In my years of defending DUI cases in Pennsylvania, one of the most common misconceptions I come across is people questioning why I support DUI. The fact of the matter is, I don’t support drunk driving. It is dangerous and many lives are needlessly lost because of DUI each year. Asking a DUI defense attorney “why they support DUI” is akin to asking The Innocence Project “why they support murders.” Criminal defense attorneys do not support or encourage crime, they support and encourage justice.
PA DUI Attorney fights against injustice.
As a DUI defense attorney, I call for reform in the justice system because too many people are being falsely arrested and falsely convicted of DUI. They are too many problems that are going unchecked that undermine the justice system and put all of us at risk of a false conviction. Some of these problems include:
- Police officers who have very little training in DUI detection
- Faulty and inaccurate breath testing equipment
- Lack of oversight to ensure DUI testing equipment is working properly
- Field sobriety tests that are not scientifically validated
- Field sobriety tests do not tell whether the suspect is intoxicated- there are many people who may stumble when asked to stand on one leg for 30 seconds for reasons other than being drunk
- Blood testing is inaccurate
- Crime lab technicians are overworked, under-trained and many lack education in science to begin with
- Rampant lack of oversight in crime labs
- Corrupt police officers try to inflate DUI arrests for their own personal gain
- Prosecutors have been known to conceal evidence
On top of all of these uncertainties, the penalties for DUI are extremely harsh and will affect those convicted for the rest of their lives even if it is the only blemish on their criminal record. They may end losing job opportunities and will be humiliated when anyone searches their criminal record for the rest of their lives.
As a professional Pennsylvania DUI attorney I fight for justice so that innocent people are not convicted of a DUI under such unreliable circumstances.
At PA DUI Blog we have detailed the numerous criminal and financial penalties of a DUI conviction in Pennsylvania and the honest truth is, a DUI conviction is horribly costly and will cost you for the rest of your life. When you factor in the fines, increased insurance premiums, time lost at work and possible loss of career opportunities, you can see how a DUI can cost you tens of thousands of dollars- much more than the cost of hiring a good attorney to fight your case. A recent article highlights some of the costs related to Pennsylvania DUI convictions:
Pennsylvania DUI Conviction: You Can't Afford It
DUIs rising, and so are costs
SUNBURY — Arrest for driving under the influence have risen in Valley counties in the past 10 years, and so have resulting penalties.
Drunken driving, says George Geisler, of the Pennsylvania DUI Association, “is the number one crime not only in Pennsylvania, but in the Unites States.”
Montour County showed a 1,216 percent increase in drunken driving arrests between 2001 and 2010, according to the Pennsylvania Uniform Crime Reporting System. In Northumberland County, it was 48 percent; in Snyder County, 24 percent; and in Union County, 121 percent.
All Pennsylvania common pleas courts need to follow a first-time offenders guideline, said Northumberland County President Judge Robert Sacavage.
“There is no leniency,” he said.
First-time offenders whose blood-alcohol content registers at least 0.16 — double the legal limit — can receive a maximum fine of $5,000 and six months in jail.
“The second or third time around, we have more room to work with,” he said.
Third-time offenders within 10 years can be fined up to $10,000.
If not injuring oneself or another isn’t a big enough deterrent, Geisler said, the financial penalty should be.
“Who wants to pay $8,000 to $10,000?” he asked. “Total cost of fines, insurance increase, ignition interlocks and attorneys adds up. That is the least of it because what if you hurt yourself or someone else?”
If you are charged with a DUI in Pennsylvania make the right investment. Make an investment that will protect your rights and your future by hiring a DUI lawyer committed to rigorously defending your case. Call 1-866-MCSHANE for a free consultation.
Happy 4th of July!
- A report card from our Founding Fathers
I had a thought last night and I gather a lot of my DUI defense lawyer brethren and sistren might think the same.
What would the Founding Fathers think of us now?
If they could see us and look at our judicial institutions and politicians and our overall government, what sort of report card would they give us?
Have you ever read the preamble to the Bill of Rights?
The First 10 Amendments to the
Constitution as Ratified by the StatesDecember 15, 1791
Preamble
Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.
