Drunk Driving Frequently Asked Questions
Can I refuse to take a breathalyzer? Can I be arrested if I was just sitting in my car? We have compiled some of the most frequently asked questions we get about drunk driving arrests in Pennsylvania and New Jersey and our DUI attorney offers insightful answers.
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DUI – Understanding “Actual Physical Control” of the Vehicle
Pennsylvania, similar to every other state, maintains a driving under the influence statue (DUI-75Pa. C. S. A. section 3802). In Pennsylvania a person may not drive, operate, or be in actual physical control of the movement of a vehicle after consuming a sufficient amount of alcohol or controlled substance to render the individual incapable of safely driving, operating, or being in actual physical control of the movement of the vehicle. The criminal consequences associated with DUI are dependent on the level of intoxication, prior offenses, and whether accident resulted from the incident. The prosecution can establish intoxication through the observation of the arresting officer or through chemical analysis of bodily fluids.
The successful defense of a DUI charge requires that the attorney review the basis for the initial traffic stop, the administration of possible field sobriety tests, and the chemical analysis of the defendant’s blood or urine. In addition to these issues, it is also important to question if the prosecution can meet the elements of the offense.
While many attorneys may over look the actual physical control element of a DUI there is a long history of cases which continue to debate this issue. In many cases an individual is stopped under the suspicion of DUI when the car is parked on the side of the road, in a parking lot, or in some way not actually moving. It is important to understand that the prosecution need not establish that the car was moving at the time of the offense but only that the driver was in actual physical control of the movement of the vehicle.
In Pennsylvania our Supreme Court has found that actual physical control is based on the totality of the circumstances including the location of the vehicle, whether the engine was running, and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police. See Commonwealth v. Wolen, 546 Pa. 448 (1996). Examples of these findings include cases where police found vehicles protruding into traffic lanes, drivers sleeping in their cars on the side of the road with the engines on, and drivers asleep in a parking lot with the engine running.
While our Supreme Court has issued several rulings on the meaning of actual control, it is important to keep in mind that actual physical control is still an issue of fact which the defense attorney can argue to a judge or jury depending upon the circumstances surrounding the case. A DUI conviction subjects an individual to substantial fines, possible incarceration, and loss of his or her driver’s license. If you are charged with a DUI it is important that your attorney consider all possible pre-trial motions and whether the prosecution can meet necessary elements of the offense. An aggressive defense is critical to success when faced with a DUI.
Understanding Blood (BAC-DUI) Testing Procedures: Who Can Take Your Blood
Blood evidence is far superior to a breath sample for DUI prosecutions. As stated in previous articles, breath testing is based on various assumptions and constants. Breath samples are converted into BAC results to determine a person’s level of impairment. More and more law enforcement agencies are not, however, using breath tests because of the questions surrounding the reliability of those scientific assumptions.
While a blood test provides stronger scientific evidence of impairment it is much less convenient then a breath test. Blood tests obviously require a medically trained individual unlike breath tests which simply require a police officer to use a device in an appropriate manner. While someone should have some type of qualification to administer blood tests the law does not require this individual to be a doctor, nurse, or any type of licensed person. There is no general rule for qualifications and the law only requires that the person taking this sample be acting in accordance with his or her job description.
Further, the law in Pennsylvania does not even require that blood be taken at an approved medical facility such as a hospital or clinic but it only requires that an approved clinical laboratory perform the chemical analysis of the sample taken. While some may argue that a blood test is a medical procedure you should understand that Pennsylvania does not require either a doctor or a nurse to order its administration. The law only requires that a police officer make the request and the police officer doesn’t even need to be present while the sample is taken.
After the sample is taken a laboratory and a trained scientist approved by the Pennsylvania Department of Health must perform the analysis. Pennsylvania publishes a list of approved laboratories each year and also the minimum list of qualifications for scientist working in the facility. Approved laboratory equipment, approved procedures, and qualified scientists are the minimal threshold for the admissibility for the blood test. The fact that the prosecution can meet this minimal requirement does not prohibit the defense from challenging the reliability of the tests results.
Your Diabetes and Your Breathalyzer Results: Creating Reasonable Doubt in a DUI!Request a Free Consultation
The use of Breathalyzers in DUI prosecutions in Pennsylvania is declining but the device is still used by a number of law enforcement departments including the City of Philadelphia. A blood draw is a far superior method to determine a person’s blood alcohol content (BAC).
