported to be diabetic and complaining of pain; the test results were not obtained to establish or prove past events relevant to a later criminal prosecution), appeal denied, 279 A.3d 1176 (Pa. 2022); see also Commonwealth v. McCullough, 324 A.3d 582, 587 (Pa. Super. 2024) (finding that medical records containing objective in

2020As such, our courts have held that “evidence of blood tests taken more than two hours after driving is admissible under subsection (a)(1) without resort to section 3802(g).” Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa.Super. 2016) (citing Commonwealth v. Segida, 604 Pa. 103 , 985 A.2d 871, 879 (2009)).

2020As such, our courts have held that “evidence of blood tests taken more than two hours after driving is admissible under subsection (a)(1) without resort to section 3802(g).” Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa.Super. 2016) (citing Commonwealth v. Segida, 604 Pa. 103 , 985 A.2d 871, 879 (2009)).

2014Commonwealth v. Sullivan, 581 A.2d 956, 959 (Pa. Super. 1990); see also Commonwealth v. Shiffler, 541 A.2d 780, 783 (Pa. Super. 1988) (determining that a challenge to the reliability of BAC results goes to the weight of the evidence).

1994In Commonwealth v. Sullivan, 399 Pa.Super. 124, 129 , 581 A.2d 956, 958-959 (1990), testimony provided by the director of the laboratory regarding the qualifications of the *55 personnel and procedures used to determine the defendant’s BAC, along with testimony from a police officer and the laboratory’s director regarding the chain of custody, was sufficient to defeat the defendant’s challenge to admissibility.

2002See also Commonwealth v. Mongiovi, 360 Pa.Super. 590 , 521 A.2d 429 (1987) (concluding certificates of accuracy and calibration sufficient to support finding of reliable BAC test result). *588 ¶ 13 Pursuant to Appellant’s pretrial motion for discovery and supplemental motion for discovery, the trial court ordered the Commonwealth to produce, inter alia, “[d]ocuments relating to the [I]ntoxilyzer 5000 including the certification of the operator, certificates of accuracy, certificates of calibration, [and] the logs of operation and repair logs from the time the machine was placed into service...

2002See also Commonwealth v. Mongiovi, 360 Pa.Super. 590 , 521 A.2d 429 (1987) (concluding certificates of accuracy and calibration sufficient to support finding of reliable BAC test result). *588 ¶ 13 Pursuant to Appellant’s pretrial motion for discovery and supplemental motion for discovery, the trial court ordered the Commonwealth to produce, inter alia, “[d]ocuments relating to the [I]ntoxilyzer 5000 including the certification of the operator, certificates of accuracy, certificates of calibration, [and] the logs of operation and repair logs from the time the machine was placed into service...

1997See Modaffare, supra at 106-07 , 601 A.2d at 1236.

1997See Modaffare, supra at 106-07 , 601 A.2d at 1236.

1997In Commonwealth v. Jarman, 529 Pa. 92 , 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101 , 601 A.2d 1233 (1992), our Supreme Court vacated judgments of sentence on the basis that 75 Pa.C.S.A. § 3731(a)(4) requires the relation back of a BAC test result to the time when the accused was driving.

1997In Commonwealth v. Jarman, 529 Pa. 92 , 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101 , 601 A.2d 1233 (1992), our Supreme Court vacated judgments of sentence on the basis that 75 Pa.C.S.A. § 3731(a)(4) requires the relation back of a BAC test result to the time when the accused was driving.

1998See, e.g., Commonwealth v. Stith, 434 Pa.Super. 501 , 644 A.2d 193 (1994) (requiring the Commonwealth to offer expert testimony to relate back a 0.12% BAC test result taken forty minutes after being stopped); Commonwealth v. Proctor, 425 Pa.Super. 527 , 625 A.2d 1221 (1993) (evidence of a 0.179% BAC taken approximately two hours after being stopped was insufficient to support conviction under 75 Pa.C.S.A. § 3731(a)(4) absent expert extrapolation testimony); Commonwealth v. Kasunic, 423 Pa.Super. 112 , 620 A.2d 525 (1993) (evidence of BAC of 0.21% taken fifty minutes after driving did not requi