- The Founding Fathers would give us all an F
We live in a time where:
- Judges in some states are elected and some cow-tow to heavily to special interests like MADD regardless of the law.
- Politicians take the easy road out and increasingly ratchet up penalties against those accused of DUI while at the same time de-funding social services that are designed to treat the underlying problem of alcoholism and drug addiction.
- License suspension hearings, in some states, are totally devoid of any sort of meaningful Due Process.
- In some states, license suspension hearings are conducted by those who are employed by the Department of Motor Vehicles with memos that go around that set the goal of the office to uphold as many suspensions as possible regardless of the facts and the law.
- Crime labs that often provide the most damning evidence against the accused motorist are unregulated and are error prone with a new scandal every week.
- Roadblocks are allowed in some states.
- IN some states, police officers with judicially sanctioned warrants can literally strap down motorists against their will and take their blood for subsequent chemical analysis.
- The Supreme Court of the Untied States is slowly but surely making the 4th Amendment powerful and necessary prophylactic rule as established by Mapp v. Ohio (50 years ago) a historical footnote, and
- The doctrine of qualified immunity is increasing expanded and called upon to insulate the government’s wrong doings upon its populace.
It is a sad commentary that today is the 4th of July and our own Founding Fathers would likely turn their back on us now and tell us not to celebrate their day. You see, they had the courage and the guts to stand up and say no against the tyrant who invaded every aspect of their life.
It reminds me of the words of William Kunstler who said:
And that’s the terrible myth of organized society, that everything that’s done through the established system is legal and that word has a powerful psychological impact. It makes people believe that there is an order to life, and an order to a system, and that a person that goes through this order and is convicted, has gotten all that is due him. And therefore society can turn its conscience off, and look to other things and other times. And that’s the terrible thing about these past trials, is that they have this aura of legitimacy, this aura of legality. I suspect that better men than the world has known and more of them, have gone to their deaths through a legal system than through all the illegalities in the history of man. Six million people in Europe during the Third Reich? Legal. Sacco Vanzetti? Quite legal. The Haymarket defendants? Legal. The hundreds of rape trials throughout the South where black men were condemned to death? All legal. Jesus? Legal. Socrates? Legal. And that is the kaleidoscopic nature of what we live through here and in other places. Because all tyrants learn that it is far better to do this thing through some semblance of legality than to do it without that pretense.
– William Kunstler (1995)
Can You be Charged with a DUI for Drinking Non-Alcoholic Drinks like Kombucha Tea?
Non-alcoholic drinks can cause false DUI arrests.
Non-alcoholic drinks are classified as those drinks that have an alcohol content of .5%. There have been some reports that show that the alcohol level in Kombucha tea can be sometimes higher. Drinks like Kombucha tea and non-alcoholic malts can potentially cause someone to be charged with a DUI for a number of reasons:
- Many drivers like CDL drivers, bus drivers and people under the age of 21 are at risk of being falsely charged because PA DUI Laws set the BAC limit for these drivers at .02. In some cases, non-alcoholic drinks can cause a reading above this threshold without the driver even knowing it or even feeling it.
- There is a common myth called “the smell of alcohol.” Police officer often state that they “smelled alcohol” on the breath of an individual and cite that as evidence for a DUI. In reality, this smell of alcohol is not unique to alcohol and certainly even if present doesn’t mean someone is drunk. The reported smell is the odor of other substances in alcoholic beverages. Many of these substances are also present in non-alcoholic malts and brews meaning that a non-alcoholic beer will smell the same as an alcoholic one. This fact is lost on many police officers and they commonly use this as basis to make a DUI arrest.
As I have mentioned on this blog before, there are many factors that cause false DUI charges and even non-alcoholic drinks can sometimes create a situation where, when coupled with other factors such as the lack of police training, the inaccuracy of breath testing equipment, and contextual bias can lead to a false DUI arrest.
If you have been wrongly arrested for a DUI in PA. Please call the experienced Pennsylvania DUI lawyers at The McShane Firm at 1-866-MCSHANE.
[Blogger's note and update 3/23/2011: We have been up-to-date on this developing story. The issue as far as we see it is going to effect literally thousands of convictions. The "issue" goes back to the switch over to the Intoxilyzer 8000 which occurred in September 2009.]