While blood tests provide stronger results a Breathalyzer is more convenient. Further, police can give a Breathalyzer test at the police station or practically anywhere because the device is portable. While they can do a blood test anywhere it requires much more preparation. Blood alcohol analysis is based on a scientific principal known as “Henry’s Law”. Henry’s Law states that when a liquid containing a volatile substance, like alcohol, makes contact with air in a closed container (Breathalyzer) the amount of alcohol in the air and the liquid are static (consistent or unchanged). Breath testing devices measure the amount of alcohol found in a person’s breath and multiplies it by a pre-determined co-efficient to arrive at a person’s estimated BAC. Breath testing, therefore, relies on scientific assumptions and constants.
Since a breathalyzer measures the amount of alcohol in a person’s body through their breath it is important to determine if any other medical conditions could negatively effect breath testing. In addition, it’s important to determine if a medical condition could cause a person to appear intoxicated when, in fact, he was just suffering from the effects of the illness.
Diabetes is one medical condition which can be a potential defense to a DUI case. Diabetes is a disease which causes the body not to produce or properly use insulin. Insulin is a hormone made by the pancreas which converts food into energy. There are two main types of diabetes: Type 1 and Type 2. Type 1 Diabetes is usually diagnosed in children and young adults. This type of diabetes causes the body not to produce insulin and only approximately 5-10% of the population suffer from this condition. Type 2 Diabetes is where the body doesn’t produce enough insulin or the body’s cells simply ignore the insulin. This type of diabetes represents 90-95% of the population who suffer from this condition.
In addition to alcohol there are thousands of substances that could be inside a person’s breath sample. Breathalyzers use infrared spectrometry and one of the substances found is acetone. Acetone can negatively influence Breathalyzers results because it is a byproduct of a metabolic state known as Ketoacidosis. Ketoacidosis is a high concentration of ketone bodies which is normally associated with Type 1 diabetes. Prolonged alcoholism can also cause Ketoacidosis. There two types of this condition alcoholic and diabetic Ketoacidosis. This condition can cause a person’s breath to smell fruity and police can sometimes confuse this smell with that of alcohol.
Individuals with Type 1 Diabetes can therefore have high levels of acetone in their breath. Acetone is found naturally in the environment and is normally present in the body from the breakdown of fat. Acetone is a substance that can be falsely identified as ethanol (also known as ethyl alcohol). This condition can cause the Breathalyzer to show a false positive even when the suspect hasn’t consumed any alcohol. If the Breathalyzer doesn’t take into account the level of acetone in a person’s breath the prosecution won’t be able to distinguish ethyl alcohol from acetone. This can create reasonable doubt as to the test’s results or cause the judge to rule that he results are inadmissible at a pre-trial motion.
The Top 5 Questions about DUI Checkpoints in Pennsylvania
The holiday season is about to kick off next week with my favorite holiday—Thanksgiving! With this wonderful season comes office parties and other events involving alcohol. Police and law enforcement in Pennsylvania will be on the look out for drunk drivers and will more than likely set up a checkpoint at or near where you live or near the party you’re attending. Here are top 5 questions that our criminal defense law firm receives from clients in Philadelphia and its surrounding counties.
- Are DUI checkpoints legal in Pennsylvania?
YES. In Pennsylvania, the random stop of a car or other motor vehicle is unconstitutional but federal and Pennsylvania law does permit them in certain situations.
Pennsylvania defines a roadblock as a well-marked stationary point supervised by police where officers make a brief “without suspicion” or stop to determine a driver’s possible intoxication using a pre-determined objective standard.
While it may appear that checkpoints and roadblocks violate the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution, the United States Supreme Court and the Pennsylvania’s Supreme Court have found this police tactic permissible as long as the police satisfy certain requirements.
- Who is responsible for establishing the constitutionality of a checkpoint or a roadblock?
The Commonwealth through the assistant district attorney (the prosecutor) bears the burden of establishing the constitutionality of that roadblock. Almost every case involving the constitutionality of a roadblock will cite the “Tarbert/Blouse” standard.
This standard comes from two Pennsylvania Supreme Court cases which balanced an individual’s constitutional rights under the Fourth Amendment and Article 1, Section 8 of the Pennsylvania Constitution against Pennsylvania’s compelling interest of public safety (protecting people from drunk drivers.)
The Court in both of these decision found that while roadblocks intruded upon a person’s constitutional rights, it is an acceptable level of intrusion given the state’s interest in protecting the public.
- What specific constitutional requirements must a DUI checkpoint satisfy?
