Tag Archives: DUI

DUI on 6/3. He wants to Plea. I say NO!

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

Any way to check if DUI charges are filed?

Q: I was detained for a DUI in April but have not received anything in the mail. Is there a possibility they sent to wrong address? Is there any way to check to see if charges have been filed? (West Mifflin, PA)

A: If you have no internet prowess or no computer, call the District Justice office located in the town in which you were stopped. You can also call the police department that stopped you. You can also hire an attorney to inquire. If the address you gave the police when you were stopped has changed, you may have missed your mail which is no defense legally. If you missed a court date, hire a lawyer to arrange to turn you in and set bond.

A friend of mine got into a minor accident while DUI and on probation?

Q: A friend of mine just recently got into an accident. He moved slightly into the adjacent lane going about 25-30 mph and hit the side of another car. His BAC was about .11 on a breathalyzer. No one was hurt, and everyone was very accepting of his apology. Unfortunately, he is on probation and only had 2 and a half months left. He is in jail now waiting for the blood work to come back and waiting on a court date. What can we all expect for him as far as sentencing? Is house arrest a possibility? Or are we looking at months of incarceration? (Pittsburgh, PA)

A: Too little information here to advise. Like, why didn’t he make bond on his DUI? Is there a probation detainer? If it is a probation detainer holding him in jail, it is for a prior DUI? Is this a first, second, third DUI? Does he have a prior record? You should see that he is represented by either a private attorney or a public defender. The fact that he was in accident will likely raise his DUI penalties. If this is a 3rd or 4th DUI, his case will go to DUI court. He will likely not have a jail sentence, but DUI court requires strict compliance and monitoring.

Do I turn myself into the magistrate if I appeal?

Q: I got a driving under DUI suspended license, but it isn’t suspended anymore. I’m off probation for my DUI. So, if I want to fight it do I still have to turn myself in on the given date at the magistrate. (West Mifflin, PA) A: I assume you are saying that at the time you were stopped and charged with 1543 (b), driving under a DUI suspension, the suspension period had expired beforehand and you think therefore that you should not be charged as you were not under suspension at the time of the stop? If so, and you obviously didn’t have your license in your possession, you can still not only be charged but can be convicted for not having RESTORED your driving privileges after the suspension period ran. The law is brutal in that it still views you as under suspension if you did not restore your license, even if your period of suspension has expired.

A 1543 (b) violation carries 60 days in jail, a $500 fine a one-year suspension for the first offense. In these circumstances, I have luck on occasion with the police working the charge out to a lesser offense that does not involve jail or a license suspension. You can restore your driving privileges by calling PennDOT or ordering from their website, a restoration requirements letter. It will require at least sending in the completed form and a fee, and, possibly, paying any unpaid fines or costs you have from OTHER cases in the system. The requirements letter will state what you need to do. I am not sure what kind of date you have before the magistrate, but if you were convicted and he gave you 30 days to turn yourself in, that sounds like you may be going to jail on that day. If you were convicted by him, you need to appeal. If you appeal to the Court of Common Pleas, Summary Appeals, the judge can give you house arrest. It sounds like you should take your papers to an attorney immediately.

Can I get convicted for DUI when out of the vehicle, no keys in ignition?

Q: I was a passenger in my vehicle when the driver made a sharp turn into a parking lot and parked behind large SUV’s. He exited the vehicle and ran to the wood line, 30 feet away. My dog ran after him, I exited the vehicle and retrieved my dog, not knowing why he did this. Upon walking behind my vehicle approximately one minute after this occurred, with dog, I noticed the state police cruiser sitting approximately 30 yards away. He approached me. Long story short, I was charged with a DUI. He never asked who was driving, or anything. As soon as I gave him my personal info, he soon exited his vehicle, no lights on, and immediately began a sobriety test. I didn’t refuse to cooperate with him but didn’t provide any info. I refused to test 2 two years ago, so I figured I’d best not refuse anything. Upon searching me, he found approximately 2 grams of Marijuana. What are the chances of conviction in court for a case like this. I was never seen operating the vehicle. This was not a traffic stop or DUI stop. Secondly, will the search be rendered illegal if the DUI is beaten in court? In other words, would the misdemeanor possession be void because it was found after the DUI arrest? (Jefferson Hills, PA)

A: I assume you are charged with DUI and possession? Operation of a motor vehicle is an essential element of every DUI prosecution. If the police cannot put you behind the wheel or there is not an abundance of circumstantial evidence that can allow a juror or trier of fact to conclude that you were behind the wheel, proof beyond a reasonable doubt may not exist. If the officer saw you pull up, you are sunk. If he didn’t your testimony about the phantom driver must be perfect to be believed by a Common Pleas Court judge. The issue about the search may not bode in your favor. It could be viewed as a safety pat down given this officer finds you in a secluded area, when he is alone with you. Or, it could be viewed as a search pursuant to arrest. It all comes down to what the officer puts in his report and what he testifies to. You will need a skilled trial attorney to spin this your way.

