First hypothetical.  The police open the center console of the woman’s car and find the cocaine contained in a single plastic bag.  With it, the police find a smoking pipe and a rolled up dollar bill.  The search turns up no money.  The police decide to charge her with simple possession.

Now this hypothetical.  The police find the same amount of coke but change the following facts:  the cocaine is stored in 5 individual bags, there is $300 in cash along side of it along with a cell phone.  In the back seat, there is a small measuring scale and a “cutting agent” used to mix with the cocaine.  The police decide to charge her with Possession with Intent to Distribute?

Why?  Well, in the second hypothetical, there is indication of intent to sell the cocaine represented by the packaging, the money, the phone, the cutting material, and the scale.  As they say, the drugs are “possessed to move”.   In the first hypothetical, while the actual weight of the cocaine is the same, it is evident from the pipe and the bill, that the woman is possessing the cocaine for personal use and not to sell.  Hence, while we are dealing with two “eight balls”, the facts under the two scenarios differ greatly and lead to two different conclusion by the police.  When its comes to PWID cases, its more than just the weight of the drugs, but also the context the police find it in.

When a person is admitted into ARD for a DUI, that person can serve a license suspension of either 30 days or 60 days, depending on their blood alcohol content at the time of their arrest.  Once that person completes the suspension they must pay a “restoration fee” to PennDot before their license or driving privileges will be reinstated.  Not paying this fee, even when their term of suspension has been served, can have very serious consequences.

Under the law, an ARD suspension does not end until the restoration fee has been paid.  I have represented clients who have completed their term suspensions only to forget or ignore the requirement to pay the restoration fee.  The scenario that plays out is that the client is pulled over and their license is run by the police.  The failure to restore the license causes the license to come back suspended and the police officer then writes a ticket for Driving While Suspended – DUI Related.  Upon conviction, this charge carries with it a $1,000 fine, a one (1) year loss of driver’s license, and a mandatory 90 days in jail.   So it is easy to see why it is important for a person to be vigilant about paying a simple administrative fee.  As is evident from the above, an ounce of prevention is truly worth a pound of cure.

In the event the officer detects one or more of these clues he or she 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:

1. The “walk and turn” test. The officer asks the motorist to walk nine steps on a straight line and then turn around and take nine steps back.
2. The “one leg stand” test. The motorist is asked to stand straight up, arms at his or her side, and to hold one leg off the ground for predetermined length of time.
3. The “horizontal gaze nystagmus” (HGN) where the officer attempts to determine how long the eye can follow a moving object before the eyeball “twitches” or “jerks.”

In addition, the motorist may be asked to submit to a “portable breath test” (PBT), which provides a rough measure of the driver’s blood alcohol content.

Once the officer completes the field sobriety testing, he or she will then make a determination, based on the totality of the circumstances he or she has observed, whether there is reasonable suspicion to believe that the driver is driving under the influence.

It is important to know that if a court finds the police officer administered the field sobriety test incorrectly that this can serve as a basis for the defendant’s DUI case to be dismissed outright.

The Pennsylvania DUI statute  has two twists, as it regards drugs, that make distinguishes it from many of the other drunk driving laws across the country.  Firstly, the Pa. statute (75 Sec. 3802) makes it illegal to operate a motor vehicle with any Schedule II or III controlled substance in the system (as defined in The Controlled Substance, Drug, Device, and Cosmetic Act).  For example, an example of a Schedule II or III drug would Codeine.  Under the Pa. Law, if an individual operates a vehicle with any (in bold) amount of Codeine in their system, and that person does not have a prescription for it, then its a DUI under Pa. law.  There is no requirement that the individual be under the influence of the drug.  Example:  A Montgomery County man suffers a headache and takes a Codeine pill from his wife who has a valid prescription for it from a doctor for back pain.  Two days later, the man is pulled over by the police, his blood is taken, and the laboratory results come back showing nothing but the Codeine in his system.  He has no prescription for it, his wife does.  Thats a DUI.   Fair?  Fair has nothing to do with it.

