Frequently Asked Questions in PENNSYLVANIA DUI Cases

What is DUI?

DUI is an abbreviation for Driving Under the Influence. The recent changes in the law rename name it to DAI, Driving After Imbibing. The new legal limit in Pennsylvania is .08% changed from .10% as of February 1, 2004.

What is the new DUI law?

On February 1, 2004, Pennsylvania’s new DUI law took effect. It is entirely different and more severe than the old law – most notably, when counting prior offenses, the court must now look back 10 years, not 7. In addition, the legal limit was lowered from .10% to .08% making it easier for the State to prove its case. In addition, the Commonwealth has attempted to do away with “relation-back” testimony by providing the police with two hours to conduct the blood or breath testing from the time of actual control of a vehicle. The penalties are now linked to the blood alcohol level – the higher the level the more severe the penalty. Finally, under the new law, the penalties have been stiffened for most violations and license suspensions time periods increased.

Here is the new DUI Law:
 
(75 Pa.C.S. Section 3802) (a) - General Impairment - (1) An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the vehicle; (2) An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .08% but less than .10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) (b) - High Rate of Alcohol - An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .10% but less than .15% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) (c) - Highest Rate of Alcohol - An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) (d) - Controlled substances - An individual may not be in actual physical control of the movement of a vehicle under any of the following circumstances: (1) there is in the individual's blood any amount of a (i) Schedule I controlled substance, as defined in the Controlled Substance, Drug, Devise and Cosmetic Act or (ii) Schedule II or Schedule III controlled substance, as defined in the Controlled Substance, Drug, Devise and Cosmetic Act which has not been medically prescribed for the individual or (iii) metabolite of a substance under paragraph (i) or (ii).

(75 Pa.C.S. Section 3802) (e) - Minors - A minor (an individual under 21 years of age) may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is .02% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

Refusal of Breath, Blood or Urine Test – Under the new law, a refusal is treated as the highest dui level and for a first offense, your license will be suspended for a period of not less than 1 year and a 3 days mandatory incarceration. 

Can I still be in trouble for driving, even if my BAC is below the legal limit?

Yes. It is also unlawful to drive with your normal faculties impaired. Normal faculties are those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, under Pennsylvania law, a person can be convicted of Driving Under the Influence for this activity. (Please note, this is a subjective view.)

Does the car have to be moving for me to be guilty of DUI?

No. You can be arrested for DUI by driving while over the legal BAC (in Pennsylvania) or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel with the keys in the ignition can lead to your arrest for DUI by being in actual physical control of the car.

Do I have to submit to a breath, blood, or urine test?

No. However, refusing such tests is generally not a good idea. The laws of most states permit the motor vehicle department to suspend your privilege to drive for a chemical test refusal. In addition, your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you.

By accepting the privilege extended by the laws of most states to drive, the courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, this is called Implied Consent. Therefore, when you sign your name on your license, you are saying that if stopped for a possible DUI, you will accept to take the test. The arresting officer's belief for chemical test is "Reasonable Belief".

A person may ask to have a separate chemical test completed by an independent laboratory or hospital.

Can I fight my loss of license?

Pennsylvania's civil license suspension for a DUI is incorporated in the criminal process and does not go into effect until after a person is convicted, or pleads guilty. The only time a separate Department of Motor Vehicles is available, is for a chemical test refusal. This raises a separate civil issue that must be addressed through an appeal, directly to the Department of Transportation.

CRIMINAL COURT PROCESS (excluding Philadelphia and Pittsburgh)

1) Preliminary Hearing- local District Justice
a. Evidence required- prima facie
b. Most important, as part of a criminal case- prepares proper foundation for trial, can be used as a discovery tool, and to asses the strength of the Commonwealth's case.

2) Pretrial Conference: Usually a housekeeping day where courts will schedule cases for trial or plea. In some counties, ARD will be offered on this day or please can be entered.

3) Trial- is most counties of Pennsylvania, excluding Philadelphia and Pittsburgh, a person has the right to a jury trial. This Philadelphia and Pittsburgh are municipal jurisdiction(s). The accused of a misdemeanor case goes directly to trial without a jury. A municipal judge presides. If convicted a right to appeal does exists.

Will I be able to get my case dismissed because I was not read my rights?

Probably not. But if you were interrogated after being placed in custody, your statements can not be used against you.

Will I go to jail?

On a first offense, there are mandatory minimum jail sentences of up to three days. probably not. An experienced attorney however can help you to resolve your case through alternative disposition programs without jail or even a criminal record. I can also help to preserve your license, shorten license suspension periods, or obtain occupational limited license for driving to and from work.

On second or later offenses, periods of incarceration increase to up to 30, 90 or 365 days – minimums. An experienced attorney may be able to keep you out of prison through intermediate punishment programs, work release and in home detention.

I lost my Pennsylvania license. May I obtain a license in another state.

In most cases, no. If you are an out of state driver with a Pennsylvania DUI you may be able to retain your out of state license and drive in states other than Pennsylvania.

If I obtain an international driver's license, may I drive in Pennsylvania even though my Pennsylvania license is revoked?

No. Beware of the scams that tell you otherwise.

Am I a bad person, because I was arrested for DUI?

No, but you are well advised never, never smell like alcohol while behind the wheel. You do not need to feel humiliated.