I recently had the opportunity to defend a Pennsylvania DUI case that ended in a conviction for my client at trial. However, I appealed the judgment to The Superior Court of Pennsylvania and they overturned the verdict. However, in doing so, the Superior Court for the first time in Pennsylvania applied in its published opinion the United States Supreme Court’s ruling in Melendez-Diaz. It completely changed the landscape of cases involving analysis not simply in DUI cases, but in all cases.
Case Details
My client was arrested for DUI after a police officer determined she was incapable of safe driving. She was taken to an area hospital where she was given a DUI blood test. The tests showed she had a blood alcohol content of .209% putting her in the highest rate DUI tier meaning she would have to serve mandatory jail time and a one year license suspension. (See the legal penalties for a Pennsylvania DUI).
At trial, The Commonwealth of Pennsylvania presented the blood tests results to be admitted as evidence without calling the lab technician that preformed the test to testify. This is a problem. The Sixth Amendment of the Constitution guarantees each individual the right to confront any witness brought against him or her. Recently, The Supreme Court of The United States ruled in a decision entitled Melendez-Diaz v. Massachusetts that a live witness must be called to testify for the results of a forensic test or analysis so that the defense can cross-examine the person testifying against them. I made this argument before The Court of Common Pleas but that judge overruled my objection. The result of the trial was a guilty verdict.
I then proceeded to appeal the verdict in this case to The Superior Court of Pennsylvania. The 3-member panel of the Court unanimously ruled that the lab report could not be introduced as evidence on its own and needed to be introduced by a live person (i.e. the lab technician). As this piece of evidence should have been inadmissible in this scenario, the resulting BAC was thus not proven. In a per se DUI charge the entire emphasis is on the BAC, and thus the conviction had to be overruled.
The moral of this story is you need a qualified DUI attorney to handle your DUI case. Knowing the laws, procedures and science related to Pennsylvania DUI cases is absolutely essential in successfully defending them. If you are accused of a Pennsylvania DUI please call The McShane Firm at 1-866-MCSHANE to review your case with a highly qualified DUI attorney.
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.
J. Fiedler says:
I’m not very good at summarizing but I’ll try.
1. I have PTSD, anxiety disorder and ADHD. I also have 2 herniated disc in one degenerate this in my back along with multiple shoulder surgeries.
The reason I have PTSD anxiety disorder is because I was accused falsely when I was in high school kicked out of high school and treated poorly by law-enforcement found guilty of something I did not do and I have the proof of that 20 years later. That’s just the beginning of the reason I do not trust and have an uncontrollable anxiety reaction when I am near police.
Regardless I got stopped on the way home after tubing “floating“ down the Delaware river all day in July 20 20 taking my family my fiancé and her son home I was followed my third brake light was out I had no idea long story short field sobriety test was given to me. I thought it was ridiculous and I felt as though they were forcing me and manipulating me and making me feel more and more anxiety and they were out to get me. I asked for a breathalyzer they denied it. They didn’t ask me if I had any injuries until the very end and when I explain to them about my back injuries this is when they grabbed me and put me under arrest. I didn’t understand why they were doing it I was beyond confounded. A couple things in my field sobriety test that I did not do correctly and most of the reason I did not do them correctly is because anxiety and I was not concerned about being arrested because I was sober and did not partake in drugs or alcohol. He did the pen test on me and because of my history of being attacked physically when someone puts a Penn close to my face or anything else I move my head back so I don’t get hit in the forehead it’s a natural reaction and it’s how I am. So my eyes failed to go cross eyed he also said that I failed to follow the pen which I do not believe is true whatsoever because I remember following the pen perfectly until it became quite ridiculous and I believe I stopped once and said this is getting a little much then I continued after the standard threat. Then I held my arms to the side feet together arms to the side eyes closed look at the sky best guess of 30 seconds I literally counted to 20 seconds in my head and stopped and said “alright”
