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 Checkpoints: What makes them constitutional in Pennsylvania?
The summer is almost here and so is an increased police presence on the highways and roads. This means that at least some of us will run into a DUI checkpoint. In Pennsylvania, the random stop of a car or other motor vehicle is unconstitutional but federal and Pennsylvania law do, however, 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 provided that the police satisfy certain requirements. The Commonwealth, however, through the assistant district attorney, 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 balance 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 cases 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.
A Pennsylvania Court will find a DUI roadblock or any checkpoint constitutional if it meets the following requirements:
- The vehicle 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
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.
Roadblocks create a variety of pre-trial issues for your attorney to argue in your case. If your attorney doesn’t attack these issues and focus argument on them, he/she simply doesn’t understand the law. A pre-trial motion to suppress evidence discovered after a stop or arrest at a roadblock is a powerful defense tool. If the motion is successful, the prosecution won’t be able to use critical pieces of evidence against you at trial. The most important piece of evidence at a DUI trial are the results from a chemical test (blood or breath). Remember that there are 9 types of DUI charges in the Commonwealth and the severity of these drunk driving charges depend on a person’s BAC level. A motion to suppress may also focus on the results of a field sobriety test given prior to an arrest.
For more information on DUI in Pennsylvania, read 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!
What you need to know about a first time New Jersey DWI?
Many of my readers will spend a large amount or even the entire summer in New Jersey. While Pennsylvania and New Jersey share bridges and boarder, they’re very different when it comes to drunk driving. Unlike Pennsylvania, New Jersey doesn’t maintain a diversion program for 1st time DUI offender otherwise known as Accelerated Rehabilitative Disposition (ARD).
Prosecutors in New Jersey aren’t permitted to plea bargain DWI cases. They are, however, permitted to reduce the severity of DWI charge to a lesser tier (lower BAC) under what is known as “prosecutorial discretion. “ For example, if you were charged with a DUI for a Blood Alcohol Concentration (BAC )of .10, the prosecutor is permitted to reduce it to a lesser DUI charge (.08 – less .10) if he can articulate to the judge why he is reducing the severity of the charge. A lesser DUI charge means less of a license suspension (7 month to 3 months) and less of fine so it’s an important concept.
To get this “Tier Drop” your New Jersey DWI attorney must identify issues such as the lack of probable cause for the car stop, your arrest and possible challenges to the results of the Alcotest. These issues will challenge the constitutionality of the case against you and the ability of the prosecution to establish reasonable doubt. This is the only way to get the prosecutor to reduce the severity of your DWI charge.
Remember that in New Jersey, a person is guilty of drunk driving if he/she operates a motor vehicle with a blood alcohol concentration (BAC) of .08% or greater. N.J.S.A 39:4-50. A person who is guilty of a first time DWI in New Jersey where the BAC is .08% or higher, but less than .10%, faces the following:
- Fine of $250.00 – $400.00,
- A Maximum of 30 days in prison,
- A Minimum 3 month license suspension,
- A Minimum of 12 hours at an intoxicated driver resource center, and
- An automobile insurance surcharge of $1,000.00 for 3 years. (See P.L. 2003, chapter 314).
A first DWI offender who has a BAC of .10% or higher or impaired with drugs while driving, faces the following for a 1st Offense DUI conviction
- A fine $300.00 – $500.00,
- A maximum of up to 30 days in jail,
- A minimum license suspension of 7 months,
- A minimum of 12 hours at an intoxicated drivers resource center, and
- An automobile insurance surcharge of $1,000.00.
- In cases where a BAC is .15% or higher, a person is subject to all of the above penalties, in addition to an ignition interlock device for a period of 6 months – 1 year after license restoration.
In addition to the conviction and license suspension, New Jersey also has some unique fines which are the following:
- A $100.00 fine to the Drunk Driving Enforcement Fund,
- A $100.00 fee to the Motor Vehicle Commission,
- A $100.00 fee to the Intoxicated Driver Program,
- A $50.00 fee to the Violent Crime Compensation Fund Fee, and
- A $75.00 fee to the Safe and Secure Community Program Fund.
Obviously if your defense is strong enough, you may want to consider rejecting all plea offers and going to trial. Proper DWI case preparation should always include possible pretrial motions such as a Motion to Suppress the evidence against you due to a violation of your rights under the 4th and 14th Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution.
