The Associated Press
PITTSBURGH (AP) - A drunken driving charge was correctly thrown out because police tampered with breath machine records, a state appeals court ruled.
The state Superior Court last week upheld a 2002 decision by Allegheny County Judge John Zottola that dismissed the case against Matthew O’Reilly, 48, of Valencia. County District Attorney Stephen A. Zappala Jr. said he won’t appeal the ruling.
Zottola found that police tampered with the logs associated with a county-owned Breathalyzer machine used by police departments in Kennedy and Stowe townships and neighboring McKees Rocks. While there was no allegation that the log was changed in O’Reilly’s case, O’Reilly’s attorney contended that a pattern of misconduct made the results unreliable - and the appellate court agreed.
“Furthermore, the record contains numerous uncontested instances of deliberate bad faith conduct on the part of the police. This conduct can fairly be imputed to the prosecution,” the appeals court said.
Zottola found the case was hampered by four officers who took the Fifth Amendment against self-incrimination during hearings. A grand jury subpoenaed the four officers and two others to testify in January 2001.
Zappala blamed sloppy record keeping and the lack of officers’ testimony.
“Our concern is that we followed the minimum standard and that needs to be improved upon,” Zappala told the Pittsburgh Post-Gazette for Wednesday’s editions. “I believe it has (improved). We have not had any allegations since that time.”
Breath tests are considered valid if two readings differ by less than two-tenths of a point. O’Reilly’s attorney, Carl Parise, produced court records showing that readings differed by more than two-tenths of a point in at least 10 cases from 1996 to 2000.
Parise said the police log showed that someone changed the numbers so that they fell within the required range so the machine could remain in service.
O’Reilly was arrested by Kennedy Township police in November 1999. He was accused of having a blood-alcohol content of 0.229 percent - more than double the state’s limit at the time of 0.10 percent for drivers.