Category Archives: DUI

Charged with 3rd DUI this past April. Last DUI in 2006. Why?

Q: I was arrested on April 17, 2017 for my third DUI. My first DUI was in 2006. I do not remember the date of sentencing and the docket sheet is not available on the UJS Portal website which has the public records. I also had ARD for my first one. Because I cannot find the date of disposition I do not know if it qualifies for the 10-year look-back. I hired a lawyer and paid him a good sum of money for the preliminary hearing all the while he said he would look into the first DUI. He never did it he always seems to have some an excuse. The preliminary is over and now I am awaiting formal arraignment in a few days on October 31st. I am now paying him more money and he says he cannot find anything out until after the arraignment. He even said that I don’t have to be present for the arraignment which is suspicious to me because I was unaware that the arraignment is where I either plead guilty or not guilty. Either I had my head in the clouds or he didn’t inform me of this. I’ve been doing research and I’m starting to get irritated with him. My last question is if I choose to go with another lawyer can I request a postponement to obtain my records? (West Homestead, PA)

A: It sounds like you should listen to your attorney. In Allegheny County, the defendant need not appear at the Formal Arraignment if an attorney who has entered his appearance handles it. You do not plead guilty or not guilty at your Formal Arraignment. Your attorney may be waiting for a confirmation from the DA. The Allegheny County DA has a department that does nothing but run criminal histories on defendants and they are usually accurate. The DA should have your record at the Pretrial Conference to share with your attorney or shortly thereafter and this will shed light as to whether you have made ten years from date of conviction to date of arrest. If the last DUI was in 2006 and you made ten years, it will be graded as a first offense under the guidelines.

Is Birchfield being applied retroactively in Allegheny County?

Q: Believe it or not I was convicted of 5 first-time DUIs that occurred in 2012. It was a bad period of my life, mostly due to an insane ex who knew the cops and set me up. Coercion to plead guilty occurred. Is Birchfield applied and in what manner? Can I get a revised sentence or new trial? (Pittsburgh, PA)

A: Forget about it. Birchfield v. North Dakota cut some breaks to many DUI defendants in 2016. The case is only applicable to cases that were pending trial or on direct appeal at the time of the decision in June of 2016. Your offense occurred in 2012 and therefore is not inclusive in the scope of Birchfield.

Question about act 122?

Q: Can you complete act 122 without the parole office? I’m not on parole, also what is 21cf sent to PennDOT versus act 122? (Pittsburgh, PA)

A: You receive Act 122 clearance once all your drug and or alcohol treatment has been completed and all fines have been paid. You need to tell your probation officer. The DL-21DF is a PennDOT form which is sent by your County Clerk of Courts to notify PennDOT that all costs and fine have been paid. You can also call the Allegheny County Clerk of Courts and ask to speak to the Act 122 person.

I got three DUIs. Will I get more time for the third one?

Q: I got two DUI charges in Allegheny County with probation. My first DUI was for controlled substance, second for alcohol. I was on probation in Allegheny. I received third DUI for alcohol in a Beaver County. How does that affect my charges and sentence? (Scott Twp., PA)

A: I suggest an attorney. Perhaps one that handles cases in both counties. If you have three pending DUI’s and have not been convicted (pled guilty or found guilty) of any one of them, then they are all considered first-time DUIs. This means obviously the sentence range will be lower. However, a judge will take note that you have three pending DUI’s even if none are considered prior to the others and add a little time to your sentence. As far as probation is concerned, obviously, your probation judge will not be pleased that you committed three DUIs on his or her probation. You could possibly be detained by the probation judge and sentenced to jail time.

Warrant for unpaid fines

Q: I had a DUI in PA I was paying my fines perfectly. I took a better job offer and moved to Colorado. The job didn’t work out as expected and I fell behind in my fines. I managed to get an even better job and inquired how much was still owed. They said I have a warrant for unpaid fines. Would it be a better idea to call the court there and explain my situation or turn myself in here and see if PA even wants to extradite me wouldn’t that end the warrant?

A: You may have a bench warrant. This will sit there forever unless removed by the judge who signed it. Turning yourself in on a warrant may result in you sitting in jail for weeks in CO before PA refuses to extradite you. First, you may want to call your probation officer or the probation department in that county in PA to see if this can be cleared up by a payment. It may or may not work. Next, I would call your attorney in PA or hire an attorney in PA to see if it can be handled through a motion. To have a better chance of removing the warrant, a substantial payment may need to be made. Full payment of all costs, fines and restitution may put the whole matter to rest. Follow your attorney’s advice

