Media criminal defense lawyer Scott L. Kramer has been representing people in Delaware County and all of Pennsylvania charges with driving under the influence since 2004. His experience and skill has allowed him to obtain many favorable resolutions for clients. On this page, Attorney Kramer tries to answer many questions that are routinely asked in DUI cases, including why someone should hire a lawyer when their blood alcohol level was above the legal limit.
If you are a first-time offender of DUI and are looking for more information, call (610) 595-4640 today to schedule your free consultation.
What are field sobriety tests?
The National Highway Traffic Safety Administration (NHTSA) sponsored research that led to the development of field sobriety tests in 1975 and those tests have been used in driving under the influence investigations since 1981. In a DUI investigation, the police often administer Standardized Field Sobriety Tests (SFSTs) to develop probable cause and basically determine whether or not the driver is going to be arrested and required to submit to blood alcohol testing.
The tests consist of the Walk-and-Turn, the One-Legged Stand, and the Horizontal Gaze Nystagmus (HGN). The HGN or eye test is an involuntary jerking of the eyes that occurs as the eyes move to the side, and a person that has consumed alcohol often has the twitch or nystagmus in the eye at a different angle that a non-impaired person. The walk-and-turn generally requires a person to walk a line, or an imaginary line, for nine steps out and nine steps back. The one-legged stand requires a person to hold one foot six inches off the ground and count to thirty.
The critical issue to the tests is that they are supposed to be administered and scored by the police in a standardized or uniform manner. NHTSA has created guidelines and teaching material that are used to teach law enforcement how to administer the tests, but some officers are careless in administering and scoring the tests. The tests results are only accurate in indicating impairment if they are administered and scored correctly.
Can I challenge sobriety test results?
An experienced Media DUI defense attorney knows the NHTSA field sobriety testing guidelines and is prepared to question an officer's administration and scoring of the tests. Legal challenges could lead to the suppression of blood testing results in the pretrial phase based upon an illegal arrest. If an officer failed to administer the tests or score the tests correctly, and the officer used those results as the probable cause to arrest, then the basis for arrest can be challenged and suppression of the results of blood testing can be sought.
Challenges to the testing may also be raised at trial. The officer is likely to testify at a trial about the field sobriety tests and then give a legal opinion that the driver was too intoxicated to operate a vehicle safely. The criminal defense attorney can attack the officer's opinion about the driver's ability to drive safely by showing that the officer failed to follow NHTSA guidelines. If the officer failed to administer the tests in accordance with the rules, then the results are not scientific and thereby should not be accepted by the jury.
Do I have to complete field sobriety tests during a DUI stop in Pennsylvania?
During a drunk driving investigation, before an officer makes the decision whether or not to arrest a driver, the officer often requests that the driver submit to field sobriety test. Standardized Field Sobriety Tests (SFSTs) include the One-Legged Stand, the Walk-an-Turn, and the horizontal Gaze Nystagmus. Such tests are used by the officer to determine whether or not there is probable cause to arrest the driver and require the driver to submit to a chemical test to determine the blood alcohol concentration of the driver. While the Implied Consent Law does allow an officer to mandate that a driver submits to a blood, breath, or urine test to determine blood alcohol level or face a civil suspension of Pennsylvania driving privileges for refusing the test, an officer cannot force a person to complete field sobriety tests.
We know that drivers sometimes question an officer during a DUI stop about whether or not the driver must perform such tests. The officer's responses often vary, but many officers will not simply tell the driver that they do not have to perform the tests. Instead, the officers have told the driver that they would be arrested if tests were not completed, and other officers tell drivers that there is no response to forgo the tests if the driver is not drunk. The truthful and simple answer is that a driver is not required to complete the sobriety tests, and there is no punishment for failing to complete them.
If a person refuses to submit to sobriety testing, it does not mean that and cannot arrest the driver. An officer may still believe that sufficient probable cause of drunk driving is present to arrest the driver, but the probable cause is obviously based upon some other evidence aside from field sobriety testing.
Is it legal to turn away from a Pennsylvania DUI checkpoint?
