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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ASHLEY MARIE SCHAEFFER                   :   No. 485 MDA 2018

               Appeal from the Order Entered March 7, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000168-2017


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY SHOGAN, J.:                    FILED MAY 10, 2019

      For the reasons that follow, I respectfully dissent from the Majority’s

conclusion that the results of the blood test must be suppressed.

      Under the Pennsylvania Rules of Evidence, all relevant evidence is

admissible, except as otherwise provided by law. Pa.R.E. 402. Section 1547

of the Motor Vehicle Code addresses chemical testing to determine the amount

of alcohol content of blood or the presence of a controlled substance in a

person deemed to have been driving while under the influence of alcohol or a

controlled substance. With regard to the admissibility of those test results,

Section 1547 provides, in pertinent part, as follows:

      (c) Test results admissible in evidence. — In any summary
      proceeding or criminal proceeding in which the defendant is
      charged with a violation of section 3802 or any other violation of
      this title arising out of the same action, the amount of alcohol or
      controlled substance in the defendant’s blood, as shown by
      chemical testing of the person’s breath or blood, which tests were
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      conducted by qualified persons using approved equipment, shall
      be admissible in evidence.

                                   * * *

            (4) For purposes of blood testing to determine the
            amount of a Schedule I or nonprescribed Schedule II
            or III controlled substance or a metabolite of such a
            substance, the Department of Health shall
            prescribe minimum levels of these substances
            which must be present in a person’s blood in
            order for the test results to be admissible in a
            prosecution for a violation of section 1543(b)(1.1),
            3802(d)(1), (2) or (3) or 3808(a)(2).

75 Pa.C.S. § 1547(c)(4) (emphasis added).

      “The purposes behind [Section 1547(c)] is to outline the necessary

regulations and procedures that have been approved in this Commonwealth

for chemical test results to be admissible in relevant legal proceedings.”

Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008).

The introductory language of Section 1547(c) indicates that breath and blood

tests, which were conducted by a qualified person using approved equipment,

shall be admissible in evidence. Section 1547(c)(4) applies to blood tests for

particular controlled substances or metabolites and directs that “the

Department of Health shall prescribe minimum levels of these substances

which must be present in a person’s blood in order for the test results to be

admissible in a prosecution.” (emphasis added). The statute does not direct

the Department of Health to actually publish those minimum levels, but

merely to prescribe the minimum levels.




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      Regardless, on July 2, 2015, the Department of Health published a

notice of the “Minimum Levels of Controlled Substances or Their Metabolites

in Blood to Establish Presence of Controlled Substance” in the Pennsylvania

Bulletin. The text of the notice, which I conclude is germane to our review,

states:

             Under 75 Pa.C.S. § 1547(c)(4) (relating to chemical testing
      to determine amount of alcohol or controlled substance), as
      amended by the act of September 30, 2003 (P. L. 120, No. 24),
      the Department of Health (Department) is publishing a notice of
      the minimum levels of Schedule I, nonprescribed Schedule II and
      nonprescribed Schedule III controlled substances or their
      metabolites that must be present in a person’s blood for the test
      results to be admissible in a prosecution for a violation of 75
      Pa.C.S. § 1543(b)(1.1), § 3802(d)(1), (2) or (3) or § 3808(a)(2)
      (relating to driving while operating privilege is suspended or
      revoked; driving under influence of alcohol or controlled
      substance; and illegally operating a motor vehicle not equipped
      with ignition interlock).

            Testing for controlled substances in blood is normally a two-
      step process. The first step involves screening of the blood using
      a relatively rapid and inexpensive procedure to presumptively
      determine whether a specimen contains a controlled substance or
      a metabolite of a controlled substance. The second step utilizes
      an alternate procedure to confirm the presence of the controlled
      substance or metabolite that was presumptively detected by the
      screening procedure.       Confirmatory analyses employed to
      substantiate the presence of a controlled substance or metabolite
      are also used to determine the concentration of the controlled
      substance or metabolite. A limit of quantitation (LOQ) for a
      controlled substance or metabolite is the lowest
      concentration that a laboratory can reliably determine. A
      laboratory’s LOQ for each controlled substance or
      metabolite will depend upon the equipment and
      procedures the laboratory employs for confirmatory
      testing.

