Tag Archives: DUI

Will I get arrested for DUI?

 

Q: If I didn’t get cited or tested for being drunk, will I still get a DUI in the mail? See details below. I drove home (stupidly) from the bar the other night. After a mile, I realized I needed to pull over. Between being tired and having a few, I really just wanted to close my eyes for a minute in a parking lot. Next thing I know security is there and calls the state cops on me. The cops came and they never got out of their car. They asked me to get out and talk to them. I remember the cop taking my information, but I never signed anything, received a paper or even got tested in any way. No breathalyzer, no sobriety test. I did admit to having been drinking because I knew he could smell it on me. I told him where I had been. He asked if I did drugs. I said never in my life, which is true. Those are basically some of the only questions he asked me. He let me call my husband to pick me up. (North Huntington, PA)

A: Not knowing exactly what the police will say that they observed as to your condition, and going on your recollection, which is a bit vague, I certainly cannot promise you will be not be arrested. The fact that the police didn’t get out of the car to give you field sobriety tests, nor take you in for testing, leads me, if I had to guess, that you will not be charged with DUI. All you can do at this point is check your mail as if you are arrested, it will likely be by summons (in the mail). Whatever you do, do not voluntarily go to the police as some people do and make a statement.

Going to court for a second DUI but received a 3rd DUI.

Q: I am to go before a judge on my second DUI. However, I was arrested on new DUI, now my third, a few weeks ago. It’s not showing on the public docket. Will the judge know? I never called his public defender, will she know before the Sept. 3rd court date. It is stated no more continuances on the second. And now I have a third. Will I go straight to jail that day? And, the judge ordered me to take a CRN Evaluation and I haven’t done that yet.

A: If I understand you, you are asking whether a new DUI, for which you have been arrested, but not convicted of, yet, will be known by the judge you are to appear before, on a 2nd DUI? If that is what you are asking, this is what I can offer. This 3rd DUI for which you have not been convicted, will not factor into the sentencing guidelines, so, you can only be sentenced subject to the penalties of a 2nd DUI. Will the judge know about this 3rd pending DUI? Will it affect how the judge will sentence you? I do believe at sentencing the DA can bring it up if he or she wishes. The judge can give whatever consideration he or she wishes to and factor it into the sentence, however, the judge still must sentence within the guidelines of a 2nd DUI. Perhaps the judge will view you as someone who is out of control and sentence toward the maximum of the sentencing guidelines. I can only guess. The other way the judge may know about your new case is by looking it up on the UJS website on his computer as you stand before him. One would not like to think that judges do this, but they do it. I think you should talk to your Public Defender. My concern is that the judge may turn sour when he or she learns you didn’t do your court ordered CRN evaluation, and now you “catch” (as some of my client’s say) a new DUI. It probably will not happen, but the judge may revoke your bond and put you in jail. Again, call your lawyer and be prepared.

 

3rd DUI, what is my sentence?

Q: My question is a generalization of what sentencing I may possibly be looking at. I appreciate your time and advice, in advance. When I was 18 in 2006 I received my first DUI in PA. I did what was asked & got off probation 2 months early. October 2014 I drove 45 minutes to spend the night with my nephew because I told him I would & wanted to keep my word. I received a 2nd DUI. It was recorded as the highest blood alcohol rate as I refused the breathalyzer. I moved to the county where this occurred so I could easily get to the RIP program they recommended & D&A treatment. The day before sentencing, my friend was helping me move. We had dinner about 4pm and each had 2 drinks. On our way back from my apt I got pulled over around 11 pm. My friend threw out a cig butt & the officer said I crossed lanes. I failed the FST & refused a breath test. I tried calling my lawyer for a continuance all night and no answer and in the am he just screamed & hung up. I have warrant(s), no lawyer or $. (Monaca, PA)

A:  Am I hearing a 3rd DUI here within ten years? If my understanding is correct, you may be looking at 1-5 years in the state correctional system and a $2,500.00 minimum fine, in addition to all the normal DUI requirements, such as classes, CRN evaluation, probation, ignition interlock, driver’s license suspension, etc. My recommendation would be to get yourself into counseling or rehabilitation for your own good and consult with a lawyer about your chances with DUI court in Allegheny County. If you enter DUI court, you will need to be serious about your drinking problem. If you are not serious, you will end up in a state correctional facility which is another way of sobering up. As far as having a lawyer, you should call the Beaver County Public Defender to see if you qualify)

Can PennDOT do this?