Yes. A driver is permitted to turn away from or avoid through a DUI checkpoint if he or she does so in a lawful manner and before actually entering the checkpoint. In the case of Commonwealth v. Scavello, 734 A.2d 386 (Pa. 1999), the Pennsylvania Supreme Court discussed this very issue in a case in which a driver made a lawful-U-turn to avoid entering a checkpoint. An officer stopped the driver solely because the driver had turned away from the checkpoint, and the officer discovered that the driver was underage and had been drinking. The driver was ultimately charged with DUI and Underage Drinking. The driver's DUI defense lawyer filed a pretrial motion to suppress evidence and argued that the officer did not have reasonable suspicion that the driver has violated the law and thereby did not have a reason to stop the driver. An unlawful stop would violate the driver's constitutional rights, and the legal remedy is that the court suppresses all evidence found as a result of the illegal detention.
Avoiding a Checkpoint Is Not Illegal or Indicative of Criminal Activity
In the Scavello case, the prosecutor raised two arguments. One argument was that people should not legally be permitted to avoid a checkpoint. The second argument was that turning away from a checkpoint should constitute reasonable suspicion of criminal activity to justify a traffic stop. The Pennsylvania Supreme Court rejected both Commonwealth's arguments. The Court stated that the police are permitted to stop vehicles without any suspicion of criminal activity IF the vehicle enters the checkpoint, but the lawful authority to conduct a checkpoint does not give the police the authority to stop drivers anywhere else without suspicion of criminal activity. The Court also stated that turning away from a checkpoint is not reasonable suspicion of criminal activity or a violation of the Vehicle Code. Ultimately, the Court held that the officer's stop of the driver violated the driver's constitutional rights and granted the suppression of all evidence.
Traffic Stop Based Upon Suspicion of Violation of Law
It must be emphasized that the driver did not commit any other violations of the law, and the police has no suspicion that he had been involved in any criminal activity. If a person that attempts to avoid a DUI checkpoint commits a violation of the law, the police would now have sufficient cause to conduct a traffic stop. For example, some people approaching a checkpoint fail to use a turn signal when turning around, and some drivers have turned off their headlights to avoid being detected. By failing use a turn signal or turning off headlights, the driver commits a violation of the law that would justify a traffic stop.
At DUI checkpoints, there is often a police car stationed before the checkpoint that is watching for vehicles to turn around or avoid going through the checkpoint. That officer will often follow a driver that turns away from the checkpoint. The officer is legally permitted to follow a car that avoids the checkpoint, just as the officer is permitted to follow any car on the roadway, but the officer is not permitted to stop the car unless the driver commits a violation of the law. If the person drives the speed limit, uses turn signals, and doesn't swerve, the driver can continue his or her way without being stopped. If the officer observes a vehicle code violation, then the officer is permitted to conduct a traffic stop on the driver.
Do the police need probable cause to conduct a traffic stop?
The answer is that it depends upon the violation for which the police are conducting a traffic stop. Pennsylvania law actually states that a police officer can conduct a traffic stop if the officer has reasonable suspicion to believe that a violation of the Vehicle Code has occurred (See 75 Pa. C.S. §6308(b). Reasonable suspicion is a slightly lower standard when compared to probable cause, which means a lower burden of cause is required to conduct a traffic stop under reasonable suspicion when compared to probable cause.
While the law says that only reasonable suspicion is required to conduct a traffic stop, the Pennsylvania Supreme Court in Commonwealth v. Chase stated that a stop based upon reasonable suspicion is only permitted if there is an investigative goal for the stop, meaning that the officer has an expectation that the stop will provide additional information concerning the suspected criminal activity. Basically, the stop is justified under reasonable suspicion if there is something to investigate. If there is nothing to investigate, then the officer must have probable cause to justify a traffic stop.
Investigable Versus Non-Investigable Offense
Whether or not a police officer needs probable cause or reasonable suspicion to conduct the traffic stop is depending upon whether the offense is an “investigable offense” or not. For example, if the officer said that the traffic stop was conducted because the driver ran a red light, then the officer must have had probable cause. A red-light violation is not an offense that can be investigated, meaning the traffic stop will not allow the officer to investigate whether or not the violation occurred.