The Pa. law also provides that no illegal drugs can be in your system whatsoever or for any reason.   While this may make more sense to most people, consider the following scenario:  A man from West Chester smokes a small amount of marijauna at a party.  Two weeks later he is pulled over by the police and his blood his tested.  He has not consumed alcohol that day or done any drugs since the night of the aforementioned party.  In fact, he is not impaired at all but perfectly sober.  The lab results come back and shows positive for marijuana – the same marijuana from two weeks prior.  This is because marijuana can stay in the system for up to thirty (30) days – and this is a DUI.

I have seen plenty of each of these in my practice as a Pennsylvania DUI Defense Lawyer.  With regards to the mixture of driving and drugs:  To be forewarned is to be forearmed.  Drive safely.

The first breathalyzer test that is often given by police is at the scene and often by the side of the road.  This is actually a portable breath test, commonly called an alco-sensor, that the officer will ask the individual to breath into for so the officer may determine roughly how much alcohol, if any, the driver has had.  The purpose of this test is to give the officer probable cause to arrest the driver for DUI.  When the portable breath test, most often given in conjunction with other roadside tests like the walk and turn and the finger to nose, indicates a high measure of alcohol, the driver will very often be arrested for suspicion of DUI.  Two things to remember about this test:  the actual numerical reading of the alco sensor is not admissible in evidence to prove a driver’s blood alcohol content.  Its sole purpose is to give the officer probable cause to make an arrest.  Secondly, a motorist cannot be penalized for his or her refusal to submit to the test.   The alco sensor is always used pre-arrest and it is technically regarded as a “field sobriety test” by law enforcement.

The second breathalyzer test is given post arrest and administered at the police station.  This is where the officer takes the driver to a table and has them seated in front of the breathalyzer machine.  They will be asked to provide two samples.  Once the individual blows into the machine it will spit out a numerical readout of an individual’s blood alcohol content.   These are the results that may be used in court to show your blood alcohol content.   The most important thing to know about this test is that the motorist has no right to refuse to give a sample.  If they do, this will be deemed a “refusal” by the police officer.  The officer will then notify PennDot of the refusal and the motorist will receive a notice from PennDot advising them that their driving privileges will be suspended for one (1) year as a result of the refusal.  In short, don’t refuse the breathalyzer because  in 99 times out of 100, it only makes things worse.

Drive safely.

The scenario that occurs far too often goes something like this:  A driver gets a ticket for an offense such as speeding and forgets about, or ignores, the ticket.  The District Court that has jurisdiction over the area where the ticket was given then sends notice to PennDot that the driver has not  responded to the ticket.  PennDot then suspends the driver’s license.   To get the license “unsuspended”  the driver need merely perform the simple task of contacting the court and responding to the ticket by pleading guilty or not guilty.  The Court will then contact PennDot and the license will be restored.

When the driver catches the suspension early he or she can avoid a lot of trouble but too often I have seen a client come to me with a ticket for Driving While Suspended because they were pulled over during the period when they failed to respond to a citation and had  their license suspended.  Now, not only is here the original ticket that was never responded to, but there is also a ticket for Driving While Suspended where, if the driver is convicted, their license will be suspended for a period  one (1) year by PennDot.  No calling the Court.  No second chances to fix things.  The conviction triggers this mandatory suspension.   Drivers who are less than attentive can accumulate multiple Driving While Suspended Tickets and multiple years of suspension.  The driver is literally digging a hole that just keeps getting deeper.

The point of it all?  When you receive a ticket respond to it in a timely manner by mailing the  portion of the ticket that requires you to plead “guilty” or “not guilty”.  If you feel you need an attorney, get one.   Don’t get yourself suspended for being slack and letting the ticket slide too long.  An ounce of prevention is indeed worth a pound of cure.

It is important to know that 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 driving under the influence (DUI) or driving after imbibing (DAI) violation or that some other criminal activity has occurred or is occurring
• Pursuant to a lawfully executed sobriety checkpoint, 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 can be used a defense to the charge of DUI. Prosecuting attorneys will try to make a compelling argument that all of the conditions were met and that your stop was legitimate.

