Driving Under the Influence (“DUI”) is a unique crime in American society because, quite literally, it is the one crime that almost any adult citizen can find himself or herself charged with. Alcohol is served at virtually every restaurant or evening social event. Every day thousands of otherwise-law-abiding citizens leave such events and drive away even though they are technically “under the influence” of alcohol.
The fact is that most adult Americans drink alcohol on at least occasional situations. And, most adult Americans live in non-urban areas where taxicabs and public transportation are not easy options, particularly in the evening hours. Everyone knows that it is preferable to have a “designated driver” who is not drinking and can drive you home. Everyone also knows that driving under the influence is illegal and can have severe ramifications. The reality, however, is that every day good and honest people find themselves charged with DUI.
It is important for all drivers to have a basic understanding of DUI law, how police officers conduct DUI investigations and the rights and options available to DUI defendants.
I. DUI Law — The Basics
For many people charged with DUI, the arrest process is truly terrifying and dehumanizing. Many (or most) DUI defendants pride themselves on being productive and positive citizens, so being handcuffed and treated like a criminal can be a life-altering experience. A DUI arrest is less overwhelming and intimidating, however, when people have a basic understanding of DUI law.
A person may be charged with DUI if he or she drives a motor vehicle on a roadway under the influence of alcohol or drugs. Police may stop a car for suspicion of DUI only if they have “probable cause” to believe that the driver has committed a crime or violation. Police may not randomly stop a car for no reason (although in the case of properly established “sobriety checkpoints, the police are permitted to stop every car that passes the checkpoint).
The type of “crime” which can justify a police vehicle stop includes potential violations of the vehicle code (traffic violations) such as speeding, straddling a lane, turning with a wide radius, following another car too closely, braking erratically or driving at night with the headlights off. The police may also stop a vehicle if the registration or inspection is out-of-date (based on dated stickers on the car) or if they input the license plate into their computer system (which they are allowed to do) and there is some problem with the vehicle registration.
Pennsylvania DUI law has a three-tiered punishment system depending on a person’s blood-alcohol level. Penalties for DUI convictions increase with each tier. The least severe penalty applies for those who drive with a blood alcohol content of.08 to.099 percent. More severe penalties apply for those who drive with a blood alcohol content from.10 to.159 percent, and the harshest punishment applies to those with a blood alcohol content of.16 percent or greater. A person’s blood alcohol level must be determined from blood drawn within two hours after the individual was in actual control of the vehicle (although exceptions exist for this two-hour “requirement”).
People who “refuse” or decline to take a blood-alcohol test upon request of the police are deemed to be in the highest blood-alcohol content tier.
Pennsylvania is one of the few states that has a “per se” law with respect to driving under the influence of various drugs. This means that if a person charged with DUI has any measurable amount of drugs in their system (even if the drug was ingested days or weeks prior to the arrest), they are punished as if they were in the highest alcohol level. Despite this “per se” law, some District Attorneys offices do have minimum levels for certain controlled substances and will not prosecute someone who drives with an amount in their system below these levels.
II. DUI Investigations After Police Are On The Scene
Police officers are taught that once they encounter a person who they suspect has been driving under the influence (which is typically after a traffic stop or arriving at the scene of an accident), they should conduct an appropriate investigation to confirm whether the person was driving under the influence. District Attorney’s offices want such investigations to be thorough and legally appropriate so that they can prove the case if it proceeds to trial.
The first stop in conducting such an investigation is typically to engage the driver in Standardized Field Sobriety Tests. Standardized Field Sobriety Tests were developed as the result of research conducted in the mid 1970s for the National Highway Traffic Safety Administration (“NHTSA”). The purpose of this research was to develop standardized tests which would provide a reliable method of determining whether a person is intoxicated based on field sobriety tests.
The NHTSA has concluded that three tests, if systematically conducted according to strict guidelines, can predict whether a person may be under the influence of drugs or alcohol. The only three field sobriety tests approved by the NHTSA are the Horizontal Gaze Nystagmus (“HGN”) test, the Walk-and-Turn test the One-Leg Stand test.