Why was my son taken for bloodwork after a passed breathalyzer?

Q: My son was stopped after “swerving”. He admitted to officer he did because he was changing music on his phone. Officer asked if he was drinking and my son admitted he had 2 beers after work and was heading home. My son passed the field test and was given a breathalyzer. The officer didn’t tell him results or arrest him. He took him to hospital for blood draw and told me summons will be in mail in a few months. Why would they take my son for bloodwork after a breathalyzer on scene? Especially since there was no accident or injuries? Is that common in PA? (Pittsburgh, PA)

A: What you refer to as a “breathalyzer” was not a in fact a breathalyzer. It was likely a PBT or preliminary breath test which merely gauges the presence of alcohol. It is a small gadget which police use at the scene. It has the effect of indicating the presence of alcohol but the police like it as it can be used a probable cause and because it intimidates people in to thinking they are in trouble. The real test in your son’s arrest was the blood draw at the hospital. They are commonly used and there is not much you can do about it. If your son had two beers his BAC content should low and may be under .08 if some time had passed after the consumption.

I blew .11. This I s my second DUI in 10 years

Q: My business and all my vehicles are registered in PA but I live in another state. Will I have to do house arrest at the address that my license says or can I make a move and change the address before all this stuff comes down. I don’t want to put burden on my parents. It happened January 3rd. I assume I will have to go to school and might have to get one of those breath thingies in my car. I’m scared, frankly. (Boardman, OH)

A: It will be treated as a second DUI as it is within ten (10) years of the last one. As such, the statute reads 30 days to 6 months imprisonment and a $750 to $3000 fine. Of course, you will have other fines and costs, have a CRN evaluation and attend safe driving classes. If it is Allegheny County, you may be eligible for house arrest. Allegheny County will transfer your probation to the out of state county in which you live. What might be tricky, is transferring house arrest, electronic home monitoring. If the county in your state does not have such a set up, the Allegheny County probation office may not transfer it and you will have to set up a residence in Allegheny County, or do jail or alternative housing in Allegheny County.

Will kids being in the car keep me out of ARD?

Q: When I was pulled over for my marijuana DUI the officer said I would get ARD. My kids where in the car and everything I’m reading says I will not be able to get ARD if minors where in the car. The officer also stated he would tell the judge I was very cooperative, but it seems that there isn’t much that can help me. I have a consultation scheduled with a lawyer, but I have very little money. I am the main supporter of my family and it was just Christmas, so I feel I am in a very bad position with no options it is really worrying me. (Rochester, PA)

A: Each county District Attorney sets its own criteria for ARD eligibility. It would not be unusual for crimes like Endangering Children (EWOC) or Recklessly Endangering Another Person to make you ineligible for ARD. In situations where someone in your situation who obviously has no criminal record, the DA can make an exception and drop those additional crimes to allow you to enter ARD on the DUI alone. In my county, it often takes a letter from an attorney asking for this type of exception to be made. Your options are to hire an attorney, or, talk to the officer and see if he will help you out by talking to the DA on your behalf and requesting the charge that makes you ineligible (EWOC) be withdrawn. If this is a plea, I am sure you can find an attorney to work with you on the fee if you call around. You should also talk to the Public Defender in your county to see if you qualify.

Can a DUI dismissed if they bruised your vein when taking blood test?

Q: Hi. I got pulled over for a traffic stop and the car smelled like marijuana. They wrote me a citation and they were going to let me go but the passenger in the back seat threw up out the window, so they made me stay and get out the car for a sobriety test. They arrested me and took me to get a blood test. (McKeesport, PA)

A: Sure. And not only can you get your case dismissed, but the police must give you a written apology and take you to breakfast! No, not so. I know of no bruised vein defense. If you feel there was something amiss with your blood draw, you can always have your attorney consult review the tests and if warranted, consult with a forensic expert to review the results.

Can a DUI dismissed if they bruised your vein when taking blood test?

Q: Hi. I got pulled over for a traffic stop and the car smelled like marijuana. They wrote me a citation and they were going to let me go but the passenger in the back seat threw up out the window, so they made me stay and get out the car for a sobriety test. They arrested me and took me to get a blood test. (McKeesport, PA)

A: Sure. And not only can you get your case dismissed, but the police must give you a written apology and take you to breakfast! No, not so. I know of no bruised vein defense. If you feel there was something amiss with your blood draw, you can always have your attorney consult review the tests and if warranted, consult with a forensic expert to review the results.