Drunk Driving – Our Most Common Client Questions

1. How many types of DUI charges are there in Pennsylvania?  How are the penalties

In Pennsylvania, there are actually nine (9) types of DUI charges based on the circumstances surrounding the person’s arrest. DUI is codified under Title 75 Section 3802 of the Pennsylvania Vehicle Code. In addition to DUI, this Title also covers other types of vehicle offenses having to do with driver’s licenses, registrations, and moving violations.

While most motor vehicle violations are graded as summary offenses, DUI is normally graded as an ungraded misdemeanor but there are situations where DUI is graded as a misdemeanor of the second or first degree for repeat offenders.  Recently Pennsylvania made a 3^rd offense DUI a felony offense.

The nine (9) types of DUI charges are as follows:

1. Section 3802(a)(1) – incapable of safe driving due to alcohol; no accident; no refusal.
2. Section 3802(a)(2) – adult driver with a BAC of .08 to .099 within two (2) hours after driving.
3. Section 3802(a)(1) – incapable of safe driving due to alcohol with accident resulting in bodily injury or damage to property.
4. Section 3802(b) – adult driver with a BAC of .10 – .159 within two (2) hours after driving
5. Section 3802(c) – adult driver with BAC of .16+ within two (2) hours after driving
6. Section 3802(d) – driving under the influence of controlled substances
7. Section 3802(e) – a minor driving under the influence with a BAC of .02+ within two (2) hours after driving.
8. Section 3802(f) – commercial/school vehicle driver with a BAC of .04+(commercial vehicle or BAC of .02+ (school vehicle)
9. Section 3802(a)(1) – Refusing a blood or breathalyzer  

•  Do all drunk driving convictions automatically result in a driver license suspension in Pennsylvania? 

No.  The lowest tier DUI offense section 3802(a)(1) without accident, won’t result in any license suspension but that is the only one.  The others will not only result in a license suspension but mandatory jail in most cases.  For example, the highest tier, section 3802(c) and section 3802(d), will result in three (3) days in jail, and twelve (12) month license suspension for a first time offender.  

• I’ve been told that I may be eligible for the ARD program and that it will substantially reduce my possible license.  This sounds great but I’ve been told that I may be ineligible.  What makes a person eligible and ineligible for ARD?

All DUIs, regardless of the severity, may be eligible for ARD but ARD is a program reserved for people with no prior criminal history and obviously no other DUI offenses. ARD is a discretionary program and it’s not unusual for a DA’s Office to reject a person for the ARD Program even if the person has no prior criminal convictions but prior arrests.

Even if you are eligible for ARD, however, your criminal defense lawyer should evaluate your case to determine if the prosecution can establish guilt beyond a reasonable doubt with regards to all elements of a DUI offense. All DUI charges require that the prosecution prove that a person was actually driving the car at the time of the incident and while this may sometimes be obvious there are situations where police are called if the person is out of the vehicle at a time of their arrival. In addition to this element, the DA must also prove impairment.  It is important to remember that DUI, unlike many criminal offenses in Pennsylvania, has mandatory minimum sentence requirements.  

•  What is a Motion to Suppress Evidence and how can it help me win my drunk driving case?

Prior to going to trial on a DUI, your attorney may file Motions to Suppress Evidence in an attempt to exclude the results from the Breathalyzer or blood test from the criminal case against you. If the motion is granted the prosecution won’t be able to prove the more severe sections of the DUI statute but only maybe the less severe sections (3802(a)(1). A Motion to Suppress is therefore a strong defense tool and your attorney should consider it prior to proceeding to trial.

A Motion to Suppress questions whether police had reasonable suspicion or probable cause to initiate a DUI stop or arrest. It’s based on the Fourth Amendment to the United States Constitution and Article 1 Section 8 of the Pennsylvania Constitution. Even if the motion isn’t granted it still is a good opportunity for the defense to challenge the evidence against you and assist with establishing reasonable doubt in your case.  

Probable Cause and DUI/DWI

Police must have probable cause to stop your car in Pennsylvania and New Jersey for suspicion of DUI but there are some cases which indicate that police do not necessarily need probable cause but reasonable suspicion, which is a lower form of probable cause. Police can establish probable cause through a vehicle violation such as failure to maintain lane, speeding, or some other vehicle code issue such as a bad taillight. In the case of a DUI, if police don’t stop the car because of some operation issue, your attorney should make a note of it.  While your attorney may not be able to use this as a basis for a motion to suppress based on a lack of probable cause to stop, he can use it later on to establish a lack of probable cause to arrest for DUI/DWI.

