Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Pennsylvania DUI Lawyer,
For a first time general impairment DUI, do you think I need to hire a lawyer? In most of these cases, don’t the prosecutors offer ARD?
-Mark, Harrisburg Pennsylvania
Without knowing the details of your case and your criminal history, no lawyer can really give you any specific advice.
However, I can say that I strongly recommend that you have your case details reviewed by a qualified Pennsylvania DUI lawyer. The DUI attorneys at The McShane Firm all offer a free consultation. We will painstakingly go through the details of your case and give you advice based on our many years of experience and expertise.
There are many factors that need to be considered and even an ARD may result in other damages (loss of commercial license, effects on insurance, etc.) that you may not be aware of.
Please see our series Why Fight a DUI in PA for more details on the consequences of a Pennsylvania DUI.
At the end, if you best and only option is to accept an ARD deal, then we will advise you of that. Give us a call, at least you will have done your due diligence by consulting an attorney first before making a decision whose consequences are unknown to you and may effect you forever. The call is free. 1-866-MCSHANE.
If you would like to ask a question, please submit it via the contact us link.
The Commonwealth of Pennsylvania along with state and local police are all trying to make our roadways safer…or so they claim. Once again the evident hypocrisy is crystal clear when it comes to Pennsylvania DUI. As a Pennsylvania DUI Lawyer, it is my job to show a balanced picture of what is really happening.
Decision on DUI frustrates officials
A local case of a man found asleep in his car might have to be dropped.
Recently, in Hanover Township resident, [name omitted] was considerably drunk and instead of making the dangerously wrong the decision of driving, he laid back in his parked car and intended to sleep it off. He was arrested and charged with DUI. The judge in the case ruled that the evidence the police collected was not admissible.
I think most of us would agree that this driver made the correct decision, unfortunately the prosecutor doesn’t agree with us:
But [the Luzerne County Assistant District Attorney] said the responsibility of police is to ensure the safety of the public. The law puts police in a difficult position because, without evidence the operator drove the car, the officer can’t arrest the person on suspicion of DUI.
“At best the officer can prevent the person from driving, but does he have the time to stand by the car to make sure they do not drive away?” the DA said.
Pennsylvania DUI Lawyer comments on DUI while Sleeping
So the prosecutor is frustrated because he couldn’t get someone convicted of a crime they hadn’t committed? The defendant in this case was not driving or in actual physical control, so how can he be drunk driving?!?!? Isn’t this argument recommending preemptive prosecution? Just because he had the opportunity to doesn’t mean he committed a crime. It reminds me of the shortest cross examination I ever had in a DUI case that ultimately resulted in a Not Guilty. In this type of case, I only asked one question. My one question to the officer in front of the Jury was simply: “Officer, what does the D in DUI stand for?” He replied “Driving”. I asked no other questions as my point was made.
Take this example. You walk in to a convenience store and grab a gallon of milk. When you get to the counter you notice that there is no cashier around. You wait a couple minutes and when no one arrives you leave the milk there and exit the store. The cops arrest you because you were in the store alone and had the opportunity to rob the cash register.
It sounds silly. It’s unconstitutional. It’s against our rights. It would never happen.
Unfortunately, it does with DUI. There are many states that have enacted laws that allow people to be charged with a full DUI even if they are asleep in a parked car.
One again, the DUI Hypocrisy is evident in our law enforcement. As citizens of Pennsylvania, we should not allow our rights to be compromised like this.
With states like Pennsylvania reducing the BAC levels for DUI, it has become harder and harder to identify if a driver is actually impaired. This is an important point because under Pennsylvania law, for a Common Law DUI charge (see our post on the different types of Pennsylvania DUI charges) the prosecutor must prove that the driver was SUBSTANTIALLY IMPAIRED DUE TO ALCOHOL OR DRUGS OR A COMBINATION OF BOTH AND THIS SUBSTANTIAL IMPAIRMENT WAS TO THE ESSENTIAL ACTS OF DRIVING A VEHICLE.
