July 4th is here! Many will take the day and enjoy it with family and friends with a barbecue, fireworks and other events. While our law firm will close for this national holiday, our 24 hour call center will remain open in the event that an existing client or new client needs our assistance during an unexpected event.
While it is our sincere hope that you and your family will enjoy this and all holidays without an issue, as I have stated a countless number of times, a drunk driving charge can happen to anyone regardless of their station in life. Our criminal defense law firm, based in Philadelphia, wants to help you avoid a situation that could cost you your LIFE (DUI/DWI kill thousands of people every year), LIBERTY(possible mandatory minimum jail sentence) and your pursuit of HAPPINESS (loss of driver license)
Here are 5 things to keep in Mind this July 4th:
- There is an increased local and state police presence on all major highways during national holidays
- Police don’t always need probable cause to stop your car for suspicion of DUI!
- You don’t need to answer police questions following a DUI/DWI stop!
- Preliminary Alcohol Screening (PAS) and Standard Field Sobriety Tests (SFST) are optional but and Evidential Breathalyzers Tests (EBT) Aren’t
- Never refuse a chemical test
Law enforcement often uses checkpoints, especially in the spring and summer months, to identify and arrest individuals on the suspicion of driving under the influence (DUI) and sometimes illegal drugs and narcotics. Federal and state law distinguish police checkpoints used for DUIs and those used for drug interdiction. Interdiction is a term which refers to law enforcements efforts to stop the sale or distribution of illegal drugs. Read my free books on drugs and DUI
- DUI/DWI Checkpoints are constitutional but not for crime prevention!
The United States Supreme Court in Michigan v. Sitz found that checkpoints used for the primary purpose of identifying intoxicated individuals are constitutional. The Court reasoned that highway safety poses an immediate safety risk to the public and the minor intrusion of the checkpoint met the Fourth Amendment reasonableness standard. The Court further ruled, however, that crime prevention was not the purpose of the stop but rather focused on the public safety aspect of it.
2. Police don’t always need probable cause to stop your car for suspicion of DUI!
Police Don’t Need To Observe a Traffic Violation To Stop You For DUI
Most drunk driving arrest begin with a traffic stop made because of a violation of the vehicle code (speeding, running a red light, or a stop sign). Following that traffic stop a police officer may have a suspicion that a person has been drinking because of the person’s appearance or some other sensory cue (smell of alcohol). It is important to first understand that a police officer doesn’t have to see or observe a specific moving violation to stop a car for suspicion of DUI. The officer just needs reasonable suspicion that a driver is either intoxicated or perhaps in distress (falling asleep at the wheel). If, however, can’t properly articulate the reason for the stop other than “I thought he was intoxicated or some type of distress” your attorney should probably consider a motion to suppress evidence focused on the stop of the vehicle
3. You don’t need to answer police questions following a DUI/DWI stop!
Do Police Have To Read Your Rights Before Asking a Question?
Once a stop is made a major issue in DUI cases is whether the officer is permitted to question a driver about what he did prior to getting behind a wheel that day. While the Supreme Court in Berkemer D. McCarty ruled that a motorist wasn’t in custody when he was asked “a modest amount of questions” following a traffic stop in 1984, the Pennsylvania Superior Court didn’t apply this case to the case of Commonwealth vs. Bruder. In the Bruder case the Pennsylvania court held that a custodial interrogation doesn’t require that police make formal arrests and exists whenever an individual being interrogated “reasonably believes his freedom of action is being restricted”. The court went on to say that whenever a person’s freedom is restricted any statements elicited before the Miranda warnings should be suppressed under the Fifth and Sixth Amendments to the United States Constitution.
The Length of Questioning Matters For Admissibility Purposes
The United States Supreme Court, however, reversed the Pennsylvania Supreme Court and specifically held that during an ordinary traffic stop a person isn’t in custody for the purposes of Miranda and therefore the statements made by a driver in response to a question are admissible. The court held that while a stop is unquestionably a seizure within the meaning of the Fourth Amendment such traffic stops are brief unlike prolonged station house interrogations. Further, traffic stops incur in “public view” and in a far less police dominated environment and therefore the motorist’s’ freedom isn’t restricted to the same degree as a formal arrest.
It appears that the length of the interrogation is a critical part of the court’s Bruder analysis. While the Supreme Court has ruled that police are permitted to question a driver following a traffic stop and even ask possibly incriminating questions your criminal defense lawyer should focus on the length of the conversation with the officer prior to the ultimate question being asked (i.e. have you been drinking? Are there drugs in the car? Is there a gun in the car?). For more information on the Fourth Amendment and illegal searches and seizures, I encourage you to read my book: 5 Ways to Fight & Win Your DUI Case
4. Preliminary Alcohol Screening (PAS) and Standard Field Sobriety Tests (SFST) are optional but and Evidential Breathalyzers Tests (EBT) Aren’t
Preliminary Alcohol Screenings (PAS)
Police use PAS tests to assist with a probable cause determination. These devices do not usually provide precise amounts of alcohol within a person’s system. They are small and portable which makes them convenient for roadside use but they aren’t always accurate. If the results of a PAS indicate the presence of alcohol, police can use it along with other factors (field sobriety failure, odor of alcohol, slurred speech, glassy eyes) to arrest a person for suspicion of DUI. Following that arrest, police will want a more accurate measurement to determine a driver’s BAC with the goal of obviously putting together enough evidence to result in a conviction in court.
