The Herald, Sharon, Pa.

Local News

October 2, 2012

Evidence overcomes mistaken identity claim

By Joe Pinchot Herald Staff Writer

SHARON — State Superior Court said prosecutors had sufficient evidence to prove that a woman had driven while drunk, despite her testimony that a policeman got the wrong person.

Robin R. Elhady, 35, of Hermitage, was arrested Aug. 17, 2009. Sharon police patrolman Ryan Chmura said he was at Meek Street and North Sharpsville Avenue when a vehicle sped past. He followed it into the parking lot of the A.C.T. bar on Sharpsville Avenue. Elhady got out and approached him. Chmura administered field sobriety tests, which she failed and she was charged with drunken driving after a blood test showed she had a blood-alcohol level of 0.14, higher than the standard of .08.

At trial, Elhady testified that she had been drinking at the bar for about four hours and had gone outside to get a pack of cigarettes from her car when she saw Chmura.

“Elhady testified that this was clearly a case of mistaken identity, since she had not been driving in the hours prior to her arrest, and that Officer Chmura had not followed her in his vehicle,” according to the opinion posted Friday at Superior Court Judge Christine L. Donohue, writing for the two-judge majority of a three-judge panel.

“Elhady did not deny that she was intoxicated at the time of arrest,” Donohue said.

Mercer County Common Pleas Court Judge John C. Reed found Elhady guilty of drunken driving and sentenced her to 2 days in jail, 178 days’ probation and a $500 fine and costs.

In her appeal, Elhady, represented by the county public defender’s office, said Chmura testified on cross-examination  that he could have mistaken Elhady for another driver. Donohue said Chmura’s direct testimony was clear: he saw Elhady driving.

Elhady also argued that the blood evidence should not have been admitted because the medical technologist did not measure the alcohol level in whole blood – the blood that flows through the body – but through a process that involves adding a chemical to pull proteins out of the blood and putting the sample into a machine that tests it.

While it appears no appellate court has examined the admissibility of non-whole blood samples under the current drunken driving law, which went effect in 2004, they were ruled admissible under the old law, Donohue said.

Reed said the new law should be considered consistent with the old law.

Donohue said Elhady presented no support to show the General Assembly intended to eliminate testing of non-whole blood samples, and the court supported Reed’s conclusion.

Finally, Elhady said Reed should have granted a delay in the trial so she could obtain the testimony of a witness who could put her in the bar while Chmura said she was driving.

Reed denied the delay because she did not file a notice to present an alibi witness at the time specified in the Pennsylvania Rules of Criminal Procedure, and Superior Court supported the decision.

Judge Gene Strassburger dissented, but his opinion was not immediately available.

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