1998See, e.g., Commonwealth v. Stith, 434 Pa.Super. 501 , 644 A.2d 193 (1994) (requiring the Commonwealth to offer expert testimony to relate back a 0.12% BAC test result taken forty minutes after being stopped); Commonwealth v. Proctor, 425 Pa.Super. 527 , 625 A.2d 1221 (1993) (evidence of a 0.179% BAC taken approximately two hours after being stopped was insufficient to support conviction under 75 Pa.C.S.A. § 3731(a)(4) absent expert extrapolation testimony); Commonwealth v. Kasunic, 423 Pa.Super. 112 , 620 A.2d 525 (1993) (evidence of BAC of 0.21% taken fifty minutes after driving did not requi

2026See, e.g., Commonwealth v. Banko, 268 A.3d 484, 492 (Pa. Super. 2022) (finding that the BAC test results were obtained for the primary purpose of medical treatment after the defendant was transported to the hospital following the automobile accident because the defendant reported to be diabetic and complaining of pain; the test results were not obtained to establish or prove past events relevant to a later criminal prosecution), appeal denied, 279 A.3d 1176 (Pa. 2022); see also Commonwealth v. McCullough, 324 A.3d 582, 587 (Pa. Super. 2024) (finding that medical records containing objective in

2026See, e.g., Commonwealth v. Banko, 268 A.3d 484, 492 (Pa. Super. 2022) (finding that the BAC test results were obtained for the primary purpose of medical treatment after the defendant was transported to the hospital following the automobile accident because the defendant reported to be diabetic and complaining of pain; the test results were not obtained to establish or prove past events relevant to a later criminal prosecution), appeal denied, 279 A.3d 1176 (Pa. 2022); see also Commonwealth v. McCullough, 324 A.3d 582, 587 (Pa. Super. 2024) (finding that medical records containing objective in

2026See, e.g., Commonwealth v. Barton-Martin, 5 A.3d 363 , 368 - 31 - J-S28026-25 (Pa. Super. 2010), appeal denied, 30 A.3d 486 (Pa. 2011) (finding that BAC test results obtained for the primary purpose of establishing an element of the crime were testimonial); see also Commonwealth v. Kearns, 332 A.3d 1267 , 2024 WL 5245135 , at *7 (Pa. Super. filed Dec. 30, 2024) (unpublished memorandum) (finding that because the defendant was taken to the hospital for the primary purpose of developing evidence of his prior drug use, the test results were testimonial), appeal denied, ___ A.3d ___, 2025 WL 252739

2026See, e.g., Commonwealth v. Barton-Martin, 5 A.3d 363 , 368 - 31 - J-S28026-25 (Pa. Super. 2010), appeal denied, 30 A.3d 486 (Pa. 2011) (finding that BAC test results obtained for the primary purpose of establishing an element of the crime were testimonial); see also Commonwealth v. Kearns, 332 A.3d 1267 , 2024 WL 5245135 , at *7 (Pa. Super. filed Dec. 30, 2024) (unpublished memorandum) (finding that because the defendant was taken to the hospital for the primary purpose of developing evidence of his prior drug use, the test results were testimonial), appeal denied, ___ A.3d ___, 2025 WL 252739

2025Regarding [Day]’s refusal to submit to chemical testing, 75 Pa.C.S.A § 1547(e) provides that a defendant’s refusal to submit to a BAC test may be used as evidence against the defendant[.] Trial Court Opinion, 8/9/2024, at unnumbered 4–5. ____________________________________________ 2 See Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005) (stating “It is the [a]ppellant who has the burden of establishing [her] entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law”). -7- J-S06022-25 Based upon our review of the record, and viewi

2025Regarding [Day]’s refusal to submit to chemical testing, 75 Pa.C.S.A § 1547(e) provides that a defendant’s refusal to submit to a BAC test may be used as evidence against the defendant[.] Trial Court Opinion, 8/9/2024, at unnumbered 4–5. ____________________________________________ 2 See Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005) (stating “It is the [a]ppellant who has the burden of establishing [her] entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law”). -7- J-S06022-25 Based upon our review of the record, and viewi