What to Expect if You’re Expecting… a DUI: Preliminary Hearings

DUI Preliminary Hearings in PA: A Brief Introduction

I frequently represent people all over the Harrisburg area when they are accused of a DUI.  Two of the most frequent questions I get asked are:  (A)  What is a preliminary hearing all about, and (B) Am I definitely going to go to jail or lose my driver’s license after the preliminary hearing?  Here are also some others.

I have a DUI Preliminary Hearing. Am I going to jail?

No you’re not going to jail. Unless there is an outstanding warrant for something else, even in the worst case scenario where the charges are forwarded into Court for final resolution, you are not going to jail after the preliminary hearing.

I have a DUI Preliminary Hearing. Am I going to lose my driver’s license on the spot?

Again, the clear answer to that is no. The Magisterial District Judge cannot revoke your license. Neither can the police officer or even the District Attorney. In Pennsylvania loss of license is solely controlled by PennDOT. It is all conviction based (except a refusal). Even in the worst case scenario where the charges are forwarded to Court for more litigation, you will not leave the MDJ office with a conviction. So, as a result, your license will remain intact.

Ok.  Now that my two major concerns are removed, please tell me more about a preliminary hearing.

Often, the first legal step after a person is charged with a DUI is the preliminary hearing.  This is held at a Magisterial District Court.  For example if you were arrested and charged with a DUI in Harrisburg, your hearing would be held at one of the MDJ’s located throughout Dauphin county.

The preliminary hearing is not a trial and is held before a Magisterial District Judge without a jury.  Believe it or not a Magisterial District Judge is elected by those who live in the electoral district.  Magisterial District Judges do not have to be lawyers.  In fact, most are not.  Shockingly, they do not even have to be High School graduates.

In theory and in the law books, the purpose of a preliminary hearing is to protect individuals against wrongful detention and prosecution.  The Commonwealth of Pennsylvania has to technically prove a prima facie case meaning that a crime, in this case a DUI, was committed and that they have enough evidence to link the person accused with this crime (often expressed as more likely than not).  It is nowhere near the proverbial mountain of proof beyond a reasonable doubt that the Government has to prove at trial, but is likened to a hurdle.  It is still a burden they have to overcome, but is not insurmountable.

Will the DA be at the Hearing?

A District Attorney is not required to be present at the preliminary hearing, but it depends upon the jurisdiction as to whether or not one will be there.  For example, for DUIs in Dauphin County, Lebanon County, Lancaster County, Franklin County and Berks County, they are frequently present.  However, in other jurisdictions such as York County, Perry County, Adams County and Cumberland County, District Attorneys are not normally present for DUI cases.

For Pennsylvania DUIs, where will my hearing be held?

Some counties have Central Court held at their County Courthouse such Lebanon and Franklin.  Dauphin County has all Harrisburg City cases heard at the Dauphin County Prison.

How will the Prosecution try to prove my DUI charges?

Normally, the prosecution will try to introduce as evidence the arresting police officer’s testimony to produce its version of events.  After each and every witness your attorney will have the ability to question anyone who testifies against you (called cross-examination).  The Government will also typically introduce (or try to introduce) the breath or blood test results or the refusal.  The Government does not have to produce every piece of evidence it may have gathered against you, the accused.  Remember the burden is low.  The prosecution does not have to prove guilt beyond a reasonable doubt at a preliminary hearing.  The Government’s goal is to show that they have enough evidence to prosecute the DUI and get it in front of a jury.  Our job is to stop them.

It is the job of a defense attorney to challenge the evidence and ensure that the proper legal standards and procedures have been followed.  My job as a criminal defense attorney is to minimize or eliminate the consequences in the quickest and most efficient way spending the least amount of your hard-earned money as possible.

I blew a .18 and fell over during the Sobriety Test? Can my DUI charges get dismissed?

The short answer is yes, even ones where you feel that there are no hope and you were skunk drunk, charges can be dismissed.  Not all cases get dismissed at the preliminary hearing.  Some do and some do not.  I have seen many a case that look and appear in all respects to be rock solid by the affidavit of probable cause (which is the police narrative at the end of the criminal complaint that was sent to you in the mail) blow up in court.

Very often, the police do not follow the standardized procedures when conducting the roadside DUI tests.  You would be amazed how few prosecutors and police officers know how to properly prosecute a DUI case.  Oftentimes, breath machines are not calibrated properly and thus yield faulty results.  Sometimes, there are large errors in the collection and analysis of the blood.  If the Judge finds that there is not enough evidence to link the accused to the crime, the case should be dismissed.

What does a DUI Attorney do at a Preliminary Hearing?

My job, that of a DUI attorney and warrior for the citizen accused (besides the obvious of trying to have the charges dismissed) is to create as many issues of fact, law, common sense and especially science as possible.  My goal is always first to have the charges dismissed and if not, create a reasonable doubt in the mind of the arresting officer and/or the prosecutor even if the charges go forward.  If I can achieve a reasonable doubt in their minds, then frequently we will never see a Jury trial as they might give up.

Is it important for me to have a DUI Lawyer at my Prelim?

Preliminary hearings are very important and we highly recommend that you have a trained DUI expert at your side.  Previously, we discussed how to find a DUI Lawyer in PA.  An experienced lawyer can often times win your case at the preliminary hearing, saving you a lot of grief, distress, and money in the long run.

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.

One response to “What to Expect if You’re Expecting… a DUI: Preliminary Hearings”

  • I was stopped by troopers on walmart property for being “suspicious” I willingly told trooper I was in possession of marijuana and where it was located. He had me do field test where I told him preexisting conditions may prevent me from doing some parts due to major reconstructive surgery to my hip knee and femur. He said I failed miserably and arrested me. I told him I smoked earlier that morning, which I do every day, so I can get out of bed and walk and function. He took me in for blood test and arrested me on spot. Now I’m trying to relocate back to florida but can’t due to dui charges that keep getting postponed. Any way I can beat this case? Or am I screwed by American justice once again?

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