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.

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