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.
Pennsylvania statutes require that chemical breath tests shall be performed on devices approved by the Department of Health. They must also be calibrated and tested for accuracy within a period of time and in a manner specified by the Departments of Health and Transportation. 75 Pa.C.S.A. ยง1547 (c)(1). This statute is often the most crucial aspect of any underage drinking prosecution. Recent case law has dictated that when the Commonwealth fails to prove that the device at issues was not approved by the Department of Health and Transportation and not calibrated properly and was the critical evidence of guilt then the result of such a test will not be allowed. Commonwealth v. Brigidi, 977 A.2d 1177, 1182 (Pa. Super. 2009). This of course relies on the fact that the defendant avoids admitting that they actually consumed alcohol. If the police fail to show that the PBT was calibrated and approved then the defendant will most likely be acquitted of underage drinking.
The punishment for underage drinking often results in a significant fine and license suspension, so if you have been arrested for underage drinking or DUI in Pennsylvania contact Jason R. Antoine.
