Tag Archives: DUI

Do the police still need a warrant in PA? for DUI blood testing?

Q: My son was pulled over for traffic stop. Then the police cited him for DUI. They took him to the hospital to do a blood test which he consented to. They also tested his blood for other drugs which he didn’t know at the time. He was clean of all drugs just the alcohol came back as he was over the limit. Do they still need a warrant for this under the new US Supreme Court law of the 4th Amendment and the state of PA to draw a blood test? (Meadville, PA)

A: Yes, after Birchfield v. North Dakota which ruled that police need a warrant to obtain blood, the PA Department of Transportation changed its O’Connell warning form. As the law currently stands post-Birchfiled, police need consent from a DUI suspect. If not, they must get a warrant. Given the fact that PA has such a strict penalty for refusing to consent to chemical testing (one-year license suspension) most driver’s consent to blood or breath testing. I know I would.

How much time will I get for a hit and run while on DUI probation?

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.

Is there a time limit to file an Omnibus pretrial motion?

Q: This is in the state of PA for a criminal case. I was caught in PA for a DUI, which I am contesting and handling myself until I can find suitable counsel. I left my Formal Arraignment the other day with a paper saying I had a time deadline to file the Omnibus Motion. I need to get my lab results to a lab because I suspect they will be tampered with. I also want all the evidence against me. (Sharpsburg, MD)

A: Allegheny County and many other counties, do not strictly enforce the 30-day rule. To preclude further discovery based on a technical time limit would be a denial of due process, so most courts do not enforce the rule. The point is for the defense to not wait until too close to trial to file discovery motions as this may cause the defense to continue the case, or even be precluded if the court feels the defense is intentionally stalling. Get your discovery motion in as soon as you can. Normally, you need to review the DA’s discovery first.  I suggest hiring a lawyer to represent you.

Mixed drink and a half of a beer get me DUI?

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.

New DUI with refusal. DUI about 22 years ago.

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.

First DUI

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.

Can I get a gun with my ARD DUI?

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

Why would this be as first-offense DUI?

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.

Is this a 2nd or 3rd DUI?

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.

Charged with 3rd DUI this past April. Last DUI in 2006. Why?

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.