§ 5.103. Blood tests for blood alcohol content.
Equipment used for blood analysis to determine the amount of alcohol in a person’s blood which performs the analysis by means of gas chromatography, enzymatic procedures, distillation procedures or diffusion procedures is approved by the Department provided that:
(1) The equipment is located within a clinical laboratory currently licensed by the Department.
(2) The particular brand or model of equipment used and a reagent or procedures relating thereto have not been prohibited by specific notification of the Department under § 5.46 (relating to reagents and equipment).
(3) A clinical laboratory performing blood analyses with the equipment has in effect an approval to provide the special analytical services under § 5.50 (relating to approval to provide special analytical services).
Source The provisions of this § 5.103 adopted January 27, 1978, effective January 28, 1978, 8 Pa.B. 247.
Notes of Decisions A blood serum analysis was erroneously suppressed since the trial court improperly concluded that regulations regarding blood alcohol testing had not been promulgated. Commonwealth v. Dagon, 605 A.2d 360 (Pa. Super. 1992).
A driver’s failure to provide two vials of blood for alcohol testing purposes under standard procedure of local police department, was not refusal to complete blood test for purposes of implied consent provisions since the Department failed to promulgate regulations for determining what constitutes completion of a blood test. Murray v. Commonwealth, 598 A.2d 1356 (Pa. Cmwlth. 1991).
Testimony from a hospital medical technologist regarding the hospital’s procedure for updating its renewal certificate from the Department of Health was sufficient to meet the licensing requirements of this section. Commonwealth v. Dungan, 539 A.2d 817 (Pa. Super. 1988).
A blood test utilizing an enzyme reaction was an analysis by ‘‘enzymatic procedures’’ which met the requirements of this section. Commonwealth v. Dungan, 539 A.2d 817 (Pa. Super. 1988); appeal denied 559 A.2d 34 (Pa. 1989).
Inasmuch as each time it sent in proficiency test results, hospitals had notified Department of Health that it was using a particular type of machine, and inasmuch as the Department had not notified the hospital, under this section, that use of the machine was prohibited, the court could find that the equipment was acceptable. Commonwealth v. O’Hayer, 497 A.2d 649 (Pa. Super. 1985).
Cross References This section cited in 28 Pa. Code § 5.101 (relating to purpose); 28 Pa. Code § 5.102 (relating to equipment and methods for laboratory analysis of breath samples); 58 Pa. Code § 51.51 (relating to chemical tests); and 58 Pa. Code § 131.5 (relating to chemical tests).
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