I was talking to a Quakertown DUI lawyer as well as a Bucks County Criminal lawyer about the theory of "justification" or "necessity" in a DUI.  

For example, picture yourself at home and you are consuming alcohol.  What if  your wife was sick and needed to go to the hospital?  Or you were in fear of your life because someone wanted to hurt you?  Can you be charged with a DUI in Pennsylvania?  

There's a case called Clouser that illuminates the standard of law.  The cite is Commonwealth v. Clouser, 2010 PA Super 115 (Pa. Super. Ct. 2010).  In the case, after the defendant had drinks at a tavern with his girlfriend, the girlfriend exited the tavern, and saw another woman sitting in what she believed was defendant's car. She demanded that the woman exit the car, which culminated into a physical fight involving numerous people. Defendant, upon seeing his girlfriend, also became involved in the fight. Defendant averred that as the crowd became larger, the tavern owner urged him to leave in order to avoid a police presence at the tavern. Accordingly, defendant drove away with his girlfriend. Approximately 4.8 miles away, his car became stuck in a ditch. A blood test revealed defendant's blood-alcohol level at 0.19%. At trial, defendant requested a justification charge, claiming that he had to flee the tavern because he faced imminent danger there. The appellate court found, inter alia, that although defendant presented evidence that he initially faced a clear and imminent harm, he failed to offer any evidence that driving at least 4.8 miles away from the tavern was the minimum action necessary to avoid the danger. Accordingly, the trial court properly denied defendant's request for a § 503 justification instruction.

So here's the general ruling -- 

In order to be entitled to an instruction on justification by necessity as a defense to a crime charged, a defendant must offer evidence to show: (1) that he was faced with a clear and imminent harm, not one which is debatable or speculative; (2) that he could reasonably expect that his actions would be effective in avoiding this greater harm; (3) that there is no legal alternative which will be effective in abating the harm; and (4) that the legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. 

As with any offer of proof, it is essential that the offer of proof, justifying an instruction on justification by necessity as a defense to a crime charged, meet a minimum standard as to each element of the defense so that if a jury finds it to be true, it would support the affirmative defense--here that of necessity. This threshold requirement is fashioned to conserve the resources required in conducting jury trials by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses raised by the defendant. Where the proffered evidence supporting one element of the defense is insufficient to sustain the defense, even if believed, the trial court has the right to deny use of the defense and not burden the jury with testimony supporting other elements of the defense. 

Pennsylvania Rule of Evidence 402 and 403 relate to pretrial experiments. In these cases, a party seeks to admit tests or experiments for the purpose of showing how a particular event did or did not occur. They must first demonstrate a substantial similarity of circumstances and conditions between the test and the event in question. In a Chester County DUI, you must be prepared for a pretrial experiment relating to accident reconstruction, alcohol testing, and field sobriety reenactments.  Each of these must be reviewed by your Chester County DUI lawyer to make sure that they are proper and, if not, should be objected to.  

hat standard arises from Commonwealth v. Sero from 1978 and, Commonwealth v. Smith from 2002. There are whole host of problems relating to experiments and there is a significant danger of misleading the jury who may attach some sense of exaggeration or significance to the test results. Please note, however, that near-perfect identity between the experimental and actual conditions is neither attainable in reality nor is it required by law. 

But the conditions of the experiment and of the actual occurrence must be sufficiently similar to provide a fair comparison. This similarity must be established and if established, any differences if any between the experiment and the actual event only go to the weight to be given to the experimental evidence. The court should weigh the probative value of the experimental evidence.  The court, therefore, must weigh the value of the experiment against the dangers of confusing the issues before the jury based on unfair prejudice and undue consumption of trial time (meaning -- it is a waste of time). The courts have found probative value in the following circumstances: demonstration showing effect on nails of a wooden board breaking down word, test crash films, chemical testing of liquor, and dynamic experiments on the same year and model car.  The courts of Pennsylvania have cautioned that a video tape reenactment has the potential to make a stronger impact than world testimony, any trial judge should view the tape in private prior to showing it to the jury it, especially where the opposing party claims the tape is overly prejudicial.

ARD & Habitual Offender

I previously wrote about out-of-state licenses and the habitual offender status.  Now it is important for your Chester County DUI lawyer to talk about the potential impact of ARD and an out-of-state DUI with respect to the habitual offender status.  