•  Do I have to take a field sobriety test if I am stopped for suspicion of drunk driving? 

Your attorney should talk to you about what occurred after police stopped your car and what, if anything, they instructed you to do. This would include field sobriety tests and any questions you may have answered. I always advise clients never to answer police questions other than providing basic information.  Never discuss where you were coming from, as all of these statements are admissible and potentially harmful to your case.

Unlike a chemical test (blood or breath) you do have a right to refuse to take a field sobriety test (walk and turn, HGN, one leg stand). It is important to consider, however, that if you refuse the test the prosecution will more than likely argue that your refusal is a “consciousness of guilt” and that you refused to take it because you knew you would fail. In these situations you have to consider why you are refusing the test. Normally I only advise people not to take the test if they are physically unable to do so but even in those situations, I think it’s a good idea provided that you explain to the officer that you have a physical condition which may affect your ability to correctly perform these movements.  If, however, you don’t take the test your attorney can always argue why you chose not to take the test and make a very good argument.

•  What are the biggest mistakes people make when they are stopped for drunk driving  

Telling police anything about what you drank or where you were coming from that evening. 

While the prosecution can use your physical appearance, they can also use anything you tell police against you.  This is known as a party admission.  Always be respectful to police but don’t provide any information other than your driver’s license and insurance information. 

Refusing the chemical test (blood or breath)!  You DO NOT have a constitutional right to refuse a breath or blood test – the Fifth Amendment right to remain silent.

There is no constitutional right to refuse a blood or a breathalyzer test in Pennsylvania or in any state. The Fifth Amendment protects testimonial evidence and that is usually in form of verbal statements from an accused person to police. The results of a blood or breathalyzer test, however, are non-testimonial and therefore not a part of a person’s Fifth Amendment rights under the Constitution. The case of Birchfield v. North Dakota has led some to conclude that you should reject a blood test.  This is a bad idea!  A refusal will still result in a civil sanction and a license suspension, regardless of what happens in your criminal case

In the case of a breathalyzer test, the recent US Supreme Court decision specifically says that police don’t need a search warrant. The Court found that a search warrant is necessary in the case of a blood test because it is much more of a severe government intrusion.

Taking the field sobriety test if you have a physical limitation or generally poor balance because of some condition 

You do not have to take these tests. Unlike a chemical test a refusal will not result in automatic license suspension.   If you do you have a physical limitation, you should inform the police officer and your criminal defense lawyer. 

•  Are drunk driving checkpoints (roadblock) legal

While on the surface roadblocks appear to violate the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.  Courts have found these law enforcement devices permissible provided that the police satisfy certain requirements. In Pennsylvania, if the Commonwealth wants to prosecute someone following an arrest at a Pennsylvania DUI roadblock it bears the burden of establishing the constitutionality of that roadblock. The prosecution must establish that the roadblock was set up based on a systematic, non-discriminatory, and non-arbitrary manner. 

The factors which determine the legality of Pennsylvania DUI roadblocks and checkpoints?

A Pennsylvania Court will find a DUI roadblock or any checkpoint constitutional only if it meets the following requirements:

1. The vehicle stop must be brief and it cannot include a search of the vehicle or its occupants
2. Police must give advance notice (signs, notices through the media, ie: newspaper, advertisements)
3. Police administration must make the decision to schedule the roadblock and police officers cannot simply schedule it on their own
4. The location and time of the roadblock must be based on a history of drunk driving incidents and arrests in that location
5. The “stop criteria” must be based on an objective standard created by police administration and not individual patrol officers

Important Information for Drivers About Pennsylvania DUI Roadblocks – You can avoid them!   

A driver is legally permitted to avoid a roadblock and police can’t stop a car simply based on the belief that a driver is avoiding them. In Pennsylvania police can only stop a vehicle which attempts to avoid a roadblock if the police officer believes that the driver is purposely avoiding them and the officer has a reasonable suspicion that the motorist is either in violation of Pennsylvania’s vehicle code or the motorist is committing a crime due to the car’s sudden or abrupt change of direction.