Q: Did not send in my PA license after a DUI in Maryland. Had no idea it I was required to until I received a letter from PennDOT. Stated today PennDOT has sent numerous letters to my home requesting my license to be sent in. I was living in Baltimore at the time and they had sent the letters to my mother’s house in Pennsylvania that was sold four years prior. In addition to sending the letters to someone else is home my mother had passed away in the meantime. Now PA Is requiring 4 more months of suspension which would make it one year from the incident. In addition to that they are requiring I have installed in ignition device for an additional year. At that time of the incident I was traveling to and from Baltimore Maryland to Pittsburgh Pennsylvania as part of my job responsibilities as a project manager for a construction company with various projects in both states. This coming week I served my one year suspension.

A:  Fighting PennDOT is tough. All the rules are against you. PennDOT will argue that you had a legal duty to change your address with the Post Office and to notify PennDOT of the address change. Obtain your driver’s license and restoration letter from PennDOT-you can call them or go on-line. Review the facts and the documents with an attorney to see if it is worth filing a motion Nunc Pro Tunc (for late appeal) to address any of the issues. If you do have to send your driver’s license in to PennDOT, follow the procedures on their website (with DL Form and restoration fee enclosed) by certified mail, return receipt.

HOW DO I PROVE THEY DID NOT READ MY MIRANDA RIGHTS TO ME?

Q: How do I prove that I was not properly mirandized? I got pulled over last night for driving under the influence of alcohol, when they officer placed me under arrest he did not mirandize me. How do I prove this? What if I’m wrong and was just so panicked I didn’t hear it?

A: Police don’t have to read Miranda warnings to you when they arrest you. Miranda warnings are only required to be read if the police interrogate you. If the police took you to the station and then began questioning you, Miranda rights need to be given. The police can handcuff you, arrest you and jail you without Miranda rights being read to you. If you have been arrested, I suggest that you speak to an attorney before your Preliminary Hearing.

If blood comes back clear, will I still be charged with DUI?

Q: What are the limits for controlled substances Oxicodone, Percondan and Ambian? I was driving in the dark on unfamiliar road with no street lights and oncoming traffic with bright lights. My vision went double. I dropped a cigarette and reached for it. I fell down a flight of stairs 8 wks ago and still have black and blues on my face. I do take meds, some controlled, some not, but they taken earlier in the day, like 8 or 9 hrs before incident. Can I seriously be charged for taking prescribed meds?

A: You can, seriously. If you have controlled substances in your blood for which you have active prescriptions for, you can be charged if the laboratory test results can show that the levels were beyond the prescribed limit. This is difficult to do but can be done. The Commonwealth would add to this evidence the testimony of the police if your behavior was consistent with being under the influence. If you are charged, I would hire a lawyer to look closely at the blood test and maybe even petition the court to have your blood sample tested by an independent lab. Good cross examination of the Commonwealth’s “expert” at the preliminary hearing, if one is called, could really benefit you.

I REFUSED A BREATHALYZER TEST, HOW LONG DO I LOSE MY DRIVER’S LICENSE?

Q: I was given a refusal to breathalyze by the cop, reckless driving and a DUI how long am I likely to lose my license.

A: If you are ARD (Accelerated Rehabilitative Disposition) eligible, you will receive a 60 day license suspension on the DUI. If you do not receive ARD, you will receive an 18 month suspension on the DUI. PennDOT will suspend it another year for the refusal. If you plead guilty to the Reckless Driving, you will receive a 6 month suspension from PennDOT. I advise hiring an attorney to mitigate your damages.

Do I have a chance in fighting this DUI? I was parked and sober!