The classic example of an investigable offense is a DUI. In most cases like this, the officer conducts the traffic stop in the wee hours of the morning after observing swerving or other erratic driving. The officer conducts the traffic stop to determine whether the erratic driving was a result of the driver texting, changing CDs, or because the person was driving under the influence of drugs or alcohol. During the traffic stop, if the officer smells the odor of alcohol on the person's breath, then the driver is normally given standardized field sobriety tests and possibly a portable or preliminary breath test (PBT). If the driver fails those tests, the driver is often arrested and required to submit to a blood alcohol test to determine if DUI charges should be filed.
Why does it matter?
If the officer did not have the required level of suspicion to initiate the traffic stop, then the traffic stop is illegal in that it violates a person's constitutional right against search and seizures. Evidence obtained from an illegal traffic stop is suppressed by a judge during the pretrial phase of a case after the defense attorney files a motion to suppress evidence. Any person charged with driving under the influence should contact an experienced DUI lawyer for a consultation and case review to see if challenges to the case can be raised.
I was arrested last night for a suspected DUI, submitted to a blood test after being taken to the hospital, but the officer released me without filing any charges or giving me any paperwork. Am I going to be charged with DUI?
Being released with no charges
Most Delaware, Chester and Montgomery County DUI cases and DUI cases across Pennsylvania occur in the above referenced manner. Whether or not the DUI suspect will be charged with DUI charges is often dependent upon the results of the blood alcohol test. If the DUI suspect's blood alcohol concentration is above the legal limit, then it is highly likely that DUI charges will be filed. Generally, since DUI charges in Pennsylvania are misdemeanor offenses, the charges are filed with a Magisterial District Judge and then issued by a Writ of Summons. This simply means that the charges and scheduling notices for future hearing are issued through the mail. Delaware, Chester and Montgomery County DUI cases, charges are often filed approximately three to five weeks after the DUI arrest, and the first hearing, called a preliminary hearing, is often scheduled to take place approximately three to four weeks after the charges are filed. If the DUI is based upon drugs as opposed to alcohol, then it often takes longer for the police to obtain the test results: therefore, DUI cases involving drugs will take longer for the police to file the charges.
After you are charged with a DUI, you should contact an experienced Media DUI defense attorney for a free consultation.
Can I have the charges dismissed because the officer did not tell me why I was being arrested and did not Mirandize me?
Officer Failed to Mirandize You
In a typical Centre County DUI case, the police stop s vehicle, order the person to exit the vehicle, administer field sobriety tests, possibly issue a breath test at the scene, arrest the person, take them to the hospital to submit to a blood test, transport them to the processing center for fingerprints and mugshots, and then release the person, and then make the decision to arrest the DUI suspect and transport them for either a blood or breath test to determine blood alcohol concentration. It is very rare that the officer will issue Miranda warnings when they arrest a DUI suspect.
A typical DUI case in Pennsylvania involves the arrest of a DUI suspect and transport to a hospital or the police station for a blood or breath test to determine blood concentration. Despite the fact that the DUI suspect was clearly arrested, as evidenced by the handcuffs and transport in the back seat of a police cruiser, Pennsylvania police officers rarely tell a person as to the reason for the arrest, and the police rarely administer Miranda warnings. Are the police required to inform you of the reason for the arrest and are the police required to issue Miranda warnings as soon as you were arrested.
Police Are NOT Required to Mirandize Every Time Someone Is Arrested
The answer to both questions is no. The police are not required to inform you as to the reason for an arrest. Also, a person's right against self-incrimination as covered in the Miranda warnings is NOT automatically triggered when a person is arrested. In order for Miranda to apply, a person must be: 1) in custody; and 2) being interrogated, meaning questioned about criminal activity.
Why? Miranda warnings are based upon a person's 5th Amendment right against self-incrimination and include the right to remain silent and the right to have an attorney present during police questioning. Miranda warnings are only applicable if a person is in custody and being subjected to any interrogation. When a DUI suspect is arrested, they are clearly in custody. However, of the officer does not intent to interrogate, meaning question the person about the DUI, then the law does not require that Miranda warnings be issued. Second, when a person is arrested for DUI and asked to submit to a test to determine blood alcohol concentration, the person does not have the right to consult with a lawyer at that time.
