Imagine, you are on your way home from a casual happy hour with co-workers. You get pulled over by the local police department in your Pennsylvania county on suspicion of drunk driving. When you get pulled over, you know you've had a few drinks too many to be driving. You are a bit nervous and scared, but you manage to maintain your composure. You make sure to treat the police officer respectfully and follow all of his instructions. You know you aren't completely intoxicated and can still function. The cop asks you to step out of the vehicle. He asks "have you been drinking sir." You respond, "yes, officer I had a couple beers at the bar down the street." Of course you think honesty is the best policy. After that, the officer asks you to perform certain balancing and coordination tests. He calls them "field sobriety tests." You perform all the field sobriety tests to the best of your ability. You walk nine steps heel-to-toe successfully and you stand on one leg successfully for 30 seconds. You even touch your fingertip to your nose every single time. Then, the officer says "sir, you are under arrest on suspicion of driving under the influence of alcohol, I am going to take you back to the hospital for chemical testing of your blood." The cop then handcuffs you and transports you to the hospital in the back of the police car to draw blood. When you get to the hospital, you agree to submit to a blood test. The officer reads warnings to you that say you will lose your license if you don't give blood. You are then brought back to the police station, fingerprinted and booked. This is your first encounter ever with law enforcement. You have never been through anything like this before. The next day you wake up and go to work. You try to act like everything is normal but you can't stop thinking about your DUI. All the ramifications of this are running through your head. "What if I go to jail? Will I lose my license? Will I lose my job? Will I have a criminal record? I need to speak to a lawyer."
A week later, after not hearing anything about your DUI, you get a notice in the mail. It says your case is set for a preliminary hearing in two weeks at your local District Court. You show up to your court date. By this time you've hired an attorney and at the preliminary hearing, the police officer produces the lab report and shows it to your lawyer. Your Blood Alcohol Concentration (BAC) was a .072%. You know the legal limit in Pennsylvania is .08%, you don't have to be a lawyer to know that. You say to yourself "thank God, I'm under the legal limit, this is all over now." I've got some bad news for you, think again.
Common sense would tell a person that if the law says .08% is the threshold for drinking and driving, your case should be dismissed if you have a BAC of .072%. Not in Pennsylvania. In PA, there is a "catch all" provision known as the "General Impairment" statute. It can be found in the Pennsylvania Vehicle Code at 75 Pa.C.S. Sec. 3802(a). Basically, it means that if the police officer and/or the District Attorney's Office thinks that you have been drinking enough to the degree that you were not able to safely drive your vehicle, they may still prosecute you and the courts may convict you under this provision. This provision gives the police a lot of discretion and a lot of leverage with defendants. Keep in mind that it is not mandatory that the Commonwealth prosecute you under this provision. It is always discretionary with the DA's office. One would like to think that if it was your first offense and your BAC was so low, the DA's office would cut you a break and let you go. The answer to this question depends on which county you are in. The DA's office in every county treats these types of cases differently.
Although I have taken on criminal cases in many jurisdictions across Pennsylvania, I primarily practice law in Chester County and Delaware County. I used to be an Assistant District Attorney in Chester County and my office is located in Delaware County. These jurisdictions couldn't be more different. When you cross the county line you would think you are practicing law in another state. In the past 6 months, I represented two first time offenders both with virtually identical BAC's under .08%. One was in Chester County and the other in Delaware County. Let's start with the Delaware County case first. My client was charged with a first offense DUI, Careless Driving and failure to use his turn signal. His BAC was a .073%. When I showed up to the preliminary hearing I asked the DA to dismiss the case. He offered a little bit of resistance, so he came back and offered a plea bargain to the summary offense of Careless Driving. I haggled with him for a little while because I didn't want my client to get the points on his license that come with a Careless Driving conviction. So, after some persistence, I convinced the DA to allow my client to plead out to the turn signal charge. I was happy with this result and my client was too. I think Delaware County can be pretty reasonable. I attribute this to the fact that they have a high volume of cases because of problem areas like Chester and Darby and must move cases. Now let's move across the county line to Chester County which is a whole other ballgame.
To Be Continued.........
Contact Jason R. Antoine, Pennsylvania DUI Attorney if you or someone you love has been charged with DUI and possibly other crimes.
***some of the facts in the above article may have been changed in order to protect client confidentiality.***