A Pennsylvania Court will find a DUI checkpoint constitutional if it meets the following requirements:
- The car stop must be brief and it can’t include a search of the vehicle or its occupants
- Police must give advance notice (signs, notices through the media, ie: newspaper, advertisements)
- Police administration must make the decision to schedule the roadblock and police officers can’t simply schedule it on their own
- The location and time of the roadblock must be based on a history of drunk driving incidents and arrests in that location
- The “stop criteria” must be based on an objective standard created by police administration and not individual patrol officers
- Is there anything illegal about intentionally trying to avoid a DUI checkpoint?
No. 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. If the police officer, however, 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 change of direction, he can stop it.
For more information on DUI in Pennsylvania, read the second edition of my book—5 Ways to Fight & Win your Pennsylvania DUI case. I’m almost finished the second edition of this book and look for this expanded version later this month!
The 5 Most Common Myths about Drunk Driving Charges in Pennsylvania
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.
Have You Been Drinking? How to answer a question if police stop you for DUI
Most drunk driving cases start 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 (not probable cause) that a driver is either intoxicated or perhaps in distress (falling asleep at the wheel).
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 v. McCarty ruled in 1984 that a motorist wasn’t in custody when he was asked “a modest amount of questions” following a traffic stop, 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 United States Supreme Court, however, reversed the Pennsylvania 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?).
If you are stopped for suspicion of DUI in Pennsylvania or DWI in New Jersey, my advice is not respond to the question have you’ve been drinking or any question! Simply tell the officer that you will provide the him or her with your license, registration and proof of insurance but you’re not going to answer questions about where you were coming from, or what you ate or drank that day before driving. Other attorneys may disagree but if the officer is asking, have you’ve been drinking, he really doesn’t care what you have say, he is going to arrest you anyway; making this statement is never going to help your case. Speaking to police is just going to give the prosecution (district attorney) a stronger case against you.
For more information on the Fourth Amendment and illegal searches and seizures, I encourage you to read my free books: What Everyone Should Know about Guns, Drugs, and Defense Lawyers in Pennsylvania and 5 Ways to Fight and Win Your Pennsylvania DUI Case.
Blood Evidence, DUI, & The Confrontation Clause: Who’s a necessary prosecution witness?
A conviction for driving under the influence (aka drunk driving) requires the prosecution (district attorney aka D.A.) to establish all the elements of this charge beyond a reasonable doubt. One the elements of the criminal charge is impairment. While it isn’t always necessary for the prosecution to establish a specific blood alcohol concentration or content (BAC), the more serious DUI charges require it. BAC is based on the results of blood or breathalyzer test. The legal limit in Pennsylvania and New Jersey is .08.
If you’re going to trial on a DUI charge or thinking about going to trial, attacking these results should be a part of that strategy. Of course you’re criminal defense lawyer should have a trial and a pre-trial strategy. A pre-trial strategy focuses on the reasonable suspicion and/or probable cause grounds for the police stop and arrest which led to these criminal charges (Motion to Suppress Evidence.) A trial strategy, however, focuses on the elements of the actual criminal charges. In the case of a DUI/DWI, a trial strategy must involve reviewing the conclusion of the scientific results along with the chain of custody of the blood evidence.
When people think of chemical results, they often focus exclusively on the test itself and forget that scientists (human beings) are conducting those tests. We’re all human and we all make mistakes, or maybe try to cut corners sometimes. Scientists are no different and if you’re defense lawyer isn’t thinking this way, he is cutting your chances of trial success and a possible acquittal in half! If the prosecution wants to introduce blood evidence into your DUI prosecution, they need to produce the actual analyst or scientist who tested the blood. The Confrontation Clause within the United States Constitution prevents them from using another scientist or expert simply because they have the appropriate educational and professional qualifications.
The 2011 US Supreme Court case of Bullcoming v. New Mexico dealt with this specific evidentiary issue. In that case, the Court held that the prosecution’s attempt to introduce a surrogate analyst violated the defendant’s constitutional right to confront the witness against him. The Court stated that the prosecution must produce the actual analyst who performed and certified the laboratory results (the blood test.) The Confrontation clause doesn’t allow the assistant district attorney or prosecutor to introduce a forensic laboratory report containing a testimonial certification to prove a fact at a criminal trial through an analyst who didn’t perform or observe the test.
The court reasoned there are human actions (and therefore potential errors) not revealed in raw data that are open to cross examination. During DUI blood testing, the following occurs or may occur:
- The analyst receives the sample
- Is the seal broken?
