Category Archives: DUI

What should I expect? DUI?

Q: On New Year’s Eve, I was pulled over. I had been drinking and also had a small amount of cocaine on driver’s side. I would say .5grams. The passenger had a lot more he also told the police what was on my side was his. I think they found it on the floor of driver’s side. The passenger was arrested. I was compliant and cooperate to the best of my ability with the police. They detained me, took me back to the station. I did a sobriety test there and passed, agreed to a breathalyzer and failed .135. They let me call a friend to pick me up. However, they did not tell me what I was being charged with or given any paper work. What should I expect? DUI, drug charge? Both?

A: I would guess both.  The police don’t have to tell you what they are charging you with. Sometimes there are not sure as they need to consult with the chief, a DA, or think about it after writing everything up. You can expect to be arrested by summons. A summons is a written notice for you to come to court for a preliminary arraignment, preliminary hearing, as well as a fingerprinting order. It will be sent to you both by regular mail and certified mail, return receipt. I assume you will be charged with 2 or 3 counts of DUI, possession of cocaine, and any motor vehicle summary offense that the police will use to justify stopping your car. Once you receive these papers, take them to a lawyer. The summons process is permitted under the PA Rules of Criminal Procedure to be used for most misdemeanor arrests when the police feel your contact information shows you have sufficient ties to the community, and will likely show for court. It is better for you than the traditional arrest process which would have resulted in your car impounded and you and you buddy spending the New Year’s Eve and the first day of 2017 in the jail.

What now? A DUI for Christmas?

Q: I was driving on Christmas Day, at night, on the way to pick up my husband from work. I had a police officer come right up on my car, and pull me over. He was IMMEDIATELY persistent that I was under the influence. I haven’t drunk in 4 years, and I haven’t had any drugs in my system for well over a year. I told him I had nerve damage and have bad balance, and such I failed the old toe to heel walk and was given a blood test. I was then released and went on my merry way (with someone else driving my car, which was not towed, thankfully) after being driven back to my car by the officer.  I am on 2 medications (methadone and Elavil) but have been on them long enough that I am very well adjusted (13 months and 12 years respectively) and am not impaired when I take it. What should I expect from here? (Pittsburgh, PA)

A: As you may be aware, you can be charged for DUI based on a police officer’s observations, and/or based on the laboratory result from your blood alcohol testing. Methadone is a controlled substance, as I believe Elavil is. I will assume you have prescriptions for both. To prosecute, the Commonwealth would have to send your blood to a lab which has the capability of determining if the levels of either narcotic exceeded prescribed therapeutic levels. I have had the Commonwealth continue preliminary hearings with these cases numerous times awaiting these lab tests but have never seen a conclusive test. I would not treat this lightly and get prepared. First, contact a lawyer. Secondly, do not make statements to police if they contact you. Third, obtain copies of your past 6-months prescriptions from your physician to show that you are maintaining a legally prescribed dosage and not abusing medication. You can also talk to your doctor about the situation and see if he will draft a letter or provide documents that support your physical limitations.

I have a suspended license offense

Q: I have traffic court in Indiana, PA. I live in Pittsburgh but work up there. This is my third driving under suspended license offense.

A: If it was a DUI related suspension (Motor Vehicle Code 1543 b), you could be looking at a 90-day minimum sentence. In addition, PennDOT will suspend your driver’s license for another year if you are convicted. An attorney may be able to a) get the case dismissed if you have a defense, b) get it pled down to a lesser offense or c) get you house arrest privileges/electric home monitoring so you don’t go to real jail. Call a local attorney about your options.

Unlawful stop DUI?

Q: Hello, I was pulled over recently and was charged with a DUI for marijuana in my system. I was not impaired at the time, but the officer believes that I was. He said I failed the field sobriety tests and took me in for blood. His reason he said he pulled me over was because I went on the line, I don’t even believe that is true and I am pretty sure I was driving 100% fine. Nothing was wrong with the car or any other reason to pull me over. This is my first DUI and since I’m waiting on the blood work, hiring an attorney right now is pointless until then. Is it possible to fight this due to an unlawful stop? Does anyone have any similar stories where they got it thrown away due to unlawful stop? I also want to mention that it was a holiday weekend, at night and on a quiet rode. I really believe he just pulled me over because he felt like it.

A: You have recognized one defense, probable cause. Crossing a painted road line while driving can constitute sufficient probable cause to stop a motor vehicle. However, an attorney would need to know much more than this to opine as to whether you have a defense. An attorney can advise you on other matters regarding your arrests such as the blood test and programs available to you as a first-time offender.


Is this my first or second DUI?

Q: I was convicted of DUI on 2/05/2006 and sentenced for another on 5/05/2016. Would this be considered my first DUI in ten or my second? I was charged with DUI general imp/incapable of driving safely.

A: The 10-year period commenced on the date of your last conviction and ended on the date of your most recent arrest. If your most recent arrest is beyond that period, your DUI is a first for the purposes of sentencing. If you were arrested prior to February 5, 2016, on your new DUI case, this will be a second DUI offense and you will not be eligible for the Accelerated Rehabilitative Disposition (ARD) program.

