How to Fight a DUI Case in PA
Any attorney fighting a DUI case in Allegheny County and the remaining counties in Western Pennsylvania must have the necessary training, experience and skill needed to take on the challenge. Never assume that you are guilty of DUI because you drank alcohol or had drugs in your system. There may be defenses available in your case that a skilled DUI lawyer can attack. This article is designed to highlight some of the possible defenses that might apply to your DUI case.
Unlawful Traffic Stop Defenses
One potential line of attack in your DUI case centers around whether or not police officers illegally pulled you over. Typically, police officers will conduct a traffic stop on individuals when they’ve observed one or more vehicle code violations. Police officers need probable cause to perform a traffic stop when you’ve committed a vehicle code violation that does not require further investigation, such as observing you drive with a broken taillight. Alternatively, they need reasonable suspicion to believe you committed a traffic violation to stop your car for traffic offenses requiring a further investigation. However, Pennsylvania case law prohibits officers from stopping vehicles for “momentary and minor” violations, such as briefly crossing the fog line with your tires.
If you were subjected to a traffic stop without the necessary reasonable suspicion or probable cause, your attorney can file a Motion to Suppress Evidence. If successful, evidence obtained against you cannot be used at trial, which may lead to a withdrawal of your charges.
Attacking an Officer’s Observations Regarding your Physical Condition
After pulling you over, police officers will pay close attention to your physical characteristics which may be indicative of impairment. Common terms of art that police will refer to include:
A strong, moderate or mild odor of alcohol emanating from your breath or person;
Slurred, slowed and deliberate speech;
Bloodshot and glassy eyes;
Disheveled or messy clothing and appearance;
Fumbling for your license, insurance and registration;
An unstable or unsteady gait upon exiting vehicle;
Police officers draw conclusions about your behavior despite only having encountered you for a matter of minutes. Medical symptoms and behavioral traits can be misinterpreted as evidence of intoxication by a police officer who knows little to nothing about your background.
No Proof that you Drove, Operated or Exercised Physical Control Over the Movement of a Vehicle
The first element in all DUI charges requires the Commonwealth to prove that you actually drove, operated or exercised physical control over the movement of a vehicle. There are cases that arise where individuals are simply “sleeping it off'“ in a parked car with the engine running and the heat/AC on. In other cases, police and other witnesses never see you drive a car at all. These cases are very fact specific, and require careful analysis by your attorney.
Insufficient Proof of Impairment
Pennsylvania has DUI General Impairment charges that apply in drug and alcohol related DUI cases. For these charges, the Commonwealth must also prove that you were incapable of safe driving, or in other words, that drugs or alcohol substantially impaired normal physical or mental faculties that are essential to safe driving. An inability to establish impairment can lead to an acquittal on the general impairment charge. In some cases, hiring a defense expert toxicologist may be necessary.
Field Sobriety Test Defenses
In Pennsylvania, there is no requirement that an individual submit to Field Sobriety testing. However, law enforcement officers will never tell you that the test is not required, so most clients end up submitting to field sobriety tests.
The National Highway Traffic Safety Administration (NHTSA) has created a curriculum to train officers in a standard procedure to administer three standardized field sobriety tests: the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and One Leg Stand (OLS). Police officers are trained to look for “clues of impairment” during the performance of these tests. If you demonstrate clues of impairment during the performance of the tests, police will typically place you under arrest for DUI.
There are many issues that arise during the Field Sobriety Test phase, which include:
Improper administration of Field Sobriety Tests;
Not providing proper instructions to the suspect;
Improperly documenting clues of impairment, or noting clues of impairment that are defined by NHTSA;
Administering tests that are not certified by NHTSA, such as having the driver recite the alphabet backwards, count backwards, or the Romberg balance test;
Administering tests for individuals who have medical problems that will skew test results.
Breath Test Defense - Observation Period
Chemical testing of your BAC through breath testing will occur at a police station or state police barracks. Title 67 Section 77.24 sets forth a mandatory observation period, where by a police officer or certified breath test operator must observe you for at least 20 consecutive minutes prior to administering the first alcohol breath test. The officer or breath test operator observing you must be able to establish that you didn’t drink fluids, regurgitate, vomit, eat, smoke, or chew gum. This is to ensure that that there is no mouth alcohol present to skew your testing results.
