If you have been arrested for DUI/DAI it is essential that you contact an experienced DUI/DAI attorney to thoroughly go over your case with you.
At the Law Offices of Basil D. Beck III, I will give you or one close to you, a free consultation so we can go over what has happened and best to achieve the best possible result in your case. I have been servicing the Southeastern Pennsylvania counties of Montgomery, Bucks, Chester, Delaware and Philadelphia for almost 20 years. With that in mind, here is an overview of how a DUI happens and what happens when it filters its way through the legal system.
DRINKING OR INGESTING DRUGS
The majority of DUI/DAI arrests occur after a person had been at a bar or restaurant and has consumed alcohol. There is no hard and fast rule as to how many drinks one can have, and over what period of time, for the purposes of determining whether they are over the legal limit of blood alcohol concentration (%.08). There are formulas published that may be used as guidelines to determine blood alcohol levels but keep in mind that these are rough estimates and the only way to operate a motor vehicle safely in these situations is by not drinking prior to operation.
A person may also place themselves in danger of a DUI/DAI arrest if they have ingested drugs, illegal or legal, prior to driving. When drugs are in a driver’s blood stream a crucial distinction must be understood: If you have ANY illegal drugs in your blood stream, no matter when they were ingested, it is against the law to operate a motor vehicle. When legally prescribed drugs are involved you may not operate a motor vehicle if you have ingested them in such doses as to render the driver impaired to the point where they can't operate a motor vehicle safely.
THE MOTOR VEHICLE STOP
In today's society, law enforcement in all states are vigilant in their pursuit of drunk drivers. The police officer's first contact with a suspected drunk driver is when that driver's car is pulled over by police. This is known as a motor vehicle stop. With few exceptions, police officers may lawfully stop a vehicle in the following situations:
- The officer observes the driver commit a motor vehicle violation;
- The officer, based on a "totality of the circumstances", forms a "reasonable suspicion" that the driver is committing a DUI/DAI violation or that some other criminal activity has or is occurring;
- Pursuant to a lawfully executed sobriety check point, commonly known as a "roadblock"
As a general rule, if one of these conditions is not met, the stop of the vehicle is unlawful and is a defense to the charge of DUI.
Once the motorist's vehicle is secure on the side of the road pursuant to the stop, the officer will then make a determination as to whether the motorist is impaired. The officer's first encounter with the driver will be when he comes to the driver's side window and asks the driver to roll their window down for the purpose of informing the driver the reason for the stop and to gather the driver's credentials. It is at this point that the officer will be trying to detect clues (odor of alcohol or drugs, glassy eyes, slurred speech, fumbling of paperwork, "nervousness", and others indications that that the driver may be intoxicated.
In the event the officer detects one or more of these clues he will then ask the motorist to exit the vehicle for the purpose of performing "field sobriety tests". While there are many kinds of tests that officers employ from township to township and among State Police, only three are recognized by the National Highway Traffic Safety Administration. There is the "walk and turn" test. This is where the officer asks the motorist to walk nine steps on a straight line and then turn around and take nine steps back. There is the "one leg stand" test. The motorist is asked to stand straight up, arms at their side, and to hold one leg off the ground for predetermined length of time. Lastly, there is the "horizontal gaze nystagmus" (HGN) where the officer attempts to determine how long the eye can follow a moving object before the eye ball "twitches" or "jerks". The motorist may also be asked to submit to a "portable breath test" (PBT) which provides the officer with a rough measure of the driver's blood alcohol concentration.
Once the officer completes the field sobriety testing, he will then make a determination, based on the totality of the circumstances he has observed, whether there is reasonable suspicion to believe that the driver is driving DUI. If the motorist is arrested and a court later rules that the police officer did not have "reasonable suspicion" to arrest the driver in the first place, none of the evidence gathered will be admissible in court.
THE ARREST
Usually, this is not an important stage of a DUI/DAI case. When an officer suspects someone has operated a motor vehicle DUI/DAI, the motorist will be handcuffed, possibly read their rights, and then placed in the back of a police vehicle. Their vehicle will be towed from the scene. They will then be taken to a police station for the purpose of giving the driver a breathalyzer or a hospital where the driver will ask to submit to a blood test.