Police officers should be trained to look for established “scoring factors” or “clues” which must be evaluated in determining whether or not intoxication exists. A finding of intoxication should only arise once a certain number of clues are identified. If less then the certain level of clues are identified, the officer should conclude that there a high degree of probability of non-intoxication.
For cases that proceed to trial, it is important for defense counsel to carefully question police officers with respect to their field sobriety test training and adherence to NHTSA protocols. If a police officer is unsure of these protocols and/or the NHTSA-approved indicator system, his or her conclusions can lose credibility with a judge or jury.
These three standardized field sobriety tests are detailed below:
Horizontal Gaze Nystagmus (“HGN”) Test
Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes rotate in the socket. In theory, a sober person can visually follow a moving object smoothly and without nystagmus (“stopping and starting” of the eyeball). Nystagmus is typically exaggerated when a person is under the influence of alcohol, resulting in a jerking motion as the eyes rotate. In the HGN test, the officer slowly moves an object such as a pen or small flashlight back and forth in front of a person’s eyes and observes the actual eye movement. The examiner looks for three indicators of impairment with respect to each eye: (1) if the eye cannot follow a moving object smoothly, (2) if jerking is distinct when the eye is at maximum deviation, and (3) if the angle of onset of jerking is within 45 degrees of center. The NHTSA has concluded that if, between the two eyes, four or more indicators are present, the subject likely has a BAC of 0.10 or greater.
It is important to note that even the NHTSA acknowledges that the HGN testing correctly classifies approximately 77 percent of suspects. Accordingly, the HGN test will result in many false positives and cannot be considered a reliable indicator of intoxication. Indeed, the HGN is not admissible in Pennsylvania courts although police are permitted to use the test to establish probable cause to arrest. People taking certain prescribed medication may also “fail” the HGN test even though they are not intoxicated.
In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line and then turn on one foot before returning in the same manner in the opposite direction. The examiner is taught to look for seven possible indicators, or “clues”, of impairment. If two or more clues are identified, a person is considered to be likely intoxicated.
Significantly, the NHTSA concedes that only 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. Additionally, a person may have some reason unrelated to intoxication — such as a physical disability, high-heeled shoes, naturally poor balance — that makes it more difficult to complete the test. It is very important to point out these issues to a judge or jury when a case goes to trial.
One-Leg Stand Test
In the one-leg stand test, a person is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one thousand-one, one thousand-two, etc.) until told to put the foot down. The NHTSA protocols call for the examiner to observe the subject for 30 seconds. The officer looks for indicators of impairment including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.
The NHTSA itself admits that only 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. And, like the walk-and-turn test, there are many factors other then intoxication that can make it difficult for a person to stand on one foot for 30 seconds. Certainly there are many people who cannot stand on one leg for 30 seconds under any circumstances.
In analyzing the strength of a DUI case, it is important to carefully examine field sobriety test evidence. In many cases, police officers do not administer the test in full compliance with NHTSA guidelines. Cross-examining police officers with NHTSA protocols or even the police department’s own training manuals may expose a lack of knowledge and understanding in conducting these tests. At trial, all of these factors must be fully explored so that a judge or jury understand the fallibility of field sobriety testing.
III: Blood Alcohol Testing
Pennsylvania state law provides that the police may not perform a chemical test of a driver’s blood alcohol content (i.e., a breath test or a blood test) unless there are “reasonable grounds” to believe that the driver was operating a vehicle under the influence of drugs or alcohol. As described above, the police use field sobriety tests to help develop “reasonable grounds” to submit motorists to chemical testing.
By law, people who drive a vehicle in Pennsylvania are deemed to have given their consent (agreed) to provide a breath, blood or urine sample when requested to do so by the police if (and only if) the police have reasonable grounds and have arrested the person for DUI. Motorists who refuse chemical testing (assuming reasonable grounds to arrest exist) will have their license suspended for at least one year by PennDOT, and the fact that they “refused” the test may be used against them at trial.
