A state appellate court has partially overturned the drunken-driving conviction of a White Haven man after determining police failed to obtain a blood alcohol sample within the two-hour time limit required by law.
Jeffrey Olszewski, 50, of Joanne Lane, was charged with two counts of drunken driving and other offenses after he crashed a motorcycle on Crestwood Road on July 2, 2011. He was convicted after a non jury trial before Senior Luzerne County Judge Joseph Augello in February.
According to an arrest affidavit, a Wright Township police officer noticed a strong odor of alcohol on Olszewski as he spoke with him after the crash.
Olszewski was transported to an area hospital, where a blood alcohol test showed his alcohol level was .198 percent, nearly 2 Ā½ times the legal level of 0.08 percent.
Olszewski's attorney, James Haggerty of Kingston, argued the blood alcohol test should be suppressed because the blood sample was not taken until two hours and 40 minutes after the crash. State law requires a blood sample must be taken within two hours unless police can show there was good cause for the delay.
Augello denied the motion before trial, finding that officer was delayed in getting to the hospital by about 30 minutes while he stayed to clear the accident scene.
A further delay developed because a phlebotomist, who draws blood, was not immediately available. Neither of those delays were the officer's fault, therefore the state had met the legal exception, Augello said.
Olszewski appealed that ruling to the state Superior Court, which disagreed with Augello's reasoning.
The court noted other police officers were on scene, which meant the arresting officer could have left for the hospital earlier than he did. In addition, the officer testified he asked for a phlebotomist only once and never advised hospital staff that the two-hour limit was quickly approaching.
Based on those findings, the court said the officer did not exercise due diligence in obtaining the sample. It vacated Olszewski's conviction on one count of drunken driving, which was based solely on his blood alcohol level, but let stand his conviction on a second count of drunken driving, which relates to being incapable of safe driving.
In an interview Monday, Haggerty said he is considering whether to seek a second appeal to dismiss the other count of drunken driving because that conviction was based, in part, the blood alcohol sample, which has now been suppressed.