In Delaware County, Chester County and Montgomery County DUI cases, most people are transported to the nearest hospital for a blood test. At the hospital, the police officer is required by Pennsylvania law to inform the DUI suspect that he or she does not have the right to consult an attorney prior to consenting to the blood test, and a failure to submit to the blood test increases the DUI penalties if the person is convicted and also results in administrative suspension of driving privileges for the blood test refusal.
If the police informed a DUI suspect of Miranda rights at the time of arrest, transported the DUI suspect to the hospital, and twenty minutes later informed the suspect that he/she could not consult with any attorney, the DUI suspect would be confused about the right to have an attorney. In order to avoid confusion, the police do not Mirandize a DUI suspect at the time of arrest. If the officer intends to interrogate or question the DUI suspect, the officer generally waits after the blood test is completed and then issues the Miranda warnings.
While Miranda warnings may not be required when the person is formally arrested, placed in the back of the police cruiser, and then transported to the hospital, there are situations in which a DUI suspect should have been Mirandized. It is extremely important that you have an experienced Media DUI defense lawyer review your case thoroughly for all possible litigation issues.
How can the police charge me with DUI when I refused the blood test or when my blood alcohol concentration was below the legal limit?
While DUI charges in the Delaware Valley are often based upon the amount of alcohol or controlled substances in a person's blood, Pennsylvania law allows an officer to file a charge that alleges that the DUI suspect had consumed or ingested a sufficient amount of alcohol or controlled substance so that the suspect was rendered incapable of driving safely. In a case in which the DUI suspect refused to submit to a blood test, the officer would not have direct evidence of the amount of alcohol or controlled substance in the DUI suspect's blood, but the officer could testify that the suspect's behavior, such as poor driving, poor dexterity, slurring of speech, and red bloodshot eyes, combined with indicators of ingestion or consumption of drugs and alcohol, evidences that the suspect could not operate his or her vehicle safely. For example, a DUI suspect could be successfully prosecuted if the arresting officer testified that the DUI suspect has an odor of alcohol on his breath, has slurred speech, had difficulty standing, and had failed filed sobriety tests. If the DUI suspect submitted to blood test and the test result evidenced a level below the legal limit, the officer may still file a DUI charge that alleges that the suspect had consumed a sufficient amount of alcohol that rendered the person incapable of safely driving. Basically, the officer is claiming that the person, despite being under the legal limit, was still too drunk to drive safely.
With regards to drug cases, an officer may charge a person with DUI for being under the influence of marijuana if the officer smelled the odor of marijuana emanating from the vehicle, saw a marijuana pipe in the vehicle's console, noticed the suspect's bloodshot eyes, and the suspect failed field sobriety tests. While DUI cases involving blood test results are more difficult for a defense lawyer to successfully litigate, a person can be charges and convicted of DUI even if they refuse the blood test.
How can I be charged with DUI if I was driving on private property and not on a highway?
The majority of Vehicle Code regulations, like the requirements to stop at stop signs and use turn signals when turning, only apply when a person is operating a vehicle on a “highway.” A “highway” is defined in 75 Pa.C.S.§ 102 as being the “entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel” and includes “a roadway open to the use of public for vehicle travel on grounds of a college or university or public school or private school or public or historical park.” In general terms, a highway is road.
Pennsylvania DUI Law Applies to Highways & Traffic Ways
While the majority of Vehicle Code violations only apply when operating a vehicle on highways in Pennsylvania, section 3101 of the Vehicle Code provides that serious traffic offenses such as passing a school bus under 75 Pa.C.S. §3345, or violations of Chapters 37 and 38 of Vehicle Code, apply to operation of vehicles on both highways and traffic ways. Driving Under the Influence (DUI), is found in chapter 38 of the Vehicle Code, which means that a person can be charged with DUI if he or she operates a vehicle on either a highway or traffic way. Pennsylvania law defines “traffic way” as “the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicle travel as a matter of right or custom.” To simplify the definition, traffic way generally means an area in which people operate vehicles that is open to the public as a matter of right or custom.