- Has it been tampered with?
- Did he follow the test protocol?
- What is the protocol?
- How was it devised (what is standard)?
- Did anything occur that could jeopardize the circumstances surrounding the sample’s integrity or the analysis’s validity?
This Supreme Court decision obviously makes the prosecution of a DUI more difficult and some prosecutors may want your defense lawyer to stipulate to the admissibility of the blood test results. The admissibility of these results, however, in critical to the case against you. For more information on Driving Under the Influence charges call our office. I also encourage you to visit our free download section
- The analyst receives the sample
DUI Evidence: What information do you need to give your lawyer?
If you’re charged with driving under the influence (DUI) in Pennsylvania or driving while intoxicated (DWI) in New Jersey, a sound defense strategy is critical to a favorable outcome. A favorable outcome can of course include a not guilty verdict but keep in mind that this type of result isn’t always possible (and it doesn’t necessarily mean that your DUI lawyer didn’t do his job.) The severity of DUI or DWI is based on the degree of one’s intoxication so a defense victory isn’t always a complete not guilty (while obviously preferred).
In Pennsylvania, for example a 1st time offender under 3802(a)(1) doesn’t face a driver’s license suspension provided that the DUI didn’t involve an accident. A conviction under 3802(c) (highest tier BAC greater than .159) faces 3 days in jail, a 12 month license suspension, an ignition interlock, along with substantially higher fines! Winning, therefore, doesn’t always mean no conviction, especially, if the prosecutor or district attorney has, what appears to be, a strong case against you.
The difference between a great result and a poor one, is often based on the information or evidence that your criminal defense lawyer collects prior to trial. This information isn’t always in the discovery and sometimes, you actually hope that it isn’t because you don’t want the prosecutor to use against you.
While the prosecution is obligated to provide the defense with all the information that it has on the case, it isn’t obligated to do the defense’s investigative work! Your lawyer needs ask you very specific questions to ensure that he has a complete picture about what occurred on the day or evening you were arrested for DUI; don’t just accept what the DA gives you as gospel! This critical information should include the following which may not be in discovery provided to the defense (it probably isn’t):
- Your height
- Your weight
- Last Meal
- Duration of drinking
- Number of drinks consumed (standard sized drink
- The type of drinks consumed (beer, wine, liquor)
- Time you left the bar, club, restaurant
- Time of accident (if it occurred)
- Time of arrest (it may be different than what police write down)
- Time of traffic stop (again, it could be different)
- Time of chemical test (blood test, breath test)
As you can see from this list, time is a critical part of a DUI defense because blood alcohol concentration or content (BAC). In addition to time, however, what you are drinking (size of the drinks) and what you consumed will influence the rate of alcohol absorption and its concentration. Your attorney can even roughly calculate your BAC with the Widmark formula based on the information that you provide to him. These answers are in addition to the results of the chemical test (blood or breath) that will be provided to your lawyer.
The results from those chemical tests are critical to prosecution’s case because more serious DUI charges require that district or prosecutor establish a specific BAC beyond a reasonable doubt. Issues such as the chain of custody of blood results, radio wave interference with the Intoxilyzer (Breathalyzer), the device’s maintenance records and the certification or qualifications of the person administering the test are all critical to your criminal defense
For more information on DUI defense in Pennsylvania or New Jersey, I encourage you to read the 2nd Edition of my book—5 Ways to Fight and Win Your Pennsylvania DUI Case
Are You Drunk? Calculate Your BAC from your DUI with the Widmark Formula
I’ve written previous articles on alcohol consumption and absorption as it relates to a person’s Blood Alcohol Content (BAC) in drunk driving cases. Most people have no idea how much alcohol it takes to go over the legal limit in Pennsylvania (.08 BAC). While some wrongly believe that they can estimate their level of intoxication based on the way they feel after drinking, a built up tolerance may provide someone with a false belief or confidence that they aren’t legally drunk.
Remember that while each of us has a different tolerance level based on our own alcohol consumption habits, we all expel (metabolize) alcohol from our bodies at the same rate–.015% per hour. This rate is the same for everyone regardless of body type, weight, height or what you drank (liquor, wine, beer) or the food that you consume (i.e. “eat some bread it will soak up the alcohol or drink some coffee to sober up.)
