The most common myths about DUI in PA

Myths about Drunk Driving Charges

Our criminal defense law firm represents many individuals charged with drunk driving (DUI) in Pennsylvania and New Jersey along with criminal offenses involving illegal drugs, guns, and firearms. There are always a number of myths flying around the internet about criminal charges but especially when it comes to DUI. Everyone has a friend or a family member who has “been through this” and often times these individuals misinform an accused person because their case was different or they simply forgot what actually happened.

The purpose of this short article is to clarify and dispel the 5 most common myths about drunk driving charges in Pennsylvania.


1.  The prosecution (District Attorney) needs the results from a blood or breath test (breathalyzer) to prosecute you for DUI.

This is simply not true! In Pennsylvania under Section 3802(a)(1), Section 3802(d)(2) and Section 3802(d)(3)), the prosecution can and will proceed under the general impairment section of the DUI statute which doesn’t require the prosecution to introduce blood alcohol concentration (BAC). In these situations, the prosecution only has to prove that you were in control of the vehicle and impaired to such a degree (from drugs and or alcohol) that you were unable to operate it safely on the roads or streets in Pennsylvania. The prosecution can establish this through the observation of a police officer and even a civilian witness but obviously the observations of the officer are much stronger. Police are trained in these types of situations and have experience making arrests.


2.   Police always need probable cause to stop a person for a DUI

Normally police do need probable cause that a person has committed a violation of the traffic code but in the case of a DUI, police need only reasonable suspicion that a person could be under the influence in order to stop a car for a DUI.  Reasonable suspicion is lower form of probable cause!

Typical violations of the vehicle (traffic) code include things like speeding, running a stop sign, or running a red light but in the case of a DUI, the officer can stop a car if he believes it is making “unusual” movements. An example of these movements would be briefly drifting over the center line of the traffic lane or stopping for an extended period of time at a stop sign.


3.  You have a constitutional right to refuse a breathalyzer 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 recent case of Birchfeild v. North Dakota has led some to conclude that you should reject a blood test. Your criminal defense lawyer, however, can still make a motion under this recent Supreme Court decision even if you consent to a blood test. Refusing to take the test only potentially adds another possible criminal charge which your criminal defense lawyer will have to deal with at trial and during pre-trial motions

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. Since that decision Pennsylvania courts have found that a person’s consent doesn’t equal a waiver of the search warrant requirement for blood so taking the blood tests would not change the inadmissibility of the evidence and your defense options.


4.  You can’t refuse the field sobriety test.

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 and explain to the officer your reasoning. 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 physical movements.


5.  All of the drugs in my system are legal so there’s no DUI, right?

Section 3802(d)(2) and Section 3802(d)(3) only requires that the prosecution prove beyond a reasonable doubt that you were unable to safely operate a car or motor vehicle because you were impaired by some drug or some combination of drug and alcohol. The type of drug is not part of a burden of proof and therefore doesn’t matter if it’s legal or illegal.


If you’re charged with a DUI in Pennsylvania I encourage you to read my free book, Five Ways to Fight and Win Your Pennsylvania DUI Case, as well as watch my videos on this topic.