From a defense standpoint, it is important to carefully examine whether the police appropriately developed “reasonable grounds” to believe a driver may have committed a DUI. Where “reasonable grounds” are found not to exist, all subsequent chemical testing may be suppressed.
Alcohol is absorbed into the body through the stomach and small intestine over time. Alcohol has no physiological effect on the body or brain until it is absorbed into the blood stream. The rate at which alcohol is absorbed into the blood stream depends on many factors including the type of alcohol and whether the person has a full or empty stomach. Food in the stomach significantly delays the absorption of alcohol and reduces the peak level of blood-alcohol content. Regarding the type of alcohol, the ingredients in beer act almost like a food and delay the absorption of the alcohol as opposed to liquor or wine. Alcohol is eliminated from the body at approximately 0.015 % per hour.
The two most common chemical blood tests are blood testing and breath testing.
Pennsylvania law requires employees at to withdraw blood samples on DUI suspects unless there are emergency situations at the time the request is made. Pennsylvania law also requires that blood (and urine) tests be performed at licensed and approved clinical laboratories using approved testing methods and equipment.
It is important to carefully examine blood test results to determine if the variance or margin of error may include the possibility that the true blood-alcohol content was in a lower tier or below 0.08 percent altogether. If a person’s blood-alcohol content is tested to be, say, 0.10 percent, no toxicologist (or prosecutor) can say with any certainty that the person’s actual blood alcohol concentration was above or below this level. Virtually every toxicologist will concede that there is a variance of 3 to 10 percent within which the actual blood alcohol content would likely fall.
Importantly, the Department of Health requires laboratories conducting blood-alcohol testing to test within 9 percent of a “known sample” in order to maintain their accreditation. Accordingly, many toxicologists contend that the margin of error of blood testing at such accredited labs should be presumed to be no less that 9 percent.
Even if someone elects to seek admission into the Accelerated Rehabilitative Disposition (ARD) program or plead guilty to DUI it is important to evaluate whether the documented blood-alcohol content can be reduced using a margin-of-error analysis. Anyone charged with DUI should carefully review all of these issues with an experienced criminal defense attorney.
Police frequently test blood-alcohol content by subjecting the motorist to a “breathalyzer” machine. These machines are different from — and much more sophisticated than — the “portable breath test” units police use to test blood-alcohol content at the scene of the stop. To be admissible at trial, breath tests must be conducted in conformity with regulations set forth by PennDOT. These regulations require the machine to be regularly calibrated and the person operating the test to be appropriately certified. Additionally, the regulations require that two breath test samples be taken which must be within 0.02 percent of each other. A failure of the police to comply with any of these regulations can result in the results being suppressed (ruled inadmissible) at trial.
As with blood testing, breath test results have a margin of error that should be considered in determining a person’s actual blood-alcohol content.
IV: Accelerated Rehabilitation Disposition Program (ARD)
People charged with a first offense DUI in Pennsylvania may be eligible for the Accelerated Rehabilitative Disposition (ARD) program. ARD is a pre-trial intervention program that is designed to divert first-time, non-violent offenders from the criminal justice system.
Admission into the ARD program results in no jail time and a greatly reduced license suspension. District Attorneys’ offices are permitted to have their own unique criteria and conditions for admission into an ARD program. It is important to understand that cases that may qualify for ARD in one county might not for another. It is also important to understand the procedures defendants must follow in each county to be eligible for ARD.
While some ARD terms and conditions are negotiable, there are certain terms and conditions that are imposed by statute and are non-negotiable. A person admitted into ARD must serve six to 24 months of non-reporting probation and will have to attend and successfully complete Alcohol Highway Safety School, undergo a Court Reporting Network (CRN) drug and alcohol evaluation and pay certain fines and costs.
Once a person has successfully completed the ARD program, the criminal charges are legally dismissed. The person may then file a petition with the court to have all records of the arrest expunged from his or her criminal background history report.
