Com. v. Lemke, M.
Com. v. Lemke, M. No. 481 EDA 2016
| Pa. Super. Ct. | Jul 18, 2017Background
- On May 25, 2013, Officer Kyra Davis observed Mark Lemke driving at high speed; she smelled alcohol and noted red/glassy eyes and slurred speech. Lemke was arrested for DUI.
- Officer Mark Eib administered two breath tests at the Police Administration Building; tests were given at 3:19 a.m. and 3:20 a.m., with the lower reading .166% BAC.
- Certificates of accuracy and calibration for the Intoxilyzer 8000 were admitted without objection; Lemke did not pretrial-move to exclude the breath test results.
- Defense cross-examination revealed the Intoxilyzer manual recommends a two-minute wait between tests, but Eib testified Department regulations require no wait and that he waited approximately one minute.
- Lemke was convicted at a bench trial of DUI — General Impairment (75 Pa.C.S. § 3802(a)(1)) and DUI — Highest Rate (75 Pa.C.S. § 3802(c)); sentenced to consecutive terms. He appealed only the sufficiency/ admissibility of the highest-rate conviction based on the testing interval.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Lemke) | Held |
|---|---|---|---|
| Whether evidence was insufficient because breath tests were unreliable due to <2-minute interval between tests | Breath test results are admissible; regulatory compliance presumed by certificates and testimony; sufficiency review accepts evidence supporting the verdict | Tests were unreliable because operator violated the Intoxilyzer manual by waiting only ~1 minute between tests, so results should be excluded or given no weight | Waived objection to admissibility for failing to timely object; treating results as admissible, evidence (BAC .166) sufficient to convict under § 3802(c) |
| Whether failure to object preserved a weight-of-the-evidence claim | Weight claims must be raised in a post-trial motion to be preserved | Counsel argued unreliability in closing but did not file a motion for new trial; thus claim preserved? | Waived: Lemke did not preserve a weight claim under Pa.R.Crim.P. 607(A) |
Key Cases Cited
- Commonwealth v. Chambers, 157 A.3d 508 (Pa. Super. 2017) (standard of review for sufficiency challenges)
- Commonwealth v. Snell, 811 A.2d 581 (Pa. Super. 2002) (procedures and standards for breath test admissibility)
- Commonwealth v. McGinnis, 515 A.2d 847 (Pa. Super. 1986) (breath test results inadmissible when not complying with statutory requirements)
- Commonwealth v. Barlow, 776 A.2d 273 (Pa. Super. 2001) (noncompliance with breath-testing regs affects admissibility, not just weight)
- Commonwealth v. Bristow, 538 A.2d 1343 (Pa. Super. 1988) (reliability/credibility issues are for sufficiency review context)
- Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009) (weight-of-evidence claims must be preserved with a post-trial motion)
- Commonwealth v. Speights, 509 A.2d 1263 (Pa. Super. 1986) (breath test results, if admissible, are sufficient proof of BAC; weight is for factfinder)