When I tell people that I am a PA DUI Lawyer, I am often times met with disdain because people think that everyone charged with a DUI is really guilty. This is really not the case as I have pointed out many times on this blog. There are many innocent people who are charged with PA DUI violations due many factors. One of these factors is bad breath testing equipment.
Pennsylvania Police are Wrongly Charging People with PA DUI violations
Philly Flunks Own Breathalyzer Test
Dozens of DUI cases in Philadelphia are set to be re-tried because of a bad breathalyzer, officials said on Wednesday.
Apparently, one breathalyzer used by police was showing incorrect blood-alcohol levels, MyFoxPhilly reports.
The district attorney’s office says in cases where people were found guilty solely because of the test, they will get a new trial.
In cases where other evidence was obtained, such as witness testimony or blood test, those defendants would not be reevaluated.
The problem could affect about 200 convictions.
Keeping a breath machine properly calibrated is really not that difficult. There are routine checks that need to be made and if there are problems, the manufacturers offer support. That is why this gross negligence is so appalling. This recklessness shows that these officers do not care about performing good police work. We are trusting cops who can’t keep their breath machines in order to keep our families and communities safe.
As an experienced Pennsylvania DUI attorney, I have witnessed the attitude of our police force on many occasions. I have also blogged extensively on the problems with police in PA in a DUI context. The core issue is that there are a lot of police officers who are under-trained, a few are lazy, and others are careless. They are wrongly charging innocent people with DUI. It is then up to us PA DUI attorneys to protect the rights of the citizen accused.
If you are wrongly charged with a DUI in PA please call 1-866-MCSHANE for a free detailed consultation.
If you are a motorist in PA, this may be the most important blog post you’ll ever read. With the holidays approaching, Pennsylvania State and local police are busy planning out more DUI roadblocks and DUI focused patrols. You will likely be stopped as well.
OK. Here’s the truth that no one will tell you but me. If you are stopped by the police at night and if they even think that you are drunk or think that they smell alcohol, you are going to be arrested no matter what you say or what you do or what the evidence is. Most police officers adopt a “better safe than sorry” approach because if they are wrong and they turn out to not arrest someone who later turns out to be drunk and that person hurts property or people or kills someone, then they will be fired and the municipality or state will be sued. So, the bad news is, if you hear the words “Have you been drinking?” or “How much have you had to drink?” or “Please step out in the car,” you are going to be arrested. There is nothing you can do about it other than try to protect yourself from a false conviction after this false accusation.
That is why I have put together a short and handy guide of what you should do if you are pulled over by the police for DUI in PA.
Shut Up!
No one can talk their way out of a DUI so don’t try it. You can only hurt yourself by talking. Don’t admit to drinking any amount of alcohol or say anything and most especially don’t lie (don’t say “I had a few” or “I had 2″). Just politely say, “Officer, I choose to remain silent”. Provide the necessary documents and remain silent. Talking will only give the officer more evidence against you. Staying silent is the best thing you can do for yourself and it is your right.
Refuse the Roadside DUI tests
There are two types of tests the officer may ask you to perform at roadside. First are the awkward high-pressure and purposeless game of Simon Says such as the alphabet test or the finger count test and then there is the Standardized Field Sobriety Tests (SFSTs). With the SFSTs you will be told to follow the officer’s finger (Horizontal Gauze Nystagmus test-which is inadmissible in Pennsylvania, yet police all across the state continue to conduct it for some unknown reason), walk a straight line (Walk and Turn test) and stand on one leg counting out loud (One Leg Stand). These tests are not scientifically valid and are designed for failure. Furthermore, police officers incorrectly administer these DUI tests leading to many false arrests. Once again this can only be used as evidence against you and will not help you. These test are totally optional and your best bet is to politely refuse. You will not be penalized for not doing them. In fact, by not playing the high-pressure meaningless game of Simon says at roadside, you will provide the officer with less data to justify his reason to arrest you. Less data and information means that their justification in arresting you is weaker and in fact they may have no justified reason at all. It may result in there being insufficient evidence to justify your arrest and therefore suppressing all of the after-acquired evidence causing your case to be dismissed.