It is important to note that when a person is charged with DUI following an accident with injuries or property damage, or if a person has an extremely high blood alcohol level, he or she may not be entitled to admission into the ARD program.
V: Typical Defenses to DUI Charges
Naturally, it is impossible to list all the potential defenses to a DUI case because every DUI case is different. Many defenses to DUI cases, however, involve one or more of the following theories:
Was the person actually driving? To prove a DUI case, the prosecution must prove that the defendant was physically in control of a motor vehicle on a roadway. If the police cannot prove the person was actually driving (such as in the case of an accident where no one witnessed who was driving or if someone is asleep in a parked car) or that the person was driving on a roadway (such as when a person is stopped in certain parking areas or driveways), the person may have a legitimate defense to the charge of DUI.
Did the police have probable cause to stop the vehicle and question the defendant? The police need to have probable cause to stop a person’s vehicle, question that person and conduct a subsequent investigation unless a Constitutionally-recognized exception applies. Generally speaking, evidence will be suppressed in a DUI case if the officer did not have probable cause to (a) stop the vehicle, (b) detain the person, and (c) arrest that person. Sobriety roadblocks can present an exception to the “probably cause” standard and present a different set of legal and factual issues.
Was the person read his rights / Miranda warnings? Incriminating statements may be suppressed if the proper Miranda warnings were not given at the appropriate time if a person was subjected to custodial interrogation. Miranda warnings are usually not an issue in DUI prosecutions because prosecutors rarely seek to use a person’s words against them at a DUI trial. However, if the prosecutor does seek to use the person’s words at trial, the Miranda warnings can become an issue.
Was a person appropriately informed of the Implied Consent warnings? If the officer did not advise a person of the consequences of refusing to take a chemical test as part of a DUI investigation, or provides inadequate or incorrect information, then any PennDOT suspension for failing to take such a test can be avoided.
Did the person truly appear to be “under the influence”? At a DUI trial, a police officer is generally allowed to offer his or her opinion regarding whether a driver was intoxicated. Naturally, an officer’s observations and opinions in this regard can be cross-examined. Appropriate questioning can include (1) the nature and circumstances surrounding any field sobriety tests (was the weather a factor? did the defendant have any pre-existing medical issues? was the defendant wearing shoes or clothing that affected field sobriety testing) (2) the subjective (and perhaps predisposed) nature of what an officer considers as “failing” a field sobriety test, (3) whether the officer complied with standardized field sobriety guidelines, and (4) whether the field sobriety tests were witnessed by any third party or videotaped by the police.
Was the person’s blood-alcohol concentration tested accurately and appropriately? There are a wide range of potential issues with blood, breath and urine testing for blood-alcohol content. Blood testing involves a recognized margin of error and variance which must be considered in evaluating test results. Many toxicologists contend that the margin of error of blood testing at state-accredited labs should be presumed to be no less than 9 percent. With respect to breath tests, some toxicologists maintain that the margin of error ought to be considered at 10 percent. Most toxicologists agree that it is also important to understand the physiological makeup of the person charged (male or female, height and weight) before offering a final opinion on the appropriate margin of error or variance with respect to blood alcohol testing.
Driving Under the Influence is a charge that can affect almost anyone. Most people drink alcohol at least occasionally and live in areas where taxicabs and public transportation are not always a realistic option. The result is that many people find themselves, at some point in their lives, driving an automobile after consuming alcohol.
A DUI charge is almost always a traumatic and upsetting experience to the person charged. Many DUI defendants are good and law-abiding persons who are not used to being charged with a crime or being required to appear in court.
Fortunately, our law recognizes that people charged with a first-offense DUI frequently deserve a second chance at a clean criminal record. With the availability of first-time offender’s programs such as ARD, many people in our society have been charged with DUI, navigated through the system, and emerged from the process to live productive and fulfilling lives.
It is important for anyone charged with a DUI to have a basic understand of the law and the available rights and options. Armed with this information, and appropriate legal representation, persons charged with DUI can address the charges in a responsible way and ultimately put the entire experience behind them.