Q: 1st DUI
was over 10 years ago. The charges are 1. 75 § 3802 §§ D2*, 2. 75 § 3802 §§
D1ii* He already pulled off the road as he did not feel right, the police
pulled up. He failed a test, allowed a search and was taken for blood work. He
is on meds, psychiatric & suboxone. He took something else too, possibly. He
wants to plea at bail hearing. I say NO
WAY. He was not read Miranda. Something medically happened around the same time.
He has been diagnosed with “drop foot”(our hospital sucks! all they
did was look at his foot and sent him for a foot brace. It took 15min! I got him
in Pittsburgh’s Rooney Concussion Clinic to find out why this happened. He has
suffered ALOT of head trauma (three 3rd grade concussions in the 6 years we have
been married). I noticed his memory not working. We went to get new tires; he
drove to the wrong place! He swore it was one name; when the actual name was
way off and many other things with his memory, his gait, etc. I feel he
shouldn’t plea. I say go for trial and take all medical docs showing there
was/is a serious med issue that may support his case? (Greensburg, PA)
A: The only way to determine if “he” has a defense would be to gather all of his medical records, medical history and police reports and have them reviewed by an attorney. I have had cases in the past where someone wants to credit under the influence like behavior to prior existing injuries, over-prescribed medications, and other external factors. You will need a physician’s help as well. You do not mention a blood alcohol test. Was there one performed? If so, what were the results? In addition, one can be arrested without Miranda rights being given. Miranda protections only apply to situations where police question a defendant in their custody. Given the burden of proof of all the defenses you raise (brain damage, medications, etc.) and expense you may have in defending this, you may want to consider ARD if it is offered.
DUI, DEFENSE, MEDICATIONS, MENTAL HEALTH, ARD
Q: I recently had a hit and run and I’m under DUI license suspension. I am on five years IIP probation. How much time am I facing? (Pittsburgh, PA)
A: Driving under a DUI suspension will get you a 60-day suspension added on to your DUI suspension, assuming this is a first Section 1543 b offense, as well as a $500.00 fine. If you hit an attended vehicle which resulted in serious bodily injury to the other driver, it is a Felony 3. If you hit a vehicle which was attended but the other driver was not injured, it is a Misdemeanor 3. If you hit an unattended vehicle, it is a Summary offense. If you are convicted of the Misdemeanor 3 or Felony 3 while on probation, you could conceivably face jail time on the probation violation because your judge on the DUI can sentence you to a probation violation which could be more incarceration. You may receive a notice of probation violation from your Probation Officer and he could have you detained pending the outcome of your new misadventure. I would contact a lawyer as soon as possible to be prepared for what is coming your way and get ahead of it. Also, I must mention, the misdemeanor and felony damage to attended vehicles will carry an additional license suspension on top of the others. I would get together with a lawyer to prepare for what is coming. I would also invest in a DUI bicycle.
Q: The cop was sitting and waiting for people to leave bar after work and pulled me over. He had my car towed. When I told him I would walk he gave me a sobriety test that I passed. He took me to hospital. I said no to the blood test and asked him not to tow my car. He asked me if I have a condition that would prevent me from taking sobriety test and I said yes. He still made me do it. I passed the nose finger-to-nose tip test. He took me to hospital. I refused the blood work. What can he do? He has no blood proof and I passed the test. (Pittsburgh, PA)
A: My condolences and all but he can arrest and likely convict you. If you only had a mixed drink and half a beer, why would you not comply with testing? Your refusal will result in a one-year suspension in addition to a one-year suspension for the DUI if convicted. As you can probably guess, the officer’s Affidavit of Probable Cause, which will be attached to your criminal police complaint, will paint a picture of an intoxicated person. With no blood or breath test to gauge your BAC, it will be your word against the word of the officer as to whether you exhibited behavior consistent with being under the influence to the extent you that were incapable of safe driving. If you plan on defending this, you will need to consult with an attorney on your chances.
Q: My husband has a suspended license. He hasn’t had a license in 22 years since his first DUI because he never got it back. He just received a DUI and refused breathalyzer. Will he get house arrest, or will he get jail? We need him at home to pay the bills.