The other test the police may ask you to perform is the portable breath test (PBT). You may think to yourself that these tests are accurate and valid. You may even think that because in truth you only had one drink that you could not possibly be over the limit. You would be wrong. These hand-held PBT’s are not precise and create false positives.
Once again this is voluntary. You are not required to do a PBT test. If you do not perform a PBT upon request at roadside you cannot be charged with a refusal for it and the jury will not hear about your refusal either. In fact, you should not do it. As these things are not specific to alcohol and are not accurate, you are voluntarily providing the police with more evidence against you. To do so, does not make sense even if you are 100% innocent. These tests are optional and you should politely refuse.
Request an Independent Blood Test
If the police take you to the station for a full evidentiary breath test or the booking center or hospital for a blood test, you have the right to to request an independent blood test. They won’t tell you that you have a right to an independent test, but you do. You simply tell them that you want them to follow the law. In Section 1547 of the Vehicle Code, we find the following language:
(h) Test by personal physician.–The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test.
Therefore any unreasonable delay in your release could frustrate your ability to get this second test and cause the original police-generated test to be suppressed. Oh yeah don’t worry if you are over the limit as the police will likely delay and not give you the opportunity to perform a second test any way.
Also, remember that the DUI crime labs that the police use are often overworked and underpaid and at times do not follow proper standards. Very few attorneys check their work. We always do. We frequently find errors that lead to a challenge of the validity of the result. The risk of a false positive from a lab error is high. (Read more about problems at forensic crime labs.)
Write things down
Another important piece of advice is to write things down. Try to establish a drinking history by going back and getting witnesses names and addresses so we can later go back and investigate it to make a true pharmacological history. People forget things and writing things down will help preserve the details. Remember, details provide for truth. The truth win cases.
The important things to take note of is who can confirm how little you had to drink and over what period of time as well as your stomach contents (what you had to eat). With this and other information we can construct what your BAC should have been at the time of driving or the time of the test to refute the state’s evidence. In addition, we want to talk with everyone who saw you so we can present witnesses that refutes the officer’s claim that you appeared drunk and instead that you were in charge of your faculties, that you made sense and that you weren’t stumbling when they saw you. Finally, we want to interview any passengers in your car or those who did not stop you from driving, so that we can gain their estimation from those who know you better than the officer who is a stranger to you as to whether or not you were capable of safe driving and how they thought that you were fine to drive and that they care about you and others and would not let you drive if they thought you were even possibly drunk.
Call a Qualified PA DUI Attorney Immediately
The best way to help yourself is to call a Qualified PA DUI Attorney Immediately. We have a 24 hour DUI helpline at 1-866-MCSHANE. As mentioned before, details win cases. The earlier you get us involved, the better we can prepare your case.
There are also time sensitive steps that need to be completed early on. For example, if your license is suspended due to a DUI refusal, you must appeal within 30 days or else your license suspension will stand. You will also want to consult a qualified attorney for your preliminary hearing. The preliminary hearing is an important legal step for your DUI defense and you should have an attorney present to represent your case.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about Pennsylvania DUI laws and related topics. Today:
Dear Pennsylvania DUI Lawyer,
What is an Ignition Interlock Device is and do I have to have one installed if I am convicted of a DUI in Pennsylvania?
Ignition interlock devices do not allow drivers to start their cars unless they first blow into a tube and test their alcohol level. There are different forms and methods of the instrumentation in terms of their setup to confirm that the driver has not had anything to drink. However, in general, they follow this type of method: If alcohol is detected, the vehicle will not start for 5 minutes. A second failed attempt will cause a 30 minute lock out and a third will mean that the device will have to be taken to a service center to reset it. The initial installation of the device costs about $1,000 and it costs $75 to have it reset. After starting the vehicle, the device requires the driver to test are random times as well while the vehicle is in motion.
These devices are not specific or selective for ethanol. In fact, they can and do record false positives based upon even just simply eating bread. If you are charged with an interlock violation, we can help.
Drivers who are required to have a DUI interlock device are issued restricted Pennsylvania driver’s licenses with red borders so police officers can easily identify who is required to have one installed. If a driver who is under an interlock restriction is found driving a vehicle without the device installed, and he/she is convicted, then further loss of license and possible incarceration may come about.