My son’s father just got his 2nd DUI

Q: My son’s father just got his second DUI. The first was pretty bad. He had a fleeing and eluding charge that was dropped to a misdemeanor in exchange for 2 months in jail on work release. This time he crashed into someone’s garage, totaled his car, damaged the homes garage and both vehicles inside it. His BAC was a .167 the 1st offense. This time it’s a .141. He has a relatively long criminal record. With a public defender (or per se) how much time could he be facing? (Kittanning, PA)

A:  A second DUI with a BAC between .10 and .159 calls for a minimum sentence of 30 days in jail. Not every county handles their DUI sentencing the same. In the larger counties, there generally are more options for alternative housing and electronic home monitoring. His prior sentence will probably foreshadow his new sentence so if I had to guess I would guess he may get 6 months in jail with some portion of it being work release. He will also have another driver’s license suspension, at least for one year. You really need to talk to an Armstrong County DUI attorney for a more specific answer.

Can I get a charge dismissed for BUI with recordings of FSTs and a BAC of 0.083?

Q: We were stopped by a WCO standing on a dock around sunset for not having our stern light out as we were returning to our dock. WCO checked all safety features with no other violations on the boat. We complied with everything. There were 2 passengers with the driver. The WCO saw open beers on the boat and asked if we had been drinking and we said Yes. He then asked the driver to get off the boat and initiated 3 field tests which we recorded on our phone. It appears that he passed the tests. After the third and final test, the WCO shook his head and said “good.” he then proceeded to a preliminary breath test so driver asked if he has failed the field tests and the response was “I’m going to be honest, you are right on the border” After the prelim breath test, he placed driver under arrest and took him to a police station about 30 mins away to do a data master breath test where results came back 0.083. We have read the margin of error on data master tests is 0.004. Is this a good case for dismissal of charges? (Pittsburgh, PA)

A: Yes, as pointed out, it sounds like you have some good defense issues for trial. It is possible that the WCO will decide not to file, and/or the DA looks at the case and decides not to file given the disputable evidence. However, if law enforcement does decide to prosecute, the case will not be dismissed by a District Justice at the preliminary hearing and either of three things will happen: A) the trial DA will review the case and withdraw it, B) ARD will be offered if the driver qualifies, or C) the driver will go to trial, either jury or non-jury. Scenario “A” is unlikely, but can happen. Consult with a lawyer, preserve your evidence, remember, the WCO are now aware of you and will stop you again if there is probable cause.

What is the usual outcome of BAC .02 or higher 3rd offense in PA?

Q: The father of my kids got another DUI. He never had a license. The first 2 are older but this is his 3rd. His preliminary was waived for court this morning and I’m trying to get an idea of what’s going to happen. Current charges are BAC .02 or higher 3rd offence for DUI general impairment, failure to stop at red signal, illegal turn, following too closely, failure to yield to emergency vehicle and careless driving. (Pittsburgh, PA)

A: If this is a third DUI with a .02 BAC, the sentencing guidelines calls for a 90 day to 5- year sentence and a $1500 to $10000 fine, in addition to a laundry list of other conditions such as a drug and alcohol evaluation, alcohol highway safety classes and of course, probation. In Allegheny County, he may eligible for alternative house arrest or electronic home monitoring. However, if you mean .2, not .02, then the guidelines call for 1 to 5 years of imprisonment, which is normally a state sentence. My advice is to have him represented as early as possible by counsel. He may qualify for DUI court in Pittsburgh. This program keeps the defendant out of jail and at home on electronic monitoring but is an intensive and intrusive method of forcing people to stop drinking. If the person fails to comply with the program, they end up in state prison. Again, an attorney can guide him.

I have a hearing for my ARD probation violation

Q: I am currently in ARD probation for highest rate DUI. My probation officer is requesting to have me removed for drinking. Would it be possible to petition the court to keep me in the program if i seek help for my alcohol problem? (Verona, PA)

A: It may be possible to stay in the program. You will need to be proactive in addressing your issue by seeking treatment voluntarily, possibly even in patient, and provide written proof of such treatment to the judge. Having a lawyer will help you to determine if your particular situation can be explained to the judge and set you in the right direction regarding treatment.

If there is no DUI refusal and the police release you can you still be DUI?

 

Q: I got in an accident because of deer ran out in front of me. I hit a telephone pole and was charged with a DUI, DUI refusal, also reckless driving and careless driving. No DUI refusal form was filled out and the police released me one hour after I was put in the holding cell. They told me I had to walk home if I had no ride. (Jefferson Hills, PA)

A: If you didn’t sign a refusal form, the officer can still testify that you refused blood alcohol or breath testing. The fact that you were released to walk home has no consequence. The police likely had the information they needed to file charges and thought you were sober enough to walk home after a certain point. You will be sent a summons. The other alternative would have been for the police to take you to the county jail to be arraigned in night court and released the next day. The summons process is better.