Why am I not serving a 60-day license suspension?


Q: I have a DUI back from May/June. PennDot claims to have never received the case file from the court in November. I had to call PennDot and the Court multiple times to find out why I hadn’t received my 60-day suspension following my Hearing & ARD admission. PennDot never received the case information. I called the Court and had them resend the case information. Seven days later I receive two letters, one saying I have 3 points for careless driving and another telling me that my license will not be suspended. First offense, accepted into ARD, I had a .193 BAC. Why am I not serving a 60 day license suspension?

A: With a .193 BAC it should be a 60-day suspension unless you pleaded guilty to only a 3802 (a) (1) General Impairment. If you received ARD in Allegheny County, the summary offense, in your case, the careless driving, would have been withdrawn. It is weird. I would keep the letters for your records. Also, keep copies in the glove box in the event you are pulled over by the police. You could just roll with what you have. Or, you can call PennDOT, it is up to you.


Can I beat a first time DUI? No warrant for my blood!

Q: My blood was drawn with NO WARRANT on July 10th of this year. I got pulled over. They said I failed the FST’s but I know a didn’t and I have witnesses who were in the bar parking lot. They took me immediately to hospital where blood was drawn.

A: You are probably charged with two subsections of the DUI statute. One based on the officer’s observations-how you acted, smelled, spoke, looked, handled FST’s, etc. 3802 (a). The second subsections, 3802 (a) (1) and (b), would be based on the blood test results. Pennsylvania adopted Birchfield v. North Dakota under which the blood test results will be thrown out (suppressed) if there was no warrant used to seize the blood from the hospital by the police. However, if the arresting police department amended their informed consent form prior to your arrest to counter the effects of Birchfield, Birchfield may not apply. Even if you get a break with Birchfield, you still can be prosecuted on subsection (a). I would review your case with a lawyer.

My eighth suspended license offense

Q: I was caught driving on a suspended license for the 8th time. This time in Dauphin County. I live in Westmoreland. Can I appeal the sentencing? I missed my court date with the district justice office and got 6 months county prison time. I have appealed it, but was wondering what my chances are of getting the sentence changed to something other than prison time. I know of people who have been caught 15 times or more and did no jail time. (Murrysville, PA)

A:  I cannot tell if this a Motor Vehicle Code 1543 (a) or (b) suspension. 1543 (b)’s are DUI related and carry additional penalties under the habitual offender statute. If you have appealed in a timely fashion, you may be able to receive a sentence of house arrest or electronic home monitoring. However, I am unfamiliar with the practices of the DA and courts In Dauphin County, so you will have to confirm this with a Dauphin County attorney. You may want to hire the attorney who  has kept your friend with 15 license suspension convictions out of jail. Be aware though, you may face problems in having Dauphin County transfer an electronic monitoring house arrest sentence to Westmoreland County for supervision.

What are my options with my DUI?

Q: I was recently pulled over and I got a DUI in Tionesta. They sent me my paper work and it states DUI 1st. I know it is my 3rd within 10yrs. I recently had my oldest son move in with my fiancé and me. I have a great job. I stopped drinking but recently started again due to family issues. I am not an angel but I am a good man. I just want to handle this situation the best way possible to avoid more discomforts for my family. (Swisshelm Park, PA)

A: The charges at this point are merely a police complaint. The police likely did not have access to your entire criminal history during the arrest and arrest warrant process. It is customary for the DA to review the case after the preliminary hearing and amend the charges after they have run your FBI and PA State Police background. As a third DUI, you could be looking at 90 days if your blood alcohol level is below .16 and one year in jail if over .16. You need to have a criminal defense attorney review this case to see if you have any plausible defense, probable cause or other, and if not, what plea options you might have. If you are over the .16 level, you may want to involve yourself proactively in therapy. Again, consult with an attorney to discuss your options.


Fear of needles! Is this a refusal for blood testing?

Q: My friend has an intense fear of needles and was in a car accident. He was taken to the hospital and was asked for a blood test. He informed them he was terrified of needles and was willing to do anything…. urine, breath or to figure out a way for a blood test but he had a very strong fear of needles. They said okay and drove him home. Now they are saying he refused and he will lose his license for a year. Is there any kind of disability that they were unaccommodating here? Unwilling to numb or knock him out or something? Surely there is some alternate procedure for people with this phobia that he was denied? (West Newton, PA)

A: You have no choice in PA as to what test is given. If the arresting authority had no breathalyzer machine, they had no choice.  I have had cases where the police honored such a request when they had the test machines at their station. Just about any form of resistance to the request for blood alcohol testing pursuant to a DUI arrest is considered a refusal in PA, under the strict administrative rules of the PA Department of Transportation. The only defense I can imagine to this is if he has a doctor testify of this needle phobia existing prior to the DUI and of prior incidents in which he could not be treated medically with injections. Courts are generally not receptive to arguments like this or other similar ones such as person’s alleging they cannot urinate in a bottle.