THE CHEMICAL TEST
The police will attempt to determine blood alcohol through the use of a breathalyzer which is kept at the police station OR through a blood test which is given at a hospital. A blood test, in addition to revealing a blood alcohol level, will also reveal whether any drugs are in the driver's bloodstream.
Prior to submitting to either of these tests, the officer will read a DL-16 form provided them by the Pennsylvania Department of Transportation. This form will put the motorist on notice that they have no legal right to refuse the chemical test as well as setting forth the penalties as a result of the refusal.
It should be noted that during this entire testing process, the police must follow guidelines that are set forth for them by PennDot and the Pennsylvania Code. Failure of the police offer to properly follow these procedures oftentimes provide the motorist with a valid defense to the charge of DUI/DAI. This is an area where an experienced DUI attorney may exploit for the benefit of his client in that police officers do not always satisfactorily comply with the proper procedure.
THE PRELIMINARY ARRAIGNMENT
Once the arrest process and the chemical testing is complete, the police officer will transport the defendant to a District Court for the purpose of making the defendant aware of the substance of the criminal charges against him as well for setting bail. In the vast majority of cases, the defendant is released without having to post any money. Once the motorist is arraigned, they will receive the police report from the court as well as a notice for their preliminary hearing.
THE POLICE REPORT
The police report is made up of a piece of paper setting forth what crimes the defendant has been charged with as well as police narrative of the events surrounding the arrest. This narrative is known as the "affidavit of probable cause"
The Affidavit is the officer's account of what happened that led to the criminal charges. The DUI/DAI defendant should bear in mind that it is fairly common for the officer's version in the Affidavit to differ a bit from the defendant's recollection. The facts contained within the Affidavit are crucial when assessing the merits of one's legal defense.
INITIAL CONSULTATION WITH ATTORNEY
When the defendant first consults with an attorney, the attorney will carefully go over the affidavit of probable cause while comparing it with the client's recollection of what happened. Lots of questions will be asked of the client for the purpose of obtaining pertinent information as well as resolving inconsistencies between the Affidavit and the client's memory of the events. When the trained DUI/DAI attorney has collected all this information he can then begin to advise his client how to proceed. In the event that the DUI offense is the client's first, and the client has no criminal record, the attorney may advise the client to apply for the Accelerated Rehabilitative Disposition program, known most commonly as ARD. In the event a client makes application and accepted into ARD by the District Attorney's Office, this option allows for the client to serve a term of non reporting probation, pay court fines, complete community services, attend safe driving school, and submit to a drug and alcohol evaluation. If the client completes this program the Court will dismiss the charges and the client will be able to get his or her criminal record expunged.
If the current charge is a second or subsequent offense, the client is not eligible for ARD. In this case, the defense attorney must assert the client's defense in the courtroom and the first stage of that defense is the preliminary hearing.
THE PRELIMINARY HEARING
The Preliminary hearing is the first opportunity is the first opportunity for the defendant to examine and test the evidence that supports the Commonwealth's case. The hearing takes place at the district court that has jurisdiction over the geographic area where the alleged offense occurred. The District Justice's sole function is to hear all the evidence presented by the Commonwealth and the defense and to determine where the evidence is sufficient to send the case to the Court of Common Pleas for the defendant to stand trial. If the judge decides that there is not sufficient evidence to support a charge it will be dismissed. The Judge at a preliminary hearing does not determine the guilt or innocence of the defendant.
A defendant, upon advice of counsel, may elect to waive their right to have a preliminary hearing. The client may do this by signing a form indicating that he is aware of all of his rights and concedes that the Commonwealth has enough evidence to proceed to trial. This is not a guilty plea. This is commonly done when the "waiver" is made in exchange for a Commonwealth agreement to reduce the defendant's bail or for a withdrawal of one or more of the charges. The defendant will almost always waive their preliminary hearing if they are eligible for ARD. In the DUI context is almost never a good idea to waive this hearing.
