May 2010 Archives

May 28, 2010

Underage DUI in Pennsylvania

Being pulled over under suspicion of DUI provides its own legal mine fields, however, being pulled over under the suspicion of DUI while under the age of 21 only compounds the problems. While the maximum blood Alcohol Level for those over the age of 21 in PA is .08, it is only .02 for those who are underage. A .02 can be the equivalent of having one beer over an hour prior to operating a vehicle depending on the minor's body weight and how much he or she had to eat. While the police procedure for DUI stops is the same for minors and adults, those who are under 21 will often be cited for underage drinking even if the PBT gives a reading under the legal limit for DUI, .01 for example.

The Pennsylvania Superior Court has held that the offense of underage consumption of alcohol is established when evidence of alcohol ingestion obtained from a PBT device is combined with evidence of a defendant's minority age. These elements of proof make it relatively easy for police to prove underage drinking. However, there are a few areas where defendants may have the ability to combat an underage drinking charge. Because a Portable Breath Test (PBT) is often unreliable in accurately providing the level of alcohol in one's blood stream, these test are not sufficient to prove guilt in DUI prosecutions. However, they are accurate enough to show the presence of alcohol in underage drinking cases. When the PBT does not meet the specific standards laid out by the Commonwealth of Pennsylvania the defendant may have the ability to fight the underage drinking charge.

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May 26, 2010

The Holiday weekend in Pennsylvania brings fun in the sun along with DUI checkpoints

The warm days of summer are quickly approaching! This means parties and barbeques with family and friends. It means drinks by the pool and early evening visits to the deck at your local watering hole. With the upcoming holiday weekend, along with what is sure to be an exciting weekend for Philadelphia hockey fans, it also means that local police departments will be setting up DUI checkpoints throughout the area. As the weekend approaches, well before you don your swim trunks and sandals or your best orange and black Flyers shirt, be sure to check your local newspaper for public notification of the potential locations for DUI checkpoints. The Pennsylvania Department of Transportation will also publicly notify upcoming checkpoints. Rarely will either of these disclose the exact location and time, however, it is a good idea to be aware of what towns and areas in they will be located. If you decide to party this holiday weekend, my office suggests the best way to avoid a DUI prosecution is to designate a sober driver. However, if you do get caught at one of these checkpoints and have had a few too many, hiring quality legal representation is ideal--there are strict rules governing police officers that conduct these checkpoints and their mistakes may provide you with legal options.

In order to comply with Federal and state Constitutional rights against search and seizures, Pennsylvania police officers must adhere to what are commonly referred to as the "Tarbert-Blouse" guidelines (named after a series of Pennsylvania State Supreme Court cases dealing with checkpoints in the 1980's).

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May 23, 2010

Driving, operating or actual physical control of an automobile can still equal DUI in Pennsylvania

While most people are familiar with the blood alcohol requirements of a DUI, what many don't realize is that you don't actually have to be driving a vehicle to be convicted. In Pennsylvania there are two aspects to a DUI prosecution: impairment by alcohol or control substances AND control of a motor vehicle. The Pennsylvania DUI statute says that an individual may not drive, operate or be in actual physical control of the movement of a vehicle while intoxicated.

The obvious and most common aspect of operation is what most people think of--driving down the road, in full control of steering and operating the vehicle. What some may not know is the broader concept of "operating" the vehicle. Prosecutors are able to show control of a motor vehicle even when it is stationary with only the engine running.

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May 17, 2010

Pennsylvania DUI: Don't Do the Cops' Job For Them!

If you have ever been pulled over for a minor traffic violation such as speeding, you already know that most of the time the first words out of the officer's mouth are, "do you know why I pulled you over?" Unfortunately it's most people's instinct to respond as honestly as possible even though they know that they have done something wrong. Police officers already know this, and they rely on that natural instinct as an investigative tool.

If a police officer has reason to suspect that a driver may have been drinking alcohol (i.e. late at night, seen leaving a bar, unusual driving) the next questions will be, "Where are you coming from?" and "Have you been drinking?" DO NOT DO THE OFFICER'S JOB FOR HIM. As a former prosecutor I know that the next words coming out of your mouth can make or break a case.

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May 14, 2010

Maybe Judges Shouldn't Believe Everything the Police Say in DUI Cases

In order to be convicted of a Pennsylvania DUI, the police must have reasonable suspicion to pull you out of the vehicle to conduct field sobriety tests. At the police academy officers are trained to look for clues that you are intoxicated. The clues clues usually are: strong odor of alcohol, glassy eyes and slurred speech. The police always write these clues down in their police report to cover themselves in court. Like clockwork, every DUI police report I ever read said "there was a strong odor of alcohol coming from the vehicle, the defendant had glassy eyes and slurred speech." In the legal world this is what lawyers call "boiler plate" language. Boiler plate language means standard words put in a document to cover the author's rear end. The author puts these words in the document without even thinking about it.

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May 10, 2010

Pennsylvania Case Law Update Part II: State Representative Wishes to Overturn Commonwealth v. Haag with New Legislation

Rep. Seth Grove of York County, PA would like to overturn what he characterizes as a "DUI Loophole." He is referring to the new case, Comm. v. Haag that was decided last year by the Pennsylvania Supreme Court that shields certain repeat DUI offenders from the recidivist sentencing enhancements of section 3806 of the Pennsylvania Vehicle Code. Comm. v. Haag stands for the proposition that a DUI offender must be convicted of a prior DUI offense, rather than arrested for a prior DUI in order for the recidivist sentencing enhancements to apply.

Rep. Grove introduced a piece of legislation that has been approved by the House Transportation Committee adds language that defines a prior DUI offense as a violation that occurred prior to the sentencing of the subsequent offense. This would in effect hand down lengthier mandatory sentences for DUI drivers that get caught driving under the influence two or more times in a row. The bill needs to be approved by the Pennsylvania House and Senate before it can be sent to Governor Rendell for his signature.

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May 3, 2010

Pennsylvania Should Follow the Lead of Other States in Ignition Interlock Programs for DUI Convicted Drivers

In 2009 many states passed legislation affecting their ignition interlock programs and reducing hard time license suspension for DUI convicted drivers. States such as California, Illinois and New Mexico passed new legislation making certain first offenders ignition interlock eligible. There are currently 24 states that have new ignition interlock bills pending before their legislatures. In the past decade, ignition interlock systems have advanced, become more accurate and more cost effective. Some systems need recalibration less frequently. In 2009 Iowa approved a law that allows interlock devices to be calibrated every 180 days rather than every 30 to 60 days.

Pennsylvania drivers face severe license suspension penalties for a first or subsequent DUI offense. Many times there are no alternatives to suspension and drivers cannot get to work. In PA, ignition interlock is considered a driver's license restoration requirement rather than a substitute for license suspension. Most first and second time DUI offenders face a one year license suspension and are not eligible for ignition interlock until the mandatory one year license suspension is over. Once the one year license suspension is completed, the offender must go through an additional one year of ignition interlock to restore their operating privileges.

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