Recently in Chemical Testing Category

September 26, 2011

Always Plead NOT Guilty to Pennsylvania Underage Drinking. PA Supreme Court Case Makes Portable Breath Testing Devices Inadmissible in Court!


When I worked in the District Attorney's Office in Chester County, I prosecuted several underage drinking cases and they would usually go down as follows. A cop would bust a party at a frat house or apartment. Let's say it happened in West Chester. They would always line the kids up and make them stand against a wall. The cops would then id the kids and if they were under 21 they would administer what is called a portable breath test or "PBT" for short. This test is similar to a breathalyzer used in a DUI prosecution. The test requires the subject to blow into a mouth piece. Once the subject blows, it will immediately give the officer a digital blood alcohol concentration (BAC) reading. This test works similar to a breathalyzer but it is not nearly as accurate. The test is convenient for police because it is easy to administer and it saves the officers time. Unlike a breathalyzer or blood test in a DUI prosecution, there was no necessity to bring the underage drinker back to the station to administrate the test. All of the students at the party could be tested and cited on spot.

When I was a prosecutor it was easy for police to obtain underage drinking convictions in court. All the police had to prove was that you were under 21 and that the PBT showed a positive reading. Last October of 2010, the Pennsylvania Supreme Court Case of Commonwealth v. Brigidi came out and changed everything. In this case, the Pennsylvania Supreme Court states that PBT's are NOT admissible in a judicial proceeding for evidentiary purposes. This means that PBT's should not be admitted into evidence in an underage drinking case.

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September 19, 2011

I Refused the Breathalyzer in a Pennsylvania DUI Case and the DUI Case Was Thrown Out, Will Penndot Still Suspend my License? Part II of II

Continued from the September 16th blog....

Part II Question: How Can Your Office Beat a License Suspension for Refusing a DUI Chemical Test?

Answer: Here are 5 ways our office maybe able to beat your license suspension for refusing a DUI chemical test. This list is not exhaustive. Each case is different and you should have a Pennsylvania DUI lawyer evaluate your case.

1) Our office may be able to argue that the officer did not have reasonable grounds to believe you were operating the vehicle while under the influence. Officers are trained to write in their police reports boilerplate language such as "the suspect has slurred speech and bloodshot eyes." If this is the only evidence the officer had to prove his case, your civil license suspension case could be beat. Also, if you were required to perform the field sobriety tests on an uneven or rocky surface and the test results were not accurate this could also be grounds for a valid license suspension appeal.

Continue reading "I Refused the Breathalyzer in a Pennsylvania DUI Case and the DUI Case Was Thrown Out, Will Penndot Still Suspend my License? Part II of II" »

September 16, 2011

I Refused the Breathalyzer in a Pennsylvania DUI Case and the DUI Case Was Thrown Out, Will Penndot Still Suspend my License? Part I of II

Answer: Unfortunately yes. If your Pennsylvania DUI is thrown out (aka - the charges were withdrawn or you were found not guilty) and the police officer sends the refusal paperwork to Penndot, Penndot will still suspend your license for refusing chemical testing. Pennsylvania is an implied consent state. Per the Pennsylvania Motor Vehicle Code, any person that drives a car in PA, is deemed to have given consent to submit to a chemical test of their blood, breath or urine for the purpose of determining the presence of alcohol in their blood. If you refuse the breathalyzer, Penndot will suspend your license for a period of 1 year for a first offense DUI and 18 months for a second or subsequent DUI or refusal.

Continue reading "I Refused the Breathalyzer in a Pennsylvania DUI Case and the DUI Case Was Thrown Out, Will Penndot Still Suspend my License? Part I of II" »

June 5, 2011

Are You Eligible for a DUI Retrial in Philadelphia Because of an Improperly Calibrated Breathalyzer Machine?

Were you recently arrested for driving while under the influence? Human error in calibrating Breathalyzer machines in Philadelphia, Pennsylvania during 2009-2010 led to incorrect blood alcohol concentration (BAC) readings that may affect thousands of cases in the city. According to the Philadelphia Inquirer, an internal review by the District Attorney's office found that four of eight police Breathalyzers were not properly calibrated, affecting over 2000 DUI cases between September 2009 and November 2010. Instigated by a criminal defense attorney who questioned the accuracy of the breathalyzer readings used in the prosecution of his client's case, the investigation by the Philadelphia DA's office revealed problems that threaten to compound Philadelphia's already severe problems with trial backlogs as cases are retried. Moreover, the cost of judgments or settlements in suits from those who were jailed on the basis of the faulty evidence from the improperly calibrated machines could end up hurting the city financially at a time when it can least afford it. See also the ABC news report on this topic.

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March 31, 2011

Was Your BAC Under the Legal Limit (.08) in Pennsylvania? Think You Won't Be Prosecuted for DUI? Think Again. (Part I of II)

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.

Continue reading "Was Your BAC Under the Legal Limit (.08) in Pennsylvania? Think You Won't Be Prosecuted for DUI? Think Again. (Part I of II)" »

June 17, 2010

Implied Consent Law for DUI in Pennsylvania

Pennsylvania's implied consent law is a civil penalty applied by the Pennsylvania Department of Transportation that requires all motorists to submit to a chemical test of your breath, blood or urine if you are arrested for DUI. It is the duty of the police officer to provide you a simple warning that your operating privilege will be suspended upon refusal to submit to chemical testing.

Chemical testing can come in the form of a breath test, urine sample or through blood testing. Refusal to submit to these tests after you have been arrested for DUI in Pennsylvania can be punished by a one-year driver's license and up to three days in prison. For this reason my office recommends to clients that they do no refuse to submit to these tests.

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