In an attempt to clear up confusion regarding blood-alcohol content testing conducted at Good Samaritan Hospital, Lebanon County's four judges have issued a ruling that provides guidelines for the hospital and prosecutors.
The order, dated Feb. 1, reviews "the tortuous evolution of the law pertaining to BAC testing in Lebanon County" and is a response to a request for a hearing by the Lebanon County District Attorney's office on eight separate driving-under-the-influence cases.
The judges did not grant a hearing and chose instead to issue procedural instructions.
"For any BAC test at the GSH to be admissible, the amount of blood sample and amount of (trichloroacetic acid) utilized must comply with the operating manual for the Siemens Dade Dimension machine used at the GSH," the ruling said. "This is not a decision about which we will compromise."
According to the court order, hospital technicians have been using smaller blood sample sizes than recommended by Siemens to do testing.
And that frustrated the judges.
"We were not pleased to learn that the GSH was not even following the operating manual of its own BAC testing device," the judges wrote.
William Mulligan, vice president for strategic planning and marketing for Good Samaritan Health System, defended the hospital's past methodology and said the hospital will comply with the order.
"There is a ratio of one part blood to two parts of chemical agent," Mulligan said, explaining that the
Good Samaritan Hospital's BAC procedure is audited by the state Department of Health three times a year.
"We have been using the process and methodology for years," Mulligan said. "The state has verified we are providing accurate results."
Mulligan added that increasing the sample size will have an impact on the cost of testing because more chemical will be used.
"I know their results are accurate," Lebanon County District Attorney David Arnold said Thursday of the hospital's blood tests.
"I don't believe the ruling is going to impact any prior convictions," Arnold said. "I think we'll be fine with our prosecutions."
A state Superior Court ruling requires "converting evidence" in order to have BAC test results admitted in court. The converting evidence refers to the difference between ethanol concentrations in supernatent (the liquid lying above a solid residue after centrifugation) and whole blood.
Arnold believes the Good Samaritan tests have been accurate on a 1 to 1 ratio, citing Department of Health test results.
The Lebanon judges decided that a mathematical conversion application of 0.91 would constitute "sufficient 'converting evidence' to support a test of supernatant" at the hospital. As an example, a blood-alcohol content result of 0.200, multiplied by the conversion factor of 0.91, would produce a BAC of 0.182. For context, the legal limit before it's DUI in Pennsylvania is 0.08.
Testimony from an expert chemist is not required in every case, the judges ruled.
The order acknowledged that "open questions remain in Lebanon County regarding the BAC testing process."
"We still do not know for sure whether a mathematical reduction of the GSH supernatent testing result will be required," the judges wrote. "Likewise, we do not know if testimony from an expert chemist ... in support of a 1:1 ratio between supernatent testing and blood alcohol results will be deemed viable."
As a result, the judges wrote that "a definitive answer to these questions must await a published proclamation from the Pennsylvania Superior Court and we still anxiously desire that either the Commonwealth or some Defendant will provide the Superior Court with the opportunity to issue a binding published opinion."
Despite the uncertainty, "BAC testing in Lebanon County does not have to remain a tenuous proposition," the judges wrote. "We cannot imagine that it would be onerous for a laboratory supervisor and/or pathologist to receive training regarding supernatent testing and conversion formulas applicable to that supernatent testing."
Defense experts "appear to acknowledge that the conversion factor could be 0.91," the order said.
Reducing the testing results "by only a minimal amount would pale in comparison to the consequences that would result if all BAC testing at the Good Samaritan Hospital were to be rejected."
An April order issued by Judge Bradford Charles "freely acknowledged the inconsistent judicial decisions on BAC testing" that have been presented both by Lebanon County judges and the Superior Court.
Although complete answers are not available for every question, the judges believe enough information is now available to develop an exceptional protocol for BAC cases without the need for expert testimony from chemists.
"BAC testing has been a problem in Lebanon County for several years," the judges wrote. "We conclude that the Commonwealth now has the necessary tools to fix this problem and we urge it to do so sooner rather than later."
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