DUIs Parking Garages & Parking Lots
The definition of “traffic way” gives is a start, and over the year's courts have considered different cases to explain what is and is not a traffic way. For example, the Pennsylvania courts have repeatedly stated that both normal parking garages and parking lots are traffic ways as they are generally open to the public. See Commonwealth v. Zabierowsky, 730 A.2d 987 (Pa. Super. 1999); Commonwealth v. Cameron,668 A.2d 1163 (Pa. Super. 1995). Obviously, if the parking lot was gated and allowed limited access, an argument could be made that if that was not customarily open to the public and thereby did not constitute a traffic way. For example, in the case of Commonwealth v. Wayland 987 A.2d 802 (Pa. super. 2010), a Pennsylvania court held that an Air force base was not a “traffic way” because the base was not generally open to the public.
Private Property Can Be a Traffic Way
The definition of traffic way and cases interpreting that word show that it can apply to private property. Some people believe that they cannot get a DUI charge if parked at a store or bar and thereby on private property. That belief is wrong and is not a valid defense to a DUI charge. If charged with a DUI, it is important to have an experienced Media DUI defense attorney review the case to determine whether the case can be challenged.
How can I be charged with DUI when I only took prescription medications or took lawful over-the-counter medications?
The DUI law in Pennsylvania prohibits an individual from being under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive or operate a vehicle. Many common prescription and over-the-counter drugs can cause impairment and affect a person's ability to drive. If an officer believes that driver impairment is caused by drug use, the officer will often question the person about the types and amounts of medications and may thereafter request that the person submits to a blood test. If the officer believes that the impairment is a result of the use of drugs, even drugs that were lawfully taken, the officer may file DUI charges.
How can I be charged with DUI when I was riding a bike and not driving a vehicle?
Some Delaware Valley residents believe that they are doing the right thing by riding their bike home instead of getting behind the wheel of a vehicle after a night of drinking alcohol. The Pennsylvania Vehicle Code, which includes the DUI law, prohibits a person from violating the traffic laws while driving or operating a “vehicle”. The term “vehicle” is defined in the Vehicle Code as a device upon which any person may be transported, which would include a bike, skateboard and other alternative transportation methods to travel to and from classes, and those devices would generally fall under the broad definition of “vehicle” as they are devised upon which a person may be transported. It can be argued that a Segway would be considered a “vehicle” and thereby subject to the Pennsylvania Vehicle Code.
Because the alternative transportation devices used by people are likely to be considered vehicles, it is very important that people follow any and all traffic laws. As a DUI defense lawyer in the Delaware Valley Attorney Scott L. Kramer has represented numerous people charged with Pennsylvania DUI charges for riding a bike. As evidence that all traffic laws apply to riding a “vehicle” a person was charged with Homicide by Vehicle for a bike accident. In the case, a biker road through a red light and struck an elderly person in the cross walk, and the elderly person died as a result of the accident. Most people would not think that riding a bike through a red light could result in a death and felony homicide charge, but this example clearly evidences why anyone operating a “vehicle” in Pennsylvania must follow traffic laws.
How can I be charged with a “drug DUI” when I had used the drugs days before driving and thereby was not “under the influence” when I drove?
Pennsylvania's DUI law prohibits a person from driving, operating, or being in actual physical control of a motor vehicle with any amount of a Schedule I, II, or III controlled substance or a metabolite of such substance in his or her blood. While the DUI law prohibits a person from having “any amount” of a controlled substance in the blood, the Department of Health is actually required to prescribe minimum levels of controlled substances that must be found in the blood for the test results to be admissible in a DUI prosecution.
The minimum levels of controlled substances required to justify a DUI prosecution are set relatively low so even minor use of drugs can lead to DUI charges. While alcohol is generally expelled from a person's blood and body within hours of consumption, evidence of drug use often remains in one's blood for a much longer period of time. This means that a positive drug test may evidence drug use that occurred days prior to the test, so the person may not be under the influence or actually intoxicated by the drug when the DUI arrest and subsequent testing occur. Under the per se drug DUI law in Pennsylvania, a person can still be prosecuted for DUI if he or she has an amount of controlled substance in his or her blood that exceeds the minimum level established by the Department of Health even if the person was not under the influence of the drug while driving or operating his or her vehicle.