He asked me if I thought that was 30 seconds I told him maybe 25 -27 seconds, again doubting myself under extreme duress. Then we moved onto the heel to toe walk, he had been in the starting position for a very long time and after swimming down a river all day exhausted and wet I left the story position to stand up straight because my back was hurting and I was tired the way it felt was he was yelling at me treating me like a child or criminal in my mind began to go blank because of the stress. At this point I told him I don’t feel like there’s anything I can do good enough for you I did the hill detail walk he said I turned in properly when I walked back after the six step I purposely stop the hill to toe and just said 7-8-9 The reason being is I was feeling so scrutinized and belittled that I just didn’t want to do these tricks for him anymore and again I was sober, tired but sober without any alcohol or illegal substances in my body. I asked him for a breathalyzer he refused then he asked me to stand on one leg this was the last test in at that point is when he asked me if I had any injuries that would prevent me from performing these test will cause me pain. I said yes well I have two herniated disc in my back and one degenerate disc it hurts but I can still do it, he said no we don’t want you to get hurt and then arrested me! I cried out what are you resting before!? I asked him I said it doesn’t make any sense what are you doing this for why are you doing this to me I was on my parents road he told me to get the F in the car and shut the F up ! They then approached my truck that had my fiancé who was very tired and never driven the truck before and maybe had a drink or two asked her if she was OK to drive she said yes ballon won’t pass those test and they let her drive away with her son in the car in a truck that she’s never driven before and they took me in the squad car for a 10 minute drive. Doing those 10 minutes they read me the DL 26 form, I asked them to read it again for me and they did I said it doesn’t sound like I have much of a choice and they replied “we can’t force you you have a choice and there was a back-and-forth. I was trying to process what was happening and why? Every time I said yes I’ll take the test or I don’t seem to have a choice no matter what I said they would mumble under their breath it’s a refusal. My answers summarized were “I guess I have no choice“ “ I’ll take the test“ “I’m not refusing“ “ yes yes give me the test“ “I’m not refusing I’m not refusing you must give me the test I’m not refusing anything give me the test take the test I’ll take the test”. After I said “yes yes I’ll take the test give me the test“ they responded with that’s a refusal and I was silent for less than 10 seconds and these for Heughan saying it was a refusal and then I said I’m not refusing anything and it went on from there when we got to the station I said “why won’t you give me the test I’m not refusing please just give it to me!” They laughed at me and said “it’s too late now” everything was caught on video except for the last part where they laughed at me and said it’s too late now. The officer‘s testimony was that they read the DL 26 form I asked to read it again they read it a second time and I was silent and he took my silence as a refusal. The video evidence is nothing of the sort. That testimony was in the Plemon airy hearing where they dropped the alcohol part of the “refusal“ it then turned into a drug refusal DUI but the fact is I never refused they didn’t allow me to take the test and I believed I asked them if I had my own prescription in my blood if that would count as a DUI LIE even though I doubt that it’s in there because I didn’t take any today and I was sweating all day long drinking water with any amount of my own prescription be considered a DUI and their answer was “you don’t have the power here“ so they are using that part now because it’s no longer a refusal it’s now just the field sobriety test and the officers testimony which is selective and incorrect. My eyes were fluttering blinking when I was looking up at the sky counting in my head so they say and if they were it’s because I was nervous and I have anxiety disorder and PTSD also ADHD and a sleeping disorder. I’m also farsighted which did not or may not have helped with the pen test but I did follow the pen my eyes did not converge because I move my head back to avoid getting hit in the forehead with his pen. Meanwhile the 700 lm flashlight shining in my face and the spit particles coming out of his mouth with no mask on added to mine anxiety as this was July 20 20 in the midst of the unknown pandemic. When I went to the pre-trial conference the offer was made to me to except the DUI charges to have 10 days in jail a $500 fine, a loss of license for one year with an interlock put on it and they were dropped the child endangerment charges the duties at a stop sign and all the other vehicle in fractions that they could think of and I said “I can’t except that“ because they’re asking me to lie under oath and admit that I was intoxicated. I told my lawyer that I cannot go to jail that is why I have PTSD because I was kidnapped for a civil case that turns criminal because I was a jerk to a detective that kept calling me about a check that a customer put a stop payment on and she was a very powerful person in the community that owns over 12 day cares. I did not realize it was even a detective because I thought it was her ex-husband harassing me until he told me there was six warrants out for my arrest I called the court and asked if this a detective existed and