Q: I am getting charged with a DUI for a Schedule 1 controlled substance (marijuana). I was parked because I was lost and needed to use my GPS. A cop knocked on my window. My passenger had weed on her body, and he picked up the smell. I did not want to rat my friend out, so when the cop asked when I had last smoked marijuana, I answered truthfully and told him it was several hours before I started operating. He made me get out of the car, asked my name. I told him and offered him my license which was in my car. He refused to let me back in my car to retrieve it. He then conducted a field sobriety test, and failed me for my left eye not crossing in when he moved the pen towards my nose (after taking my glasses off). I was then arrested and taken for blood where I had residual THC. (Belle Vernon, PA)

A:  THC forensically found in your blood within 2 hours of driving a car is enough to meet the requirements of the DUI statute. While it seems unfair that you may have ingested marijuana two, three or four weeks prior to the blood test, and the metabolites have remained in your system, it is currently the law. In Allegheny, the laboratory sometimes tests for nanograms and if the nanograms detected are so ridiculously low, your attorney may, may, be able to convince the DA not to prosecute. You could always have your attorney file a motion to have the blood independently tested by another lab if that lab can distinguish nanograms and your results are so small that a jury may not convict you. Secondly, your statement will hurt you. If it was blurted out by you, and not a result of custodial interrogation without Miranda warnings, then you are stuck with it and it can and will be used against you as no one would normally make such an incriminating statement if not true. Lastly, lack of probable cause to stop a vehicle, or ask a citizen to step out of the vehicle, or seize the person’s blood, is always a challenge to prove, but a wonderful defense if you the right facts. I would have an attorney not only look at the blood tests but especially the facts to determine if there is a lack of probable cause to stop your vehicle and get you out of the car. Just sitting on the side of the road generally may not be sufficient probable cause to stop you. However, stopped on the berm of a busy road at 3 am, may be sufficient for the police to inquire as to your situation. There was a great case I used in the past on this probable cause issue, Commonwealth v. Dewitt (1992) , but I would need to research to see if it is still valid law. The other thing I would mention is that if this is your first offense, you may be eligible for ARD, which if you complete the program there will only be a 60 day license suspension, but more importantly, no jail time and no conviction on your record.

IS RESTITUTION ORDERED IN DUI CASES?

Q: Is restitution always ordered in DUI cases? If someone’s insurance pays what is the need for restitution, this is why we pay insurance premiums I thought. If I cannot afford restitution, can I be rejected from ARD for my DUI?

A Yes, if restitution is owed, it is usually part of the Accelerated Rehabilitative Disposition agreement. The District Attorney can choose not to accept you into ARD if a victim has not been reimbursed for damage that you caused relating to your criminal case. Let’s say for example you wiped out a homeowner’s fence in the course of your DUI. Generally, if your motor vehicle insurance covered the cost of the new or repaired fence, either directly to the property owner or through subrogation to their homeowner’s insurer, you should only be responsible for “out of pocket” expenses of the victim in order to be accepted into ARD. These out of pocket expenses could mean their deductible or any other item not covered by insurance.

WILL I BE DRUG TESTED IN COURT?

Q: Will I have a drug test on my court date for a DUI of minor and paraphernalia? This is my first offense with the law. I am 20 years old, currently charged with DUI of .183 and paraphernalia of pipe and pill bottle “smelling of weed”. I will be hiring an attorney soon but I’m worried about if the drug test will be on the given court date or after I am granted ARD? Again I live in PA and I am a minor and they never found cannabis, just the scent in a bottle and the glass pipe.

A: Drug testing in court in Allegheny County can only be ordered by a Judge. It would be rare to have drug testing ordered at the Preliminary Hearing level. Some judges in the Court of Common Pleas of Allegheny County, Criminal Division, use drug testing regularly, for example, drug court or DUI court. However, among the other judges, there are only several that screen defendants randomly. They do this to people they believe have entered the courtroom under the influence and who are facing drug or alcohol related offenses. The judge may ask the person on the record if they have used drugs or consumed alcohol in the past 24 hours. The person takes a risk if they lie. The judge can order the person’s urine to be tested in the court house. The results are reported to the judge within minutes. If the judge chooses, the bond is revoked and the person is whisked away by a Deputy Sheriff to accommodations in the Allegheny County Jail. The judge may let the person sit in the jail as long as he or she wants. In these situations, an honest answer will provide a better chance of avoiding jail as lying to a judge is considered worse than being under the influence. I doubt if this will happen to you based on this being your first offense and you are probably looking at ARD. However, as a word of caution, do not come to court under the influence or even with clothing that smells like marijuana.