It takes a true expert to be able to understand the science involved in such cases. At The McShane Firm, we have a team of highly trained DUI experts who understand issues related to sobriety from a forensic standpoint. Recently, Pennsylvania DUI Attorney Shawn Dorward completed his certification in Forensic Sobriety Assessment (FSA). FSA is a very important certification because it shows the DUI lawyers like Attorney Dorward have passed a rigorous scientific course and possess a firm understanding of the scientific issues related to sobriety.
From, the the FSA website
FSA Certification is the most advanced credential available to DUI professionals in behavioral sobriety assessment. Ideally, all attorneys, judges, and police officers who deal with DWI cases would be knowledgeable about these topics. While the National Highway Traffic Safety Administration (NHTSA) trains police officers to assess intoxication, it does not provide training in important scientific topics or differential diagnosis, and does not address the many criticisms of the tests. FSA Certification is available to those who demonstrate proficiency by passing examinations in seven of the eight content areas (the module on statistical significance and effect size is currently optional).
Once again, the DUI lawyers at The McShane Firm are at the forefront in obtaining the highest possible certifications and the knowledge needed to defend DUI cases in PA. No one in Pennsylvania is more qualified than us to handle your DUI case.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Attorney McShane,
I came across your blog today and found it to have a ton of information about Pennsylvania DUI. It looks like no other attorney in PA has mastered DUI like you.
A couple weeks ago I was charged with a "High Rate DUI" even though my BAC was recorded as a .085. The reason stated was because I was involved in a crash. But the accident wasn’t my fault because I was rear-ended while stopped at a red light. How can they charge me at a higher level when it wasn’t my fault?
Under Pennsylvania DUI a law, a "DUI accident" can face enhancement. This means that you can be charged at a higher tier meaning much stricter penalties including mandatory jail time. Unfortunately, the way the law is structured, the accident does not even have to be your fault. The fact that you were involved in a vehicular accident allows them to charge you at a higher tier.
In your case I recommend that you seek out a qualified DUI expert to review the details your case. If you are in the Harrisburg area then one of the qualified DUI attorney at The McShane Firm can review the facts and chart out a course of action to make sure you are treated fairly.
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
In Pennsylvania, Implied Consent means that you agree to submit to a chemical test if you are ever asked to do so by a police officer. When you go to renew your driving license, it is one of the forms you will have to sign.
It is known by a couple of different names: the DL-26 form, the O’Connell Warnings and the Implied Consent warnings.
The police are required to read this to you when they ask you to submit to a breath or blood test. Why? Because a refusal to submit to a DUI test carries with it, upon satisfactory proof, at least a 12 month license suspension, just for the act of refusing. Under certain circumstances, the loss of license can be as much as 18 months. This is "free and clear" of the outcome of the criminal case. In other words, you can get a not guilty from the criminal prosecution, but the license loss due to a refusal will be left unaffected. If that same person who was adjudged to be a refusal is found guilty of a DUI on the criminal side, they face another subsequent 12-18 month suspension plus mandatory jail time. Even if you would have been charged at a lower tier because your BAC was not in excess of 0.16, a refusal is charged at the highest tier possible.
However, despite these severe consequences, Pennsylvania doesn’t care if you understand the waiver that the officer is reading:
Court ruling causes DUI dilemma
Should police be required to explain alcohol test in language of suspect?
A New Jersey Supreme Court decision overturning a drunken driving case because the driver did not speak English could affect Pennsylvania motorists and police.
This article shows some of the evident hypocrisy in Pennsylvania DUI law. On one hand, the officer is required to read the waiver to you to make sure you understand the consequences. On the other hand, they don’t have to make it available in Spanish even in areas where there is a majority Latino population?! So what do the Pennsylvania Courts have to say about this?
An appellate case was argued over this very apparent discrepancy. The law in Pennsylvania is hypocritical. The law requires proof that the person who refused made a knowing, intelligent and voluntary decision to refuse; yet, the law has no requirement that the listener be provided the chemical warnings in his/her own native language. In other words, Pennsylvania Courts have de facto held that the English language is the lawful official language in Pennsylvania. Those who do not speak it are held liable for not knowing the de facto official language, the English language. The court ruled that, under implied consent, anything short of submitting to testing is deemed a refusal. The Pennsylvania Supreme Court even refused to hear the appeal.
This holding flies in the face of Pennsylvania history. In 1837, the Pennsylvania legislature passed a law which required schools to provide instruction in different languages, establishing the first ever bilingual education law.
