An appeals court reinstated results of a blood-alcohol test for a driver who faces charges that his car struck and killed an 18-year-old McAdoo woman along a highway ramp in Luzerne County two years ago.
The Pennsylvania Superior Court said total circumstances showed that Onix Gorbea-Lespier consented to having his blood drawn for a second test even though state police hadn't given him a second warning.
Last year, a judge in Luzerne County Court suppressed the results of the second test because a state trooper had not repeated a warning that Gorbea-Lespier's driver's license would be suspended if he refused the test.
Gorbea-Lespier, 51, of Mechanicsburg, Cumberland County, awaits trial for homicide by vehicle while driving under the influence and other charges.
The body of Kayla Jean Bahrey was next to his car when state police arrived at the off-ramp of Interstate 81 near mile marker 141 shortly before midnight on July 3, 2011. Bahrey had paused to rest after pushing a friend's disabled car when she was struck by Gorbea-Lespier's vehicle.
While driving to Hazleton General Hospital, a trooper gave a warning to Gorbea-Lespier, who submitted blood for the first test at 12:25 a.m. July 4.
Police led Gorbea-Lespier out of the hospital when they received a telephone call to return for a second test, for which Gorbea-Lespier agreed to give blood 30 minutes later.
A breath test at the scene showed Gorbea-Lespier had a blood-alcohol content of 0.085 percent and one of the blood tests at the hospital read 0.084 percent. The threshold for driving under the influence in Pennsylvania is 0.08 percent.
An opinion issued Tuesday by a panel of three judges in Superior Court said police are not required to give a second warning. The "totality of the circumstances" indicated that Luzerne County Court erred when suppressing the second test, the opinion said.
The opinion noted testimony that Gorbea-Lespier slurred his speech slightly, his breath smelled of alcohol and he said he drank a couple alcoholic beverages at a picnic. Police testified he was cooperative and never disputed that he was driving under the influence of alcohol, the opinion said.
President Judge Correale Stevens wrote the opinion, and President Judge Emeritus Kate Ford Elliott and Judge Judith Ference Olson served on the panel with him.