I have a prior DUI, but the officer only charged me with a first offense DUI. Did the officer make a mistake and can the charge be changed in the future?
In Delaware, Chester and Montgomery County, most, if not all, DUI charges are filed as first offenses on the Police Criminal Complaint that is filed by the officer with the district court. For people that have prior offenses of DUI within the last ten-years, they are happy to see that the charge is a “first offense” and hope that neither the police nor the district attorney discovers the error. The first and most important issue to address is that a person charged with DUI should NOT tell the police officer about prior offenses. In the criminal system, a person is presumed innocent, and the burden of proof is always on the district attorney to prove a person's guilt beyond a reasonable doubt. In most cases, the district attorney or police will discover the prior offense DUI as most offenses would be noted on national criminal records or driving records. However, there are some occasions with regard to out-of-state DUI charges where the prior DUI offense does not appear on a criminal background search, so the district attorney and police may not discover the prior DUI charge. If you tell the officer or district attorney about a DUI offense, then the district attorney or police may conduct a more thorough investigation of your prior criminal history to find the DUI charge. While you have no obligation, and should not tell the district attorney about a prior DUI offense, you should inform your DUI defense attorney about the prior offense so that he or she can prepare and defend your case accordingly.
It must be noted that you are generally not obligated to inform the district attorney about a prior offense, but the exception to the rule as IF you apply for ARD, most district attorney's require an ARD application to self-report all prior charges, including DUI offenses. Most ARD applications contain a “verification” section, meaning a section that is signed by the applicant promising that everything that is included in the application is true and correct. If a person lies about a prior DUI charge on the ARD application, the district attorney may file additional criminal charges against the person for providing the false information. There is a distinction between remaining silent and lying.
If the district attorney discovers a prior DUI offense, he or she will amend the charges to reflect that the current DUI is a subsequent offense and thereby subject to severe mandatory minimum penalties for DUI charges. After amending the DUI charge, it is still the obligation of the district attorney to prove to the sentencing judge or jury beyond a reasonable doubt but it is still the obligation of the district attorney to prove to the sentencing judge that a person has a prior offense. A prior offense is not something that is proven to a judge if the person is convicted of or pleads guilty to a DUI charge. If the prior DUI offense was out-of-state, the district attorney must show the sentencing judge that the DUI law from the other state is “substantially similar: to the DUI law in Pennsylvania and thereby should be considered a “prior offense” of DUI.
DUI with Minor Passenger Sentencing Enhancement
Most people already know that a charge of Driving Under the Influence (DUI) carries severe mandatory minimum penalties if a person is convicted. Pennsylvania recently increased the penalties for DUI convictions if a passenger in the vehicle was a minor, meaning under the age of 18. Now if a minor is in the car, the person will also face substantially increased penalties.
What are the increased grading and penalties?
Under the revised section 803 of the Vehicle Code, the grading of a DUI charge in which a minor was a passenger is a misdemeanor of the first degree, which is the most severe misdemeanor charge and is punishable by up to five years' incarceration and a $10,000.00 fine. Most first and second offense DUIs are ungraded misdemeanors and punishable by a sentence of up to six months of incarceration and a $5,000.00 fine, so the minor passenger enhancement is substantial.
Aside from increasing the maximum sentence, the minor passenger sentencing enhancement to the DUI law increased the mandatory minimum fine and imposes a hefty community service requirement for first offenses. The amendment imposes mandatory minimum fines and periods of incarceration for second and subsequent offenses.
The amendment did not change the DUI law discussing ARD eligibility. ARD is a first-time offender program that may allow a person to avoid a conviction and have the DUI charges dismissed and expunged upon completion of the program. A person is not eligible for ARD if a passenger in the vehicle was under 14 years old at the time of the incident. A person charged with first-offense DUI does not have a right to participate in ARD. While a person for ARD if they have a minor passenger in the car, a district attorney still has discretion to deny ARD in such a situation.
Challenge the Penalties by Challenging the Offense
There are many defenses available in cases involving DUI charges. The key is to have an attorney on your side who knows how to find them. Call the Law Offices of Scott L. Kramer at (610) 595-4640 or email us to schedule a free initial consultation with a lawyer and discuss your options.