Evidential Breathalyzer Tests (EBT)
Evidential breathalyzer tests (EBT) are the easiest way to provide a precise BAC outside of a blood test, which is usually more accurate as an EBT device requires the device to convert a breath sample to the alcohol estimated to be within a person’s blood
The Right To Refuse a Chemical Test
While a person has a right to refuse both of these tests, an EBT refusal will result in an automatic 12 month license suspension under 3802(a)(1)-Refusal. Refusing to take a PAS won’t result in a license suspension but the prosecution can likely introduce evidence that a person refused a PAS to establish conciseness of guilt which is another factor that a court can use to find guilt beyond a reasonable doubt. Refusing an EBT however, will result in an automatic license suspension. Remember that Pennsylvania, like most states such as New Jersey will impose an administrative license suspension through PENNDOT regardless of the outcome of criminal proceedings
The Standard Field Sobriety Test (SFST) are frequently administered at roadside when police or state troopers come upon an individual who they believe to be intoxicated. Police use these tests in addition to observing a person’s pattern of speech, disorientation, odor of alcohol, and other movements. Unlike physical presentations (speech, odor, and movements), the scoring of the field sobriety test are subjective. Officers are trained to look for certain errors or “clues” which are believed to have a correlation to a person’s blood alcohol content (BAC). While failure on these tests isn’t required for police to have the probable cause to arrest someone the results are still important.
The prosecution will use the SFST to bolster the Commonwealth’s case if a person fails them. The defense should always focus on attacking the reliability of these tests and establishing alternative reasons for a driver’s poor performance or failure. Unlike chemical testing, a driver isn’t required to take a field sobriety test but keep in mind the prosecution could always use it as “consciousness of guilt” just as if a person ran from the scene of a crime.
I recommend that a person always submit to a field sobriety test because it’s much easier for the defense to argue that the tests are scientifically unproven or unreliable rather than a person has a constitutional right to refuse them. Refusing the test isn’t going to help your case! I believe that the prosecution’s “consciousness of guilt argument” is much stronger than the alternative defense argument. There are three types of field sobriety tests that are approved by the National Highway Transportation Safety Administration (NHTSA) and they are as follows:
- the horizontal gaze nystagmus test (HGN),
- the one leg stand test, and
- the walk and turn test.
I have written previous articles on these tests and I encourage you to read them. All of these tests are premised on the theory that impairment diminishes a person’s ability to perform mental and physical functions at the same time. To safely operate a car or motor vehicle, a person must be able to process mental data and perform physical functions contemporaneously.
The one leg stand test and the walk and turn test are divided attention or psychophysical tests. The goal of divided attention tests is to have the individual demonstrate two or more psychophysical skills such as the ability to process information, make decisions, use short term memory and maintain balance and coordination. Not all police officers are trained on field sobriety testing as training requires a specific certification.
5. Never refuse a chemical test (blood or breathalyzer)
A big question that we get, should I refuse a blood test with the new Supreme Court decision with Birchfield v North Dakota and my answer is No, you should not refuse a blood test. Blood tests, most people now understand with the Birchfield decision prevents the prosecution from introducing blood evidence without a search warrant.
While the Birchfield decision affects criminal prosecutions in the Commonwealth of Pennsylvania it does not affect the civil sanctions that Pennsylvania can impose on a person failing to submit to a blood test following a DUI arrest. There are two aspects to a DUI case in Pennsylvania. The criminal aspect and a civil aspect. Now all of this centers around a person’s refusal of a blood test in a DUI case. When you refuse a blood test, it is not only a criminal case in Pennsylvania, it is also a civil one. Now the Birchfield decision has pretty much eliminated the criminal penalty for refusing a blood test because without a search warrant the police cannot use the blood evidence. But the Birchfield decision has not changed the civil sanctions that PENNDOT can impose for failing to submit to that test. This decision also had no effect on the use of breathalyzers in DUI prosecutions. If you do not submit to a blood test in Pennsylvania, PENNDOT can and will suspend your drivers license for 12 months. The results of the criminal prosecution are absolutely irrelevant.
If you have more questions about DUI defense, I encourage you to read my book Five Ways to Fight & Win Your Pennsylvania DUI Case. This is a comprehensive guide that I encourage you to read. It has a lot of good information that can help you with your case.
Our law firm wishes you and your family a happy and safe 4th of July
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