PA State Police Suspends Use of Breathalyzer

While Pennsylvania law allows chemical testing of either a person’s blood or breath, Pennsylvania State Police, as of the date of this writing, have temporarily suspended use of the breathalyzer machine in DUI cases because of concerns of its accuracy. This suspension derives from a recent case in Dauphin County where a judge dismissed a number of DUI cases after learning that the manufacturer of the Intoxilyzer 5000 EN, the device used in Pennsylvania, failed to have the solution in the device tested by independent labs. This case is currently on Appeal at the Superior Court and will more than likely reach the State’s Supreme Court.

While the State police may have suspended use of the breathalyzer test, it is important to keep in mind that local law enforcement, including the Philadelphia Police Department, continues to utilize this device. The issue regarding the accuracy of the breathalyzer test led to the Chun decision in New Jersey in which that State’s Supreme Court set forth a new procedure for the introduction of chemical evidence at trial. These issues in Pennsylvania will more than likely lead to a similar decision by Pennsylvania’s Supreme Court. A DUI charge requires that the government produce scientific evidence to meet its burden of proof if it is attempting to establish a certain level of intoxication. As stated earlier, the intoxication level determines the criminal penalty and scientific evidence is the only way to meet this burden. Blood analysis is considered much more reliable then breath analysis to test BAC.

Pennsylvania, similar to every other state, maintains a driving under the influence statute (DUI-75 Pa.C.S.A. section 3802). The law provides that a person may not drive, operate, or be in actual physical control of a motor vehicle after consuming a sufficient amount of alcohol or any amount of a controlled substance which would render that person incapable of driving safely. Similar to New Jersey the criminal consequences associated with a DUI are dependent on the level of intoxication and prior offenses.

While Pennsylvania employs a similar tiered approach toward DUI as New Jersey, New Jersey’s law is still harsher. In Pennsylvania, general impairment is defined as a blood alcohol content (BAC) between .08 to .099%. A first conviction for this offense does not carry with it a license suspension but still requires the offender to pay a $300.00 fine, attend alcohol highway safety school, and serve possibly 6 months on probation. High impairment in Pennsylvania is defined as a BAC of .10 to .159%. Unlike the lower tier, this offense does carry with it a 12 month license suspension, a minimum of 48 hours in prison, a minimum fine of $500.00 with a maximum to $5,000.00 and all other penalties associated with the lower tier.

The highest level of impairment in Pennsylvania is defined as a BAC of .16% and higher or evidence of any level of a controlled substance. This offense carries with it a 12 month license suspension, a minimum of 72 hours in prison, a minimum fine of $1,000.00 to a maximum of $5,000.00, and all the penalties associated with the lower tiers. If a person refuses to submit to a breathalyzer or blood test he/she is subject to all the penalties associated with the highest tier conviction which would include the 12 month license suspension and the 72 hours in jail.

Similar to New Jersey, Pennsylvania has no sympathy for repeat offenders and a second DUI, even for the lowest level of impairment, carries with it a 12 month license suspension, a minimum of 5 days in jail, and a maximum fine of $2,500.00 along with all of the penalties associated with the first offense. The penalties increase substantially for higher levels of intoxication.

Unlike New Jersey, Pennsylvania does maintain diversion programs for first time DUI offenders and it is important that your attorney explore the possibility of admission into these programs prior to filing any type of pretrial motions or proceeding to trial. Diversion programs may allow you to avoid a license suspension entirely or at least minimize the length of the suspension. In addition, a diversion program may allow you to obtain an expungement to avoid long term consequences which could limit certain professional and educational opportunities.

If a diversion program is not an option due to the circumstances surrounding the incident or a possible prior criminal record, it is important that your attorney review the initial traffic stop, the administration of field sobriety tests, and the chemical analysis of your blood or breath. In addition to these issues it is also important for your attorney to review the actual physical control element of the DUI. While actual physical control of a motor vehicle may appear to be an obvious issue, in many cases an individual is stopped under the suspicion of DUI when a car is parked on the side of the road, in a parking lot, or in some way when it is not actually moving.
The Pennsylvania Supreme Court has found that actual physical control is based on the totality of the circumstances including the location of the vehicle, if the engine was running, and whether or not there was other evidence indicating that the Defendant had driven the vehicle at some point prior to the arrival of police, such as a warm hood or tires.

DUI exposes a person to severe criminal penalties and loss of liberty. It is therefore critical that your attorney review all of these issues with you prior to negotiating with the prosecution or proceeding with the trial.

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