You can, however, roughly calculate your BAC without any devices with a mathematical equation known as the Widmark Formula. The equation is named for a Swedish Scientist, Erik M.P. Widmark (1889-1954) who was considered a pioneer in the field of forensic toxicology. His major contribution to this field was addressing alcohol’s absorption, distribution and elimination in people. These issue deal directly with concept of retrograde extrapolation which is using a person’s BAC level at a known time (the time of the breath or blood test) to estimate their BAC at earlier point of time (time of driving) driving under the influence (DUI) cases.
The Widmark formula calculates a person’s BAC with the following information:
- Amount of Alcohol consumed in a given period
The formula is as follows:
BAC = [Alcohol consumed in grams / (Body weight in grams x R)] X 100
The factors in this equation are defined as follows:
- R = Gender – a constant in this equation (.55 for females and .68 for males)
- Grams of Alcohol Consumed (Number of drinks x 14)
- To calculate this amount, you need to make the assumption that you are drinking “standard” sized drinks
- The standard sized drinks are as follows:
- 80 proof version of liquor (i.e. gin or whiskey) – 1.5 ounces
- Beer (5.0% alcohol) – 12 ounces
- Wine (12.0 alcohol) – 5 ounces
- In the United States, the standard sized drink continues 14 grams of alcohol
- Body weight in grams
- Body weight in pounds x 454 = bodyweight in grams
A 180 lb male who has drank 4 beers over the course of 2 hours will have the following BAC level.
4 beers x 14/ [(180×454) x .68)] x 100 =
56 / [55,570] x 100 = .10 BAC (above the PA legal limit of .08)
This, however, may not be an accurate BAC!
You must keep in mind that everyone metabolizes alcohol at the same rate–.015 an hour. You must therefore include this factor in the above equation. If our 180 lb male had been drinking for 2 hours, his BAC would be .10 -.030 = .07 BAC (below the legal limit)
Driver License Compact: Pennsylvania and Out of State DUIs (New Jersey, New York, Delaware)
A common question from clients is “if I was convicted of Driving under the Influence (DUI) in a different state can Pennsylvania (PennDOT) suspend my driver’s license?” This is an important issue because the Commonwealth shares borders with the following states:
- New Jersey
- New York
- West Virginia
While all of these states can obviously suspend your driving privileges within their borders for DUI, most people can adjust their driving destinations so that the suspension has no real effect on their driving capabilities. If you think about it, most people travel to states like New Jersey and New York for a week at the shore or to see some other tourist attraction for the day. Business travelers are the exception, but an Occupational Limited License for a specific state can also assist with a person’s ability to drive for work purposes only.
Pennsylvania does recognize out of state DUI convictions because the Commonwealth is one of 46 member states who have joined a Driver Licenses Compact (DLC). The DLC is an interstate agreement between states which was created to promote highway safety and traffic law obedience between member states. Under it, if a person is convicted of a DUI in New Jersey or New York (for example) those jurisdictions will report the conviction to Pennsylvania which the Commonwealth will then recognize. Pennsylvania, however, won’t suspend a person’s driver’s license because of an out-of-state DUI conviction if it’s the person’s first actual DUI. This means that the person can’t have any type of ARD – DUIs within PA or similar type non-trial/plea alternative programs in other member states.
If it is really the person’s first DUI, Pennsylvania will treat it as a violation of Section 3802(a)(2) prohibiting the operation of a motor vehicle with the blood content of at least .08 but less than .10. This offense doesn’t carry a license suspension in the Commonwealth.
If you’re convicted of a DUI in another state, it’s important that you don’t try to hide it from Pennsylvania during a driver license application. While Pennsylvania won’t suspend a driver’s license for a first time DUI defense outside of its borders, PennDOT does have the ability to cancel your driver’s license if they later learn that you failed to truthfully answer questions on their driver’s license application question pertaining to offenses and suspensions in other states.
Pennsylvania will also consider an out of state DUI conviction as a first offense if the prior conviction is more than 10 years old. The Commonwealth will treat any out of state DUI conviction the same regardless of your Blood Alcohol Content (BAC) level but additional criminal charges (vehicular homicide, substantial property damage, substantial physical injuries to another driver) may cause a suspension. The DLC not only recognizes DUIs but any felony type offense or other crime (manslaughter, negligent homicide) committed while operating a motor vehicle while in that state. Pennsylvania, however, like, Maryland and New York, doesn’t assess traffic points for minor moving violations (speeding, stop signs) outside of the Commonwealth. The following states aren’t members of the DLC:
For more information on drunk driving charges and defenses, I encourage you to read the second of my book—5 Ways to Fight & Win Your Pennsylvania DUI Case.