This lunacy is exclusively reserved for DUI and driver’s licensing cases. For example, if English only speaking police officers came to a house that had Spanish only speaking residents and asked in English if the residents would consent to a warrantless search of the house their search, any such consent would be totally invalid. If the police and prosecutors tried to argue that the consent was valid, they would be laughed out of court.
Remarkably, it seems as if appellate courts forget that a chemical test of one’s breath or blood is a search. But, it’s not just any search. It’s a search of one’s body. It’s an invasion of one’s bodily integrity by the government.
Isn’t it amazing how a house or a car gets more protection than our bodies?
Is it really that difficult to keep a copy of the waiver in Spanish? For a long time, AT&T has kept a special line that was available 24/7 free for police agencies to facilitate translating a wide range of languages. There may be a number of people who do not understand English well enough to comprehend the severe consequences they may face. But one DA and the state don’t really care:
But, [the DA] warned, voluntarily agreeing to provide Spanish-speaking interpreters for DUI arrests could become a slippery slope.
"What’s next, bilingual signage on our highways?" he asked.
I find that to be an utterly ridiculous and callous statement. It is at the very least ethnocentric. At the most it’s racist. The whole reason that road and safety signs have shifted to symbols instead of text is so that people of all languages and educational levels can understand them. In fact, it makes our roads safer.
Furthermore, the language used in the Implied-consent Warnings is remarkably complex even for native English speaking non-lawyers to understand. This is the exact language that is supposed to be read is:
1. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of (blood, breath or urine. Officer chooses the chemical test). [N.B., urine is inadmissible in Pennsylvania]
3. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.
4. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal
sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code.
3802 and 3804(c)??!!??? Say what?
So remember friends if even you don’t understand what the officer is saying, it doesn’t matter. It counts as a refusal. So sad. At the McShane Firm, LLC we are litigating this issue anew to try to get common sense, fair and non-ethnocentric rulings that reflects our society and not xenophobia.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
The McShane Firm is committed to excellence in DUI Defense and there is no law firm in Pennsylvania that has a team of attorneys better qualified to handle your DUI case. Excellence comes through hard work, sincerity, and taking pride in one’s work and Attorney David Hoover embodies these values.
Recently, Attorney Hoover earned certification in Forensic Sobriety Assessment (FSA). FSA has a rigorous criteria in which DUI lawyers must pass a series of modules that cover highly scientific areas such as:
- The lack of meaningful scientific literature on indications of intoxication such as red eyes and slurred speech
- NHTSA’s Standardized Field Sobriety Tests (SFSTs)
- Testing concepts: Reliability and validity
- Diagnostic statistics: False positive rates, sensitivity, specificity, etc.
- Experimental design issues relevant to sobriety test studies
- Statistical concepts such as correlation, statistical significance, and effect size
- Visual science pertaining to the Horizontal Gaze Nystagmus (HGN) sobriety test
- The scientific literature on sobriety tests other than the SFSTs
This certification certifies that Attorney Hoover has demonstrated a high level of expertise in the science and forensic use of roadside sobriety testing and evaluation of intoxication far beyond the scope of NHTSA. Very few Pennsylvania DUI lawyers have the requisite knowledge to needed defend DUI cases based on forensic sobriety and we are proud to have a foremost expert like Attorney Hoover on our team at The McShane Firm.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Pennsylvania DUI Lawyer,
I am licensed out of state and was recently charged with a Pennsylvania DUI refusal. How will this effect my driving privileges in my home state?
Pennsylvania cannot suspend an out-of-state license even if you are convicted of a DUI. Only your home state can suspend your license. Pennsylvania can only suspend your privilege to drive in this state. A refusal to submit to an officer’s request for a breath or blood test, MAY result in a suspension of driving privileges in Pennsylvania (if you are unsuccessful at the administrative hearing) but MAY or MAY NOT cause you to be suspended in your home state. The rules for processing a notification of a refusal report vary in each state. Pennsylvania is obligated to send such notice to your licensing state. Some states take no adverse action against the license in the non-resident driver’s home state for a “refusal” to be tested in Pennsylvania. If you are a CDL holder, it is very likely that you will face a one (1) year disqualification.
