I am facing DUI charges, should I elect to take a Preliminary Hearing?

I am facing DUI charges, should I elect to take a Preliminary Hearing?

In Pennsylvania, you have a choice as to whether or not to “take” a Preliminary Hearing.  As a lawyer who has represented thousands of DUI cases, I always recommend taking a Preliminary Hearing, especially in DUI cases.  As I have mentioned before, in the Preliminary Hearing, the Commonwealth of Pennsylvania has the burden to prove that it has enough competent evidence to proceed with their prosecution.  I have represented many, many DUI cases in which the police have had evidence (breath tests, blood tests, sobriety tests) that they believed was rock solid in proving a DUI, only to watch the case get dismissed due to inability to introduce the results, a hyper-technical reason and/or the facts in the case were just not enough.  You can see many of these examples on my Avvo profile page.

The ostrich in the sand technique of ignoring it and hoping it will go away will not work.  Similarly waiving the hearing and gaining no meaningful benefit will also not make it go away.  IN fact, all you do is make it easier for the Government to convict you.  It makes no logical sense to waive the preliminary hearing.

Dauphin County CourthouseAnother reason why the Preliminary Hearing is important in DUI cases is that it gives us a chance to see the caliber and quantity of the evidence that the Commonwealth of Pennsylvania has gathered against you.  DUIs are mostly opinion based, meaning a single officer has to make the determination as to whether the driver was impaired.  Therefore, it is important to get this officer’s testimony on the record so that he or she cannot change it later after the weaknesses in the case are exposed.  Keep in mind, the lawyers at The McShane Firm are highly trained in DUI cases.  We have more training than any police officer out on the road.  We know where the police are making mistakes and cutting corners.  It is our job to expose that when we cross examine them.

Should I testify at a Preliminary Hearing?

You have a right to testify during the Preliminary Hearing.  You also have the full constitutional right not to testify.  Furthermore, no one can stop you from testifying.  I normally advise clients not to testify at the Preliminary Hearing for the simple reason that they have absolutely nothing to gain by testifying at this stage.

After the evidence has been examined, the Defense will give their closing arguments first.  Our goal is to show that there is not enough evidence to move this DUI case to the next level, the Court of Common Pleas.  The Commonwealth of Pennsylvania will argue next to show that they in fact do have enough evidence to continue to prosecute this DUI case.

As we move forward in this series, “What to Expect When You’re Expecting a DUI”, we will examine the next stage of the legal process which is the Formal Arraignment.


-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

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Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.

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