The Court in Stetler v. CDL Medical Technologies, Inc., 63 Pa. D. & C.4th 270 (Pa. Com.Pl. 2003) set forth a clear standard for the admission of blood alcohol content into evidence to establish intoxication where: (1) the blood alcohol content is over .10 percent, and (2) there is corroborative expert testimony sufficient to establish that the person's blood alcohol content rendered him incapable of safe driving. Stetler v. CDL Medical Technologies, Inc., 63 Pa. D. & C. 4th at 277, Affirmed by 852 A.2d 1264 (Pa. Super. 2004); Appeal Denied by 860 A.2d 124 (Pa. 2004).

The Stetler Court reached this holding even though the factual circumstances of the accident itself were insufficient corroborative evidence necessary to have the BAC introduced. Specifically, the Court noted that, independent of the blood alcohol content, there was no evidence that decedent was intoxicated; there were no eyewitnesses; there were no pre-impact skid marks left by the motorcycle; no one was able to produce any evidence establishing that decedent was drinking or at a bar prior to the accident; and there was no evidence of erratic driving nor any physical characteristics of decedent suggesting he was under the influence. Thus, there was no evidence of impairment, loss of visual or auditory perception, loss of alertness, or diminution in judgment, except the circumstances of the accident itself. Id. at 274 – 275.

In order to satisfy the second prong of the test, the Court found it necessary to hold an evidentiary hearing, where the defendants were required to produce sufficient evidence, through expert testimony, to establish: (a) the accuracy of the BAC; and (b) intoxication of the decedent. Id. at 278. Since there was no evidence of time frame for consumption of alcohol, both experts were in conflict on the issue of the accuracy of the BAC. In fact, the only testimony given as to the time frame of intoxication was that up to within 30 minutes of the accident there was no evidence that the decedent had taken any alcohol. “While no one knows when the decedent consumed alcohol, plaintiff’s own evidence shows that it was not immediately prior to the accident….” Id. at 282. Both experts did agree, however, that if the BAC of .15 percent was accurate, then decedent was intoxicated to a degree that he was unfit to drive. Id. at 278.

Despite the apparent inability to pinpoint decedent’s BAC at time of accident, the Court found credible defendant’s doctor’s opinion that the alcohol had been absorbed into the blood stream prior to decedent’s death and that the blood alcohol test was “reliable and scientifically reliable, an appropriate indicator of the decedent’s true BAC.” Id. at 281. Lastly, the Court stated that Defendant’s evidence (testimony of coroner who drew blood) was sufficient to establish that the blood alcohol test taken in this case was reliable.

Prior to this ruling, the general standard for the admission of evidence of intoxication was established by the Pennsylvania Supreme Court in Fisher v. Dye, 386 Pa. 141,125 A.2d 472 (1956):

“While proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”

Fisher v. Dye, 386 Pa. at 148, 125 A.2d at 476. See also Billow v. Farmers Trust Compalo,, 438 Pa. 514, 266 A.2d 92 (1970) (BAC of .10 percent or more, when standing alone, is insufficient to show degree of intoxication which proves unfitness to drive and therefore is inadmissible); Morreale v. Prince, 436 Pa. 51,258 A.2d 508 (1969). Further, the case of Ackerman v. Delcomico, 486 A.2d 410 (Pa. Super. 1984), which states:

"The theory behind allowing a blood alcohol level to be admitted into evidence in a civil case is that it is relevant circumstantial evidence relating to intoxication. However, blood alcohol content alone may not be admitted for the purpose of proving intoxication. There must be other evidence showing the actor's conduct which suggest intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted." Id. at 414.

However, the Stetler Court distinguished these cases as based on different set of facts. In Billow, evidence of a BAC of .14 percent was excluded because there was no evidence presented to show that a BAC of that level established unfitness to drive. The moving party's expert offered an opinion that the BAC of .14 percent would render the person "affected" in his driving, falling short of the requirement of establishing "a degree of intoxication which proves unfitness to drive." Thus, the Billow court's holding was limited to its determination that the expert's testimony was insufficient. It did not speak to the question of whether independent corroborative evidence, beyond a sufficient expert opinion, is necessary to permit a blood alcohol reading to be admitted. Stetler v. CDL, 63 Pa. D. & C. 4th 270 at 276.

Secondly, holdings in several other cases state that expert testimony regarding the BAC level may independently establish proof of intoxication. In addressing the need for additional evidence beyond the mere reading of the BAC, the court in Locke v. Claypool, 627 A.2d 801, 805 (Pa. Super. 1993), stated:
The blood alcohol content was inadmissible because it was below .10 percent (.06 percent) and was below any presumptive intoxication level. Under these circumstances, expert testimony, without any objective indicia that Locke was unfit to operate his bike was entirely speculative and highly prejudicial. (426 Pa. Super. at 535-36, 627 A.2d at 805).

"In Gallagher v. Ing, 367 Pa. Super. 346, 532 A.2d 1179 (1987), alloc. denied, 519 Pa. 665, 548 A.2d 255 (1988), this court stated:

"'the "other" evidence (reference to Ackerman v. Delmonico, 486 A.2d at 414) necessary to render admissible a blood alcohol content in excess of .10 percent, it has been held, may consist of expert testimony interpreting the significance of the results of blood alcohol tests with respect to unfitness to drive.' 367 Pa. Super. at 353, 532 A.2d at 1183 . . . . The rationale behind this rule is that when a person's blood alcohol content exceeds .10 percent, our legislature has determined that he is presumptively unfit to drive. 75 [536] Pa.C.S. §1547(d)(3). The 'presumption' of unfitness to drive, however, is inapplicable to civil cases, and a jury may not be instructed regarding the presumption. Suskey v. Loyal Order of Loyal Moose Lodge No. 86, 325 Pa. Super. 94, 472 A.2d 663 (1984). Therefore, expert testimony is helpful to explain the significance of a blood alcohol content [of] .10 percent, without reference to the 'presumption.'

Note also the case of Beneshunas v. Independence Life and Accident Insurance Company, 354 Pa. Super. 391, 397 n.1 512 A.2d 6, 9 n.1 (1986), where in a footnote, the court states: "we disagree with the trial court's suggestion that appellant presented no evidence that McGurl's intoxication, if such was the fact, had contributed causally to the accident. McGurl's blood alcohol content, as shown by blood and urine tests, was sufficient to create an inference that McGurl was unfit to drive a motor vehicle."

Lastly, though the argument can be made for admission of the BAC under the Stetler test, there is always a concern that whatever probative value such evidence may have is clearly outweighed by the danger of unfair prejudice and confusion of the issues. Pennsylvania Rule of Evidence 403, which provides, “[a]lthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…”