Since The McShane Firm is the pinnacle in terms of DUI defense in Pennsylvania, we associate ourselves with other highly skilled and highly reputable attorneys in other states. We will be able to provide to you a direct answer as to how your home state will treat every possible scenario as the case develops and if necessary get you a consultation with the very best attorney in another state to help you with that state’s actions.
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
One popular "solution" to the DUI problem is to toughen the laws and make harsher penalties. Here in Pennsylvania, that still wouldn’t work because of shoddy police work. All it will do is lead to more truly factually or legally not guilty citizens among us being convicted and punished. Here is an investigation from last year that shows how inept some of these departments are:
Philly Fugitives Walk Free as Courts Watch
Court insiders call it a "Philadelphia special": a case that falls apart after both witnesses and cops fail to show up at trial. The nickname is telling, according to a four-part investigation by the Philadelphia Inquirer that began on Sunday. Looking at 31,000 criminal court cases filed in Philadelphia in 2006, 2007 and 2008, the paper found pervasive dysfunction within the city’s court system [2], which "fails to punish violent crimes, dismisses thousands of cases without any decision on the merits, and has a growing pool of 47,000 fugitives."
Because of shoddy work by police and prosecutors, some true criminals go unpunished. The full series: Justice: Delayed, Dismissed, Denied is worth reading as it highlights how widespread this problem really is.
My question is- What’s the use of pushing for stricter laws when the Commonwealth of PA can’t enforce the current ones? Why not invest funds into making crime labs better and training police better so we can catch the bad guys and make sure they get punished appropriately?
Stricter DUI laws and penalties are a shell game hiding the deficiencies of the police and prosecution. That’s the root problem that no one wants to talk about.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
At The McShane Firm we take our responsibility very seriously. Pennsylvania citizens trust us to defend their liberty, freedom and future against very serious DUI charges. It becomes our responsibility to defend them with integrity and prepare ourselves to offer them the best possible defense.
To this ends. Our lawyers combined spend over a thousand hours and tens of thousands of dollars each year in advanced legal training. This additional training has helped The McShane Firm become the premier DUI law firm in Pennsylvania.
All of our highly trained DUI lawyers are certified in:
- DWI Detection and the Administration of the Standardized Field Sobriety Tests as recognized by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (Practitioner and Instructor levels)
- Advanced Roadside Impaired Driving Enforcement as per NHTSA
- Drugs that Impairs Driving as per NHTSA
- Drug Recognition Expert as per NHTSA
- Evidentiary Breath Alcohol Technician (BAT) per the United States Department of Transportation
- Forensic Blood and Urine testing
- The Summer Session of the National College for DUI Defense, Inc. held at the Harvard School of Law
In addition we are all certified instructors of and own all the breath machines used by police in Pennsylvania.
We are all members of the prestigious National College for DUI Defense and are recognized experts in:
- Gas Chromatography
- DUI Forensics
- Blood and Urine Testing
- Standardized Field Sobriety Tests (Roadside DUI Tests)
We go that extra mile to ensure we provide the best DUI defense in Pennsylvania.
Unfortunately, others don’t invest this much in excellence. All we ask is that you do your due diligence and take advantage of our free initial consultation. Compare us to the others and you will see the difference.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Pennsylvania DUI Lawyer,
My 20 year old son was charged with a DUI while he tested at .04. I thought .08 was the BAC limit for a DUI in Pennsylvania, am I wrong?
Pennsylvania has what it labels as a “zero tolerance” law for DUI for drivers under 21. That means anything above a .02 blood alcohol content will result in an accusation of being an underage driver being charged with a High Rate DUI (see our post The Legal Consequences for a Pennsylvania DUI for a more detailed description on Pennsylvania DUI Penalties for different categories .)
You should seek out a qualified DUI attorney because in my experience, often times these cases are very defendable. The breath testing devices are inaccurate and can give totally erroneous readings. Blood tests are also frequently not the true reading of BAC.
It might help you to read two of my recent posts:
-
Underage DUI in Pennsylvania and Underage Drinking in Pennsylvania
-
Underage Drinking and DUI in Pennsylvania: LOD and LOQ Defense
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
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