then I had to go to court by a phone call made to me by the detective to tell me to show up. When I called the court I asked if there was a detective by the name given they said “yes we just got off the phone with him and you are going to have court at 9 AM Wednesday morning. I thought it was the following week but it wasn’t they called me as I was pressure washing a house I raise their got there in 15 minutes and the judge paraded me degraded me humiliated me and threaten to throw me in Macgomery County prison several times well I keep my head down. Little did I know that I was still on probation for the 22,012/2013 DUI which I was actually a real limit in those cases. The officer did not even take my license he told me to put it away after he got my name is Liebers and then charge me for failure to
Carry a license on top of the other charges of new brake lights duties at a stop sign and going over the fog line. How am I supposed to perjure myself and say I did something that I did not do to say I’m guilty when I was not guilty? I’m threatened with 18 months in upstate prison if I don’t take this plea when they have no real evidence of anything whatsoever in my system and it’s because they did not allow me to take the blood test and they did not allow me to have a breathalyzer test. I was forced to blow in a breathalyzer machine five times a day for about four months because it was a violation of my probation. I was told if I miss a blow in then I’m going to jail that has put me in a high stress situation and when the batteries died I got called and yelled at and threatened if I was a couple minutes late I got called in yelled at a friend . I had the machine go off as I was driving down the turnpike at night and had to blow in it while a camera flash blinded me as I’m driving. The whole time I had this machine was a nightmare for my family and I had to continually use it and take it with me and humiliate myself and put myself in great danger by following their instructions. I was told to get evaluation for drugs and alcohol so I went to a dual boarded psychologist addiction specialist psychiatrist doctor someone who is 1 in 1,000 with his credentials in the United States. He did the evaluation and concluded that I did not have alcohol or drug addiction problem however I have PTSD, anxiety disorder and ADHD. This horrible false accusation has cost me thousands of dollars and I had to spend my wedding money to pay for the lawyer and I was able to get a 30 day continuance in order to get a letter from my counselor whom I have been seen ever since the incident and have spent it was $3000 of my money to pay him to help me with my anxiety and stress as I am constantly under attack. This has all been destroyed my life and my hopes and my dreams and my poor fiancé has been dealing with it and she never got in trouble in her life but is now in fear of the police because she saw what they did to me when she knew that I was sober and so did the 14 or 15 other people who were with me down the river that day. This has caused my PTSD and anxiety to grow 10 times worse and my business to fall apart I’m greeting every month with two probation officers was it written across their chest so all my neighbors can see it when they come to the door I feel like I’m getting arrested every time I’m crying out for help my heart is broken my happiness has been taken away from me as I was kidnapped and taken away and stuck in a prison for 30 something days and for the first five days I had no idea why I was in there. I could’ve stayed in there for months to go to court and fight and easily win the check case but I needed to get out of that place because I don’t belong in there and I took another plea and they reinstated my provision from the 2012/2013 incident so I am still technically information for DUI I literally got in 2012. They’re turning me into a recluse and now they’re trying to hang me and ruin my life by giving me a third DUI charge and they’re trying to make me put my hand on the Bible and swear I’m telling the truth and lying because I am not guilty of this and no one seems to care. My heart is broken for my family so I took under my wing read someone else’s children since they were seven years old and staying out of trouble for almost 5 years until this false accusation. Is there any lawyer out there that is willing to stand up to the state and defend me instead of caving and wanting me to plea for something that I did not do so they can have dinner with a DA afterwards and still be friends? I just want to be left alone and live my life in the best way I know how by going to church and being happy getting married and feeling free because I have not felt free for over a decade and I don’t even know what the word means anymore I’m in a very dark depressed place in my life and it’s not right it’s not fair it’s completely immoral to do this to someone just because they can? Do you think you can help me I got a 30 day continuance I cannot go to jail and my lawyer does not seem to be the one that wants to defend me only cave. I have a recording of the preliminary hearing in the Penn Dot license suspension appeal which I won however they PennDOT appealed that decision