Pennsylvania adopted the Ignition-Interlock Law in 2000. Over 5,000 interlock devices have been installed in Pennsylvania. Anyone convicted of a DUI who has a prior offense within the last 10 years is required to use an ignition-interlock device for one year after their license suspension is served.
If you would like to ask a question, please submit it via the contact us link.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about Pennsylvania DUI laws and related topics. Today:
Dear Pennsylvania DUI Lawyer,
Please explain Pennsylvania’s Administrative License Suspension Law.
Refusing a DUI chemical test in Pennsylvania can lead to License Suspension
The Pennsylvania Administrative License Suspension Law pertains to those who are not only convicted of a DUI or a license triggering offense, but also charged with refusing to submit to a chemical test (breath or blood) for DUI. It is the context of the refusal that this post will focus upon while later posts will focus on the others. Under the circumstances of a refusal, PENNDOT will proceed to attempt to suspend your driving license for at least one year and perhaps up to 18 months depending upon your prior record. This suspension is separate and apart from your criminal DUI case. You have 30 days from the mail date on the suspension notice to appeal this suspension. If you do not appeal within this time period or if your appeal is denied, your license will be suspended regardless of the outcome of the separate criminal DUI case. Under Pennsylvania DUI Law, an acquittal in your criminal DUI case cannot be used to re-open the administrative license suspension case. You must act quickly!
If you opt for an appeal of the administrative license suspension, your case will be heard at the PENNDOT Statutory License Appeals Hearings heard before a Judge of proper jurisdiction in the Court of Common Pleas. To preserve your right to drive, you must be successful at both the PENNDOT Statutory License Appeals Hearings and in the criminal DUI case. This is why I recommend everyone charged with a Pennsylvania DUI Refusal to consult with a qualified DUI Lawyer who can review the issues in your case and chart out a proper defense. The penalties for a Pennsylvania DUI Refusal are very serious so please seek out the best legal advice you can find. If you are in Harrisburg, York or anywhere in central Pennsylvania, please call 1-866-MCSHANE
If you would like to ask a question, please submit it via the contact us link.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about Pennsylvania DUI laws and related topics. Today:
Dear Pennsylvania DUI Lawyer,
The cops charged me for DUI and took my license. When can I get it back?
Under Pennsylvania law, an officer is permitted to confiscate the license of only those motorists whose license is suspended and previously ordered surrendered. There are no “on-the-spot” suspensions. In Pennsylvania, all suspensions are conviction based, except refusals to take a chemical test for blood alcohol content. So, if you have not been convicted, then they cannot take your license unless it has been previously ordered surrendered.
If the police have indeed taken you license outside of the laws explained above, you should call a qualified DUI Lawyer who can examine the situation and highlight any wrong doing that may have taken place.
If you would like to ask a question, please submit it via the contact us link.
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:
Why would I want to hire an attorney for a preliminary hearing if all I want to do is go to trial? Why not “waive” it into Court and save the money?
I have written about preliminary hearings in the past. Please see What to Expect if You’re Expecting… a DUI: Preliminary Hearings and I am facing DUI charges, should I elect to take a Preliminary Hearing?. In summary, I always advise clients to take the preliminary hearing and urge them to hire the best DUI attorney they can find to represent them at it.
During the preliminary hearing, the Commonwealth of Pennsylvania has to meet the burden of prima facie before a Magisterial District Judge. Basically they have to show that a crime has been committed and that more likely than not the suspect has committed this crime. The Commonwealth of Pennsylvania will also have to present it evidence against you and this gives your lawyer a chance to examine the quality of the evidence against you. Any witnesses the prosecution calls can be cross-examined and "locked" into a testimony and therefore can’t change it later on.
A seasoned defense attorney will do their best to challenge the evidence being brought forth. Many times key evidence is later suppressed because of these challenges. If this happens, the charges may be reduced or dismissed altogether. I have benefited by using this professionally aggressive posture at the preliminary hearing by having the Judge rule that there was not enough evidence to prosecute and thus dismissing the case altogether.
In the end, waiving your right to a preliminary hearing and getting nothing in return is really giving the prosecution a free pass and you may lose out on many of the advantages mentioned above.
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
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