When a preliminary hearing is held, the Commonwealth will present all the witnesses necessary to establish that there is probable cause for the defendant to stand trial on the charges. This includes evidence may include, among other things, police testimony, laboratory reports, breathalyzer results, and the defendant's driving record. Defense counsel will cross examine all Commonwealth witnesses for the purpose of demonstrating that the Commonwealth does not have enough evidence to compel the defendant to stand trial or, as is more often the case, to gather testimony that will assist the client in a defense that he will assert at trial. In most cases, the latter is why the attorney will be conducting the hearing. When the defense attorney is seeking to build a defense for his client, gathering testimony at the preliminary hearing is not only valuable but crucial. The testimony is captured on an audio tape or disc and is transcribed by a court reporter to be used later. When the hearing is concluded, and if the judge finds sufficient evidence to hold the case for trial, the District Justice will supply the defendant and his counsel for a formal arraignment date. When the attorney enters his appearance for the defendant in the Court of Common Pleas, he will waive the defendant's appearance at the hearing.
Once the preliminary hearing stage has been concluded the case will proceed to the Court of Common Pleas . At that point, the attorney will request what is called "discovery" on behalf of his client. In the DAI/DUI context, the discovery will be comprised of all documentary evidence that the Commonwealth may use against the client at trial. This documentation includes, but is not limited to, the following : all police reports regarding the arrest, breathalyzer results, breathalyzer certifications, certification of the officer who administered the breathalyzer, lab reports, audiotapes, videotapes, the client's criminal record (if any), and the client's driving record. This information will give the attorney an even clearer picture of the strengths and weaknesses of the Commonwealth's case. There are times when the Commonwealth will not provide the attorney with all the documentation the client is entitled to. This may necessitate the filing of documents by the client's attorney asking the Court to compel the Commonwealth to provide the requested information. It is imperative that the DAI/DUI attorney secure every piece of discovery so that he can provide the best representation.
PRE-TRIAL MOTIONS
In the vast majority of cases that result in the client's acquittal, the reason for the acquittal is that the the Court has granted the defendant's pre-trial motion which results in the Commonwealth's case becoming too poor to proceed further to trial. In my opinion, this is the most important aspect of DAI/DUI practice. Likewise, the most important motion that is filed by the defendant's attorney is the Motion to Suppress Evidence. While there are other motions, this particular motion seeks to block the admission of facts into evidence that are critical to the Commonwealth's case. This exclusion would be based on the some illegality in the evidence gathering process. The most common reasons to exclude evidence are as follows:
- The police did not have "reasonable suspicion" to stop the defendant's motor vehicle;
- The police did not have probable cause to arrest the defendant for DAI/DUI;
- The police did not follow proper procedure in ascertaining the defendant's blood alcohol level;
If a judge finds one of the above to be true, the Court will not allow evidence such as the client's blood alcohol results, statements by the defendant, and/or products of searches by the police, into a trial. When this happens, the Commonwealth will very often find themselves no longer to convict at which time they may extend a very favorable plea offer to the client (public drunkenness, disorderly conduct, etc) or may move to withdraw the charges entirely. When the client finds themselves on the winning end of this Motion, they have kept their driver's license and stayed out of jail.
THE TRIAL
When the client finds himself in a trial, the issues are narrow and very often the assert the following:
- The defendant was not "operating" a motor vehicle at the time of the alleged offense;
- The defendant was not operating a motor vehicle on a public road within the Commonwealth of Pennsylvania;
- Whether, based on police or other eyewitness observation, the defendant was operating a motor vehicle when he or she was impaired to the point where they could not operate a motor vehicle safely;
- The Defendant was not the person operating the motor vehicle.
While there are other trial issues, the above are the most often seen in our County courts. Depending on the whether the client is being tried for a first or subsequent offense, the client is not entitled to a jury trial unless the grading of the crime is high enough and whether there is jail time involved upon conviction, at which time the attorney and client may elect to have a trial by judge or a trial by jury. As in all criminal trials, the Commonwealth must prove, beyond a reasonable doubt, each and every element of the crime of DUI in order to secure a conviction.
For a free consultation please contact my Norristown, Pennsylvania, office at 610-239-8870. As your lawyer, I will provide the strategic advocacy and dedicated service you can trust to drive results.
