Commonwealth v. Hartman

Opinion by

Hirt, J.,

The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. The Commonwealth has appealed from an order of the lower court granting a new trial.

The defendant was involved in an intersection accident in the City of Reading at 3:50 p.m. on January 14, 1954. Although it had stopped snowing and the temperature was above freezing, the streets were icy. Defendant’s car skidded about 20 feet on the slippery pavement into another car approaching on the intersecting street. One of the police officers, who arrived at the scene immediately after the accident testified that he detected the odor of “beer or some alcoholic brew” on defendant’s breath. A second police officer who examined defendant' at the City Hall, where he had been taken after his arrest, testified that he detected a “moderate odor of alcohol” on the defendant. After questioning the defendant and subjecting him to a number of objective tests these officers concluded that defendant was a proper subject for the so-called “Forrester Intoximeter Test” to determine whether the alcohol content of his blood indicated that he was unfit for driving an automobile. The defendant consented to taking the test. The results of the test were admitted in evidence by the trial judge principally on the testimony of Dr. Clarence Muehlberger, a chemist and toxicologist who from a wide experience in the use of the Intoximeter stated that the result is reliable if the test is properly taken. There is nothing in this record questioning the procedure in administering the test in the present case nor the validity of the ultimate finding. A police officer who had adequate instruction in the use of the device administered the test and then delivered the cannister to C. P. Ludwig, a biochemistry technologist at St. Joseph’s Hospital in Reading. He was the same technologist who previously had prepared the device for the taking of a test. From an analysis based upon the amount of carbon dioxide picked up from the defendant’s breath in a tube containing ascarite, and a quantitative determination of the alcohol entrapped in a tube containing magnesium perchlorate this witness testified that the alcoholic content of defendant’s blood then was .20 percent.

The undisputed evidence is that a person with .15% or more alcohol in the blood is under the influence of intoxicating liquor. And the jury in this case were justified in finding from Dr. Muehlberger’s testimony that at the time when the intoseimeter test was applied the defendant’s “mental and physical capabilities [were] impaired in those things which are necessary in the safe operation of a motor vehicle.” We have no doubt as to the admissibility of the testimony based upon the Intoximeter test. In Com. v. Harold Roller, 100 Pa. Superior Ct. 125, we quoted the language of a distinguished Judge¹ to this effect: “ ‘all knowledge purveys to the law, and from the domains of every art and science it draws the weapons by which it discovers truth and confounds error. The still photograph, X-ray, the dictograph, the finger print, the phonograph, the microscope, and even the bloodhound, have all been used and received by judicial tribunals in the proof of matters depending upon evidence; and, in all such cases, the preliminary investigation was directed to the proper authentication of the evidence, and not merely to the question whether imposture might be successful.’ ” We have repeatedly adhered to the principle in accepting new and for the most part mechanical devices as aids in the search for truth and right answers to factual issues: Cf. Com. v. Albright, 101 Pa. Superior Ct. 317, 326; Com. v. Clark, 123 Pa. Superior Ct. 277, 285, 187 A. 237; DeBattiste v. Laudadio & Son et al., 167 Pa. Superior Ct. 38, 42, 74 A. 2d 784.

The result of the test, resting as it does upon the testimony of Dr. Muehlberger, determined that the defendant was “under the influence” at 4:45 p.m. on the day in question, the time definitely fixed when he submitted to the test. But Dr. Muehlberger testified that before alcohol has an effect on the conduct of a person it must be absorbed into the blood stream; that the absorption is a gradual process, but the rate of absorption is influenced by a number of factors, among them the state of the taker’s stomach as to food content, e.g., whether full or empty. With allowances for variable factors in different individuals and under a variety of circumstances Dr. Muehlberger testified that it takes from one-half to one and one-half hours from the time alcohol is consumed until it is absorbed into the blood stream. On the present record the court was of the opinion that since the Commonwealth did not produce any evidence of drinking prior to 3:00 p.m. “the results of the test would not be indicative of defendant’s condition at [3:50 p.m.] the time he was arrested” under Dr. Muehlberger’s testimony. The court recognized the admissibility of Intoximeter tests, generally, but concluded that for the above reason the test in this case was wholly inadmissible. Accordingly the verdict was set aside for a retrial of the case on other evidence of defendant’s intoxication. Since the lower court granted a new trial for this single reason, raising a question wholly of law, the order was appealable by the Commonwealth. Com. v. Bradley, 109 Pa. Superior Ct. 294, 167 A. 471.

The only direct evidence as to the kind and quantity of intoxicants consumed by the defendant and the time spent in drinking at the By-bar is in the testimony of the defendant himself and that of his companion. They both said that they arrived at the tavern after 3:00 p.m. where the defendant drank “two beers” and no more. The fact that the Commonwealth was not in position to prove that the defendant came to the tavern earlier in the day or that he consumed more than two beers while there was not controlling on the question of defendant’s guilt. Defendant’s credibility and that of his witness were for the jury and the weight ascribed to their testimony may have had a determining effect on the result. The opinions of the police officers who examined defendant at the City Hall immediately after the arrest, to the effect that in their opinion he then was intoxicated went to the credibility of defendant and his witness. And clearly defendant’s condition within one hour after his arrest, as shown by the Intoximeter test on testimony which has not been questioned, was competent and relevant and was some evidence on the question of whether he was under the influence of intoxicating liquor while driving his automobile at the time of the collision. The weight of the evidence based on the test of course was for the jury.

We have examined the charge of the court in this case. It was entirely adequate. The testimony of the witnesses as to the Intoximeter test, and especially of Dr. Muehlberger, were reviewed in detail and the trial judge warned the .jury: “It is, of course, important to know the condition of the defendant at the time he was operating the vehicle. If at that time there had not been sufficient absorption into the blood stream to make him under the influence, and if the result varied by that reason or would have varied, then, of course, you should accept the test with qualification.” The rights of the defendant were, given proper consideration throughout in a charge free from error. The defendant did not except even generally to it. As in Com. v. Bradley, supra, there is merit in the Commonwealth’s appeal in this case.

The order setting aside the verdict and granting a new trial is reversed; the verdict is reinstated and the record is remanded for the sentencing of defendant.

Boss, J., dissents.

1 The late James Gat Gordon, Jb., President Judge of Common Pleas Court Number 2 of Philadelphia.