If your Motion to Suppress evidence is successful your case could be dismissed before trial. If your case does precede to trial your defense counsel should focus on the following issues: actual physical control of the motor vehicle; field sobriety test administration and the administration; and results of the Alcotest to determine BAC.
DUI and Field Sobriety Testing: Should I refuse to “walk the line?”
This Memorial Day weekend will bring with it an increased police presence focused on stopping drunk drivers in Pennsylvania! My previous articles on DUI have focused on topics such as reasonable suspicion, probable cause, and the elements which make up a DUI defense in Pennsylvania (control, impairment, and BAC). If you’re charged with DUI it’s important that your criminal defense attorney focus on pre-trial and trial issues because overlooking either could seriously jeopardize your case.
Field sobriety testing is an area that can cause a problem for the prosecution at trial or during a Motion to Suppress Evidence (pre-trial level). At the pre-trial level your criminal defense lawyer can argue that an improperly conducted field sobriety test should be inadmissible and therefore not used to determine if police had probable cause to arrest you for suspicion of DUI.
At the trial level, a violation of Section 3802a(1) (general impairment) doesn’t require the prosecution to establish a specific BAC level. A police officer, however, will have to testify that the driver was unfit to operate a motor vehicle safely on the streets and roads of Pennsylvania. The testimony regarding the results of a field sobriety test can assist the prosecution’s case especially where the officer didn’t see the person drive the car but found him in control of it. It’s important to keep in mind that the prosecution doesn’t need proof that the officer saw a person operate the car but only that he was in control of it! In Pennsylvania a person can be convicted of Driving under the Influence if the car is parked and the keys are in the ignition.
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.
Where are your car keys? Why it matters to your Pennsylvania DUI
Drunk driving defense is often about looking at minor details and determining how your defense can make them big issues to establish reasonable doubt in your criminal case in Pennsylvania or any jurisdiction. Prior to trial, your criminal defense lawyer should look at issues like reasonable suspicion and probable cause to stop and arrest along with the chemical testing procedure (blood test or breathalyzer). At a DUI trial, however, the prosecution must establish that you were in control of the vehicle in addition to the other elements of impairment and unsafe driving. While the issue of control is sometimes obvious because the police stop a driver who is clearly operating the car this isn’t always the case especially in situations involving motor vehicle accidents or where someone contacts police regarding an alleged drunk driver who is already out of the car.
Remember the prosecution must establish that a person was driving under the influence within two (2) hours of their arrest in order to establish guilt beyond a reasonable doubt for the most serious DUI charges (see my article on the 9 types of DUI). Section 3802(b) for example prohibits the operation, driving, or being in actual physical control of the movement of a vehicle after an individual has “imbibed” (drank) a “sufficient” quantity of alcohol such that their blood alcohol concentration (BAC) is equal to or greater than .10 but less than .16 within two (2) hours of driving. Section 3802(c) is similar to Section 3802(b) the only difference is that 3802(c) requires that the prosecution prove a BAC of .16 or greater. If police didn’t see a person drive the car, however, one of the critical pieces of evidence to establish this element (control) is the location of a person’s keys.
If, for example, the keys are in the ignition and the person is seated behind the wheel this is very strong direct evidence that the person was driving the car or at least in actual physical control of it (which is just as bad for DUI case.) If the car keys, however, are out of the car or even on the seat, the prosecution will likely need a witness to testify that a person was actually driving the car in order to establish guilt for the more serious DUI sections.
The prosecution still, however, may prove that a person is guilty of general impairment (Section 3802 (a)(1)) provided that a police officer can testify that a person wasn’t fit to operate a motor vehicle safely. Even with this section, however, the prosecution must still prove the person was actually driving the car so it would still need a witness to testify as to actual physical operation. The two (2) hour window rule doesn’t apply to Section 3802(a)(1) because BAC isn’t an element of this offense.
Remember keys in the ignition are bad for your DUI case and obviously answering any questions with regards to if you were driving a car are extremely bad for your DUI case. My advice is to always remain silent and not answer any questions which the police officer poses to you about your operation of the car. The burden of proof is always on the prosecution and never on the defense. Answering a question simply gives the prosecution more evidence to use against you. For more information about DUI defense I encourage you to read my book, 5 Ways to Fight and Win Your DUI Case.