Category Archives: DUI

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.

How to remove an order from previous sentencing?

Q: I got a DUI at college Johnstown. I want to apply for early termination of my DUI probation. I filed the motion, my lawyer was late on court day just to tell me that the DA has papers stating there is a no early termination of probation clause in my DUI plea papers. Is there a way to remove this from the order? All my fines are all paid, my supervision is completely up to date and over paid. I’ve met every requirement asked and have completely made a 180 in my life. I want to create a better life for myself but they make it difficult. For me to move, there are many hoops to jump through and a great deal of money to be lost. Any help/suggestions are more than acceptable! (Monroeville, PA)

A: You can only change an order with a new order that vacates or modified the prior one. Every county is different but what it sounds like to me is that the DA objects to closing your case early. The DA doesn’t make the decision, the judge does. However, if the DA will not agree to it the judge most likely not either. Legally, the judge could deny you based on well-grounded law that says the judge has no jurisdiction to modify a sentence after 30 days. The DA could be viewing this as such an attempt to modify your sentence or even go back on your plea agreement. In that case, it would be a waste of time to present such a motion. I would ask your attorney if he or she thinks it is worth going forward with the petition to the judge regardless of the DA’s position. Your lawyer should know the history of the judge and the practice norms in your criminal court house enough to properly advise you.

Will Public Drunkenness charge adversely affect my ARD program?

Q: I was charged for a DUI in February of 2016, I completed all the necessary steps for the Chester County ARD program and I am off probation. This past weekend I received a public drunkenness citation in Dauphin County, will this citation affect my previously completed ARD program? Additionally, will deciding to go to trial make the charge any worse than it already is?

A: f you were off probation and your case was closed, this new non-traffic summary offense will not constitute a violation of ARD probation and result in a revocation. If you were off probation, but for some reason your case is not closed, you may have a problem. Electing to plead not-guilty and defend yourself on any criminal charge is your right, and should not make the punishment worse. However, if you have no defense and are offered a withdrawal of the charge if you complete a program or community service, take the deal. District Justices, as most judges, do not like people who waste the court’s time with trials when they are obviously guilty. If you do this, yes, some judges may max you out on the fine.

Arrested in Sonoma County for a DUI. Will Ca. notify PA?

Q: I live in Pennsylvania and was attending a wedding California in October 2016. After the arrest, I hired a Sonoma lawyer. I am being told to accept informal probation and I am curious how this could affect my life in PA. Is it public record? Also, I am going through a messy divorce with an 8-year-old so I don’t want this used against me. Thank You. (Pittsburgh, PA)

A: You need to determine if you are entering a plea agreement for a first-time offender’s program that leaves you with no criminal record, like ARD in PA. If that is not the case, my best guess is that you will have a criminal record for a DUI which will be part of a national database. PA will know about it. There is a law called the Interstate Compact, through which all states share information. Also, any driver’s licensing penalties related to a DUI conviction in CA will be imposed by PA. I think you need to call the CA attorney and verify more details as to your plea agreement.

On probation, crashed into a pool. DUI. Am I going to Jail?

Q: My little sister just passed away and my mind was not in the right place and I was driving drunk and crashed into a neighborhood pool (closed). This is my first mess up on probation and I never been in jail. Do you think I’ll get longer probation or jail time?

A: Much more information would need to be known before any lawyer can answer this question. I suggest you consult with a lawyer immediately. In Allegheny County with a DUI, if you are not ARD eligible, you may receive alternative housing or possibly house arrest, but jail is a possibility too. Again, more information is needed. As you are aware, your probation judge can treat your DUI offense committed while on his or her probation as a probation violation and potentially sentence you to jail or extended probation.

How can the court change my DUI to a 3rd offense?

Q: I was charged with DUI and my lawyer wanted to challenge the stop because the cop has a reputation of pulling people over on “hunches”. (the judge ruled the stop was legal). All my paperwork says that I am being charged with DUI 1st offense. Now, 10 months later the court changed my charge from dui 1st offense to DUI 3rd offense. I only found out about this because I looked up my court status online at the clerk of courts. How does the court get an elementary school “do over” when this thing went on for months as a 1st offense?

A: I would need more information to give you a specific answer. However, it sounds like the DA just discovered your prior two DUI’s. They can amend the information when they receive new evidence. This can happen especially if the prior convictions were out of state. Your counsel can object to an amendment of the Criminal Information (charges). However, I don’t know if that would be a valid defense if a jury has not been sworn in and double jeopardy has attached. I believe the Commonwealth can amend their Criminal Information (charges) upon discovering new information. You either have two priors or you don’t have two priors.