It is at this point that you need a skilled lawyer on your side to defend your rights, and hold both the court, and the prosecution to the law.

The majority of driving under the influence (DUI) or driving after imbibing (DAI) arrests occur after a person had been at a bar, restaurant or private party 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, before becoming intoxicated. Under Pennsylvania law, the legal limit of blood alcohol content (BAC) to be intoxicated is .08 percent.

There are formulas published that may be used as guidelines to determine how many drinks a person of a specific height, weight and gender might be able to drink before becoming intoxicated.

Keep in mind, however, that these are rough estimates and alcohol impacts different people in different ways. The only way to operate a motor vehicle safely in these situations is by not drinking prior to driving!

Driving After Ingesting Drugs

A person may also place him or herself in danger of a DUI/DAI arrest if he or she has ingested drugs, illegal or legal, prior to driving. When drugs are in a driver’s bloodstream a crucial distinction must be understood:

If you have ANY illegal drugs in your bloodstream, 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 yourself impaired to the point where you are not able to operate a motor vehicle safely.

If you are facing a charge, for driving under the influence of alcohol or drugs, it is critical that you seek the advice of an experienced Pennsylvania DUI defense lawyer who knows the law and knows how to protect your rights.

For many people, their first DUI or DAI offense is their first encounter with the law. I understand how intimidating it can be to face unfamiliar legal issues, especially when you are being charged with a crime. If anything I know, based on the 20+ years in the field, that this is scary to say the least.

In this blog series we will walk you though the step by step actions that cause, or are caused by a DUI / DAI charge in Pennsylvania, as well as what you can expect during each one of them.

As we publish this series, you can always refer back to this post, and the links to show the order, and the associated information on each step.

• Drinking or ingesting drugs
• The motor vehicle stop
• The Field Sobriety Test
• The arrest
• The chemical test
• The preliminary arraignment
• The police report
• Initial consultation with your attorney
• The preliminary hearing
• Pre-trial motions
• The trial

The District Attorney’s Office, headed by Harry Connick, Sr., tried and ultimately convicted Thompson of first-degree murder. As Thompson was found guilty of robbery first, he was not allowed to testify in his own defense at his murder trial, since the robbery conviction “tainted his credibility.”

Thompson then sat on death row for 14 years, until 1999, when an investigator discovered the blood evidence that Connick’s office failed to submit to Thompson’s attorney during the robbery trial. The blood in question was type B. Thompson’s blood is type O. In light of the new evidence, a Louisiana court exonerated Thompson of the robbery charge and reversed Thompson’s murder conviction, since the robbery conviction had prevented Thompson from testifying in his own defense at his murder trial.

After his release, Thompson promptly filed a lawsuit against Connick’s office for $14 million, which a jury eventually awarded him. The jury’s decision was upheld in Federal District Court before Connick appealed to the Supreme Court to reverse the jury’s decision. In a 5-4 decision, the highest court in the land sided with Connick, and denied Thompson his $14 million award.

The issue placed before the Supreme Court was not Thompson’s guilt or innocence, but whether or not Connick’s office deliberately ignored the decision in Maryland v. Brady, which holds that prosecutors must turn over favorable evidence to the defense. If the blood evidence in Thompson’s robbery trial had been revealed, he would not have been convicted; if Thompson was innocent of the robbery crime, he would have been permitted to testify at his murder trial.

The Supreme Court ruled that this one incident of failing to turn over evidence does not prove a pattern of deliberate indifference to the Brady decision, and therefore the District Attorney’s Office should not be held culpable in the abuses Thompson suffered. It is worth noting that four of the Supreme Court justices disagreed with the majority ruling. The dissent highlighted that Connick’s office is one of the worst in America in terms of failing to turn over favorable evidence to defense teams.

Although Supreme Court decisions often seem like mere matters for the law books, this decision has significant implications for defendants across the country. Most importantly, the Thomspon decision implies that failure to turn over evidence may remain unpunished by the courts, even though one piece of evidence can mean life and death for a defendant.