# Commonwealth v. Stoops > Superior Court of Pennsylvania · December 10, 1998 · 723 A.2d 184 URL: https://www.frixlaw.com/law-library/cases/4956136 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Daniel Clyde STOOPS - **Court:** Superior Court of Pennsylvania - **Decided:** December 10, 1998 - **Citations:** 723 A.2d 184; 1998 Pa. Super. LEXIS 3898 - **Precedential status:** Published - **Opinion:** Dissent by Eakin - **Judges:** Eakin, Olszewski, Schiller - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4956136 ## How later opinions describe it (automated extraction) - finding a suppression issue preserved where it was raised in the defendant’s post-hearing brief (filed before the court denied the motion), the Commonwealth did not object to the defendant’s raising of the claim in this fashion, and an evidentiary record had been adequately de… ## Opinion text EAKIN, J., dissenting: I cannot find the record of the officer’s compliance with the regulations inadequate. Accordingly, I must dissent. I cannot agree Judge Connelly concludes the machine did not properly clear residual alcohol; while the majority so finds, I cannot locate this in the record. His opinion states this is appellee’s allegation, but nowhere does the judge adopt that allegation - in the end, he says only “the Commonwealth has not put forth any evidence to adequately demonstrate its substantial compliance with the regulations.” While the evidence is muddled in its presentation, much of the specific testimony coming during cross-examination, the evidence of compliance is nevertheless there. On the air blank matter, the record shows: 1:22 accuracy test complete (N.T. 58,80) 1:23 air blank test (N.T. 59-60,80) 1:37 first “real” test (N.T. 61,80) 1:39 air blank test (N.T. 63,80) 1:41 second “real” test (N.T. 63,80) 1:43 accuracy test (N.T. 64,80) To say the Commonwealth “did not put forth any evidence” on this point is not consistent with this record, which contains everything required. There was an opening accuracy test, two “real” tests, each preceded by an air blank test, and a closing accuracy test. What is lacking, I cannot say. The only significant 'confusion came from the printouts, and if there were discrepancies to be explained, the court should have permitted that explanation from Lt. Dombrow-ski. He was present in the courtroom, ready to explain the idiosyncratic printouts of this machine; the proffer of his testimony appears sufficient. Where the suppression court concludes the Commonwealth failed to *190 present evidence of compliance, and the court declines to allow that very evidence, the decision is flawed. On the “20 minute” question, the defense raised the issue sufficiently to have it considered, but the defense also pointed out the impossibility of such a violation with its own question: “Can you tell the court how you were giving breath tests to Mr. Swope at 1:22 and 1:23 in the morning when he was still down at the scene taking field sobriety tests?” (N.T. 69). The answer is obviously that he was not taking sobriety tests then. We know the sobriety tests were over well before then, proving a divergence between the watch on one officer’s wrist and the internal clock in the machine. The actual time of any of this is irrelevant - we are concerned about the length of time between the stop and the first “real” test. We know there were 15 minutes between the first accuracy test and that “real” test, as these times come from the same source, the machine itself. We also know there was about a minute between the first contact with Mr. Swope and the field sobriety test (N.T. 28), that he'was at the staging area another five to ten minutes (N.T. 33), and that it took another “minute or two” to reach the location of the machine (N.T. 34). Judge Connelly did not find any of these times incredible - he focused on an estimate of first contact and contrasted it with the eventual printout on the machine, which is illusory. This uncontroverted evidence shows at least seven minutes and up to thirteen minutes expired between the stop and the first accuracy test. If the accuracy test was complete the instant Mr. Swope came in the door of the fire station, the record shows at least 22 minutes of observation, not 15. The watch of the first officer and the internal clock of the machine simply weren’t synchronized; as counsel’s own question shows, the contrary is impossible. As I find sufficient evidence of regulatory compliance, I would reverse the learned suppression court and allow this valid test to be admitted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4956136. Public record. Not legal advice.