            Laboratories that operate in this Commonwealth and
      perform analyses of blood to determine controlled substance

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        content must be approved by the Department in accordance with
        28 Pa. Code § 5.50 (relating to approval to provide special
        analytical services) and be listed in notices published in the
        Pennsylvania Bulletin. The minimum levels listed in this
        notice were developed by reviewing the LOQs reported by
        the laboratories approved by the Department to analyze
        blood for controlled substances or their metabolites.
        Laboratories are not required to have LOQs for controlled
        substances or their metabolites that are equal to or below
        minimum levels listed. The levels listed are intended to
        establish the lowest reportable results admissible in a
        prosecution.

              The Department recognizes that testing may be
        conducted for controlled substances and metabolites not
        listed in this notice. When testing is necessary, interested
        parties should contact the laboratory performing the test
        to inquire as to that laboratory’s specific method of testing,
        the equipment used and any policies or procedures
        employed by that laboratory to ensure that the test results
        are valid. In subsequent notices, the Department will revise, as
        needed, the minimum levels of controlled substances or
        metabolites already included in this notice and add new controlled
        substances or metabolites when warranted.

45 Pa. Bulletin 3638 (emphases added). The above language is followed by a

chart setting forth the LOQs for twenty controlled substances and metabolites,

divided into the following classes: amphetamines, analgesics, cannabinoids,

cocaine, hallucinogens, opiates, and sedatives/hypnotics.       45 Pa. Bulletin

3639.

        It is obvious that, for purposes of convenience, the Department of

Health published the LOQs for a limited number of the most commonly abused

substances. The Department of Health explains that the LOQs listed in the

publication “were developed by reviewing the LOQs reported by the




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laboratories approved by the Department to analyze blood for controlled

substances or their metabolites.” 45 Pa. Bulletin 3638.

      The Department of Health also “recognizes that testing may be

conducted for controlled substances and metabolites not listed” in the

published notice. Id. As the Commonwealth explained at the suppression

hearing, “[t]he notice allows for the fact that [the Department of Health] may

not be able to supply, or may not have provided a minimum level for all illegal

narcotics, because at this point we know [new narcotics] keep – [new

narcotics] are continuously popping up, and [the Department of Health] can’t

logically keep up with that.” N.T., 2/27/18, at 10.

      The Department of Health prescribes that, “[w]hen testing is necessary

[on narcotics with LOQs which have not been included in the publication],

interested parties should contact the laboratory performing the test to inquire

as to that laboratory’s specific method of testing, the equipment used and any

policies or procedures employed by that laboratory to ensure that the test

results are valid.” 45 Pa. Bulletin 3638. This direction from the Department

of Health is in keeping with the earlier language in the publication explaining

that “[a] laboratory’s LOQ for each controlled substance or metabolite will

depend upon the equipment and procedures the laboratory employs for

confirmatory testing.” Id.

      In addition, the instructions from the Department of Health to “contact

the laboratory performing the test” ensures that the method employed for


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determining the LOQs for unlisted controlled substances are consistent with

the method that determined the LOQs of the twenty listed substances. Id.

As the Department explains in the publication, “[t]he minimum levels listed in

this notice were developed by reviewing the LOQs reported by the laboratories

approved by the Department to analyze blood for controlled substances or

their metabolites.” Id. Thus, pursuant to Section 1547(c)(4), the Department

of Health has prescribed that the LOQs for each controlled substance or

metabolite, whether published or unpublished, are ultimately determined by

the same method that relies upon consideration of the equipment and

procedures the laboratory employs, and that information is available through

contact with the individual laboratory. Hence, the Department of Health has

satisfied its statutory requirement. Indeed, our legislature made no mention

in the statute of a requirement that the LOQs be published in the Pennsylvania

Bulletin.   Likewise, the General Assembly did not express that a failure to

publish the LOQs act as a bar from admissibility of the test results.

      For these reasons, I conclude that the Department of Health has

satisfied with requirement set forth under Section 1547(c)(4) to prescribe

LOQs for substances that must be present in a person’s blood in order for the

test results to be admissible in a prosecution. Therefore, the test results in

this matter should be admissible.




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