During this observation period, it is rare for a police officer or breath test operator to be watching you for 20 minutes straight. Typically, they’ll divert their attention away from you, choosing to prepare police reports or enter information into an Intoxilyzer device rather than staring at you for 20 minutes straight. This line of inquiry could potentially create doubt in the minds of jurors hearing your case.
Breath Test Defense - Mouth Alcohol Contaminating Sample
Although prosecutors will often claim that slope detectors will prevent mouth alcohol from contaminating breath test results, these devices aren’t foolproof. Clients with Gastroesophageal Reflux Disease (GERD) may experience a faulty test result due to reflux of ethanol from the stomach, which will contaminate the breath test result. If slope detectors are successful at keeping mouth alcohol from contaminating results, then why does the government require a 20 minute waiting period? Additionally, asthma medications may skew test results.
Breath Test Defense - Improper Calibration or Device Malfunctioning
Breath testing equipment must be subject to regular maintenance, testing and calibration. Breath test operators are required to obtain two consecutive breath tests from the suspect, and then also administer simulator tests used simulator solution designed to give a reading of .10% after the conclusion of your 2nd breath test. If your breath test results, or the simulator results, differ from an allowable amount, the breath testing equipment must be placed out of service, calling into question the validity of your test. However, many officers overcome equipment problems by simply taking the suspect to a hospital for blood alcohol testing.
Challenging Warrantless Blood Test
In the 2016 case of Birchfield v. North Dakota, the United States Supreme Court ruled that in order for police to pursue a blood test of a DUI suspect, they must either have a warrant, or an exception to the warrant requirement must be present. Based upon this decision, Section 3803 of the vehicle code was modified to enhance the grading of DUI offenses where the driver refused blood test when there was either a warrant, court order, or other constitutionally permissible basis.
Consent to a blood draw is an exception to the warrant requirement. Police officers continue to request chemical testing without warrants, claiming that a warrant is not necessary because the suspect consented to blood testing. Determining whether or not police obtained valid consent to chemical testing requires a careful consideration of the individual case facts.
Blood Test Defenses
When blood samples are drawn from a DUI suspect, they must be collected, stored and analyzed correctly. The testing equipment must be properly calibrated and in good working condition. To pose a challenge to the validity of blood results, your attorney cannot rely upon the standard “discovery packet” provided by the District Attorney’s Office. Your lawyer will need to file special discovery requests to necessary info from the lab, including equipment maintenance records, calibration records, and records documenting the qualifications of lab scientists. You will need to hire an expert laboratory data auditor to review the laboratory documents to ensure that the laboratory is following proper testing protocols. This type of defense can be very costly.
Violating the Two Hour Rule
In Alcohol DUI cases, the Commonwealth must prove that your BAC was a .08% or greater within two hours of the time you drove, operated or exercised control over the movement of a vehicle. The failure to obtain the blood or breath sample within two hours of the time you were seen driving may lead to a dismissal of your case.
However, Section 3802(g) provides an exception, allowing for the admissibility of BAC evidence obtained more than two hours after driving where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours, and establishes the suspect didn’t drink alcohol or use drugs between the time of arrest and the time the sample was taken.
An unnecessary delay of over two hours between the time of your traffic stop and the time of testing may prohibit the Commonwealth from offering your BAC into evidence, which may substantially hamper their prosecution.
Trust the Zuckerman Law Firm for your DUI Defense
Mounting a proper defense to a DUI case can be costly when experts such as toxicologists and lab experts are needed. Before making a decision on whether or not to fight your DUI case, it is important for your attorney to discuss the facts with you along with pricing and options.
Whether you choose to fight your DUI or pursue a plea agreement, you need the right advocate in your corner. Attorney Dave Zuckerman has litigated evidence suppression motions, non-jury trials and jury trials on DUI cases. He has prosecuted or defended hundreds of DUI cases in his career. If you’re charged with a DUI and believe there’s a defense to your allegations, contact the experienced DUI defense team of the Zuckerman Law Firm at 412-447-5580.