A: Since ten years have passed since his first DUI, this will count as a 1st DUI. The statute calls for 72 hours to 6 months of incarceration because this is a “refusal” and a $1000 to $5000 fine. His driver’s license will be suspended for 1 year on the DUI. He will likely be cited with section 1543 b of the Motor Vehicle Code for driving under a DUI suspended license. This will result in another license suspension of at least one year. Since he has no license, this means that he will be unable to have driving privileges for a period of at least 2 years after he applies. He is not going to jail and will likely get 3 nights in DUI Hotel or house arrest for 6 to 12 months, in addition to fines, costs, a Drug and Alcohol assessment and classes. The penalties for driving under a 1543 (b) suspended license are 60 days in jail and a $500 fine for the first offense. I would invest in an attorney for the Preliminary Hearing and try to get the 1543 (b) dropped to a lower offense so he avoids the additional year of suspension. Riding a DUI bicycle for one year is better than two.
Q: Asking for a friend here. Her BAC was .210 and .181. This is her first DUI. What will happen and how much trouble will she get in. Will she lose her license? Should she get a lawyer? (Baldwin Borough, PA)
A: If she truly has no prior record, is ARD eligible, and, she has no solid defense, ARD would be a good option. Those blood alcohol content readings sound strange due to the disparity, but assuming she is over .159, she will be looking at a 60 day driver license suspension if she is ARD eligible. If not ARD eligible and she pleads guilty or is found guilty, she will receive an 18-month suspension. Have her consult with an experienced criminal defense attorney to assess whether she has any defenses and what her options are.
Q: I completed ARD for a DUI in 2010 but still owe fine, can I still get my gun permit? My fine is narrowing down to the last $1,000.00. I need a gun before the Democrats ban them. (Pittsburgh, PA)
A: You didn’t complete ARD if you didn’t pay off your fines. The Allegheny County DA will not close your case until you do. You need to pay your court costs and/or fines off and let the Allegheny County DA expunge your record. Once expunged you should be clear
Q: My ex-husband and father of my son had his 1st DUI in 2004 and did the ARD program, his 2nd DUI was in 2012 and he had house arrest, probation and 12-month license suspension. Now he had his 3rd DUI in December 2017. It was my understanding that this would count as his 2nd since the 1st was over 10 years ago. However, I looked up the docket sheet on the public website and it says the charge is: 2 75 § 3802 §§ C* DUI: Highest Rate of Alcohol (BAC .16+) 1st Off. Why would this be only the 1st offense? The offense from August 2012 says: 6 75 § 3802 §§ C* DUI: Highest Rate of Alcohol (BAC .16+) 1st Off and 2 75 § 3802 §§ A1** M DUI: Gen Imp/Inc of Driving Safely – 2nd Off. These all happened in different counties (Allegheny, Butler and Beaver) if that makes a difference, all in Pennsylvania. (MacDonald, PA)
A: The police normally charge DUI’s as a first offense because they usually do not have access to a comprehensive criminal record check at the time of arrest. The charge is more accurately amended when the DA has had time to run a more thorough background check once the case is sent to the Common Plea level. It is likely his prior DUIs will be discovered and this will be his second in ten years, thus charged as a second DUI. He won’t receive any benefit for spreading his drinking and driving among different counties, they are all charged under state law.
Q: My 1st DUI was in 2004. I got the ARD program. My 2nd DUI was in 2012. I had house arrest, probation and 12-month license suspension. My 3rd DUI was in December 2017. Will this count as a 3rd offense, or the 2nd again since the 1st was over 10 years ago? (Pittsburgh, PA)
A: For sentencing purposes, this is a second DUI. You have spread them out but not enough to clear the requisite 10 years on each to get an ARD card. As noted, the DA will inform the judge at sentencing that it is your third overall DUI. The DA will consider the fact that this is your third and as such may recommend the higher end of the sentencing guidelines. All is not lost. You may be eligible for DUI hotel or house arrest.
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.
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.