Specifically, Section 1542(c) states that a driver's acceptance of admission into an ARD program relating to one of the offenses set forth in Section 1542(b) is considered an "offense" for purposes of determining whether the driver is subject to the habitual offender sanction.  This is very important to understand if you go into another state's ARD (or similar) program.  PennDot is permitted to treat a driver's acceptance of ARD as a "conviction" for purposes of determining if the driver is a habitual offender, as outlined in Hillwig v. Department of Transportation in 1987.    There is no requirement that, prior to accepting ARD for a serious violation of the Vehicle Code, such as DUI, that a driver be apprised of the collateral consequences of accepting admission into the program and such an omission does not constitute a violation of due process.  It is also vital to know that a driver's "mere acceptance" of admission into an ARD program for one of the offenses outlined in 1542(d) counts that admission as a qualifying offense under 1542(c).  This is true even if the driver is later removed from the ARD program and either found guilty of the underlying offense at trial or enters into a plea bargain where the underlying offense is either dismissed or nolle prossed and the driver pleads guilty to a lesser offense.  This is tremendously harsh, so you must be smart about your decision here.  

Out-of-state DUI Offenses

If a person receives an out-of-state impaired and intoxicated driving offense that is reported to Pennsylvania pursuant to the Driver License Compact and are considered "serious" traffic offenses and counted towards determining whether a driver qualifies as a "habitual offender" within the scope of Section 1542.  Article 4 of the PA Driver's License Compact requires Pennsylvania to treat a report of a PA-licensed driver's convcition of an out-of-state impaired or intoxicated driving offense that is substantially similar to the offense described in Article IV(a)(2) of the Compact the same as if the driver had been convicted of violating PA's DUI statute.  

One of my favorite rules of evidence which I use very frequently in objections is the Pennsylvania Rules of Evidence 611(a). The objection relates to an individual who is a witness who is assuming facts not placed into evidence. 

What this means is that a question which assumes the existence of a fact not established by the evidence is improper, as the court in Commonwealth v. Rivers from 1994 determined.  The court may however, entertain assuming facts not in evidence, if the attorney represents that the assumed fax will be proven later. Such a representation however should not be made if it cannot be fulfilled, as the court in Commonwealth v. Williams from 1979 stated. In fact, the court stated that it was unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner cannot support by evidence. 

Frequently, this happens when a prosecutor asks a cop in a Chester County DUI, "When did you know that the driver was drunk?"  You can't say that.  He can point to signs of intoxication, but he's not a medical expert or a lab test.  He can say, "Did you come to a conclusion, based on your observations, that the client was incapable of safe driving?", but you can't say the person was drunk.  

The law essentially has stated that an attorney, in asking a question that assumes facts not in the into evidence, must have a "good faith" basis before asking any question on cross examination. The rule is tremendously important as it's designed to prevent the irresponsible prosecutor or defense attorney from salting or planting a fictitious accusation in the minds of the jurors by framing a question in an inappropriate manner. 

For example, in an assault case, the old standby question of "why did you stop beating your wife?" should be objected to by a Chester County DUI lawyer.   Of course, this question, in a not so subtle way, implies that you were beating your wife and that piece of evidence has already been proven.  Any particular cases you see the theme that there's a fact that's assumed that has not been established as you know as well as I do that beating a wife must be proved independently. 

Miranda in a Chester County DUI

Frequently, people ask if they must be given Miranda warnings during a Chester County DUI.  First -- understand this -- Miranda warnings are only required if the police are going to use what you said against you.  This also has to be done in a "custodial detention".  Thus, at a routine traffic stop, simple questions are not part of a custodial detention.  

With that being said, here's a review of some cases regarding Miranda:

Remember the standard, as outlined in Pennsylvania v. Bruder from 1998 (a U.S. Supreme Court Case).  Miranda warnings are required when detaining a suspect on the side of the road and if the suspect is actually placed under arrest or when the questioning of the suspect is so long or coercive to approximate the atmosphere of a station house interrogation.  Strangely, however, the court held that the results of a field test were not testimonial in nature and did not require any warnings, as outlined in Commonwealth v. Kloch from 1974.  

Commonwealth v. Hayes from 1996 states that Miranda Warnings are not required prior to field sobriety tests at a sobriety checkpoint.  However, suppression was required when a motorist suspected of DUI was placed in a police car and was not free to leave.  This case is Commonwealth v. Turner from 2000.  In this case, it makes sense because the general standard is whether a person feels free to leave.    

More Cases for Miranda and DUI

Any Chester County DUI lawyer or even a Bucks County criminal lawyer will tell you that if it is an emergency situation, statements made by a motorist who was being treated by a State Trooper is not an illegal custodial interrogation.  This can be found in Commonwealth v. Perry from 1998. Moreover, the court has held that routine questioning of an injured and intoxicated motorist while the motorist is being treated at a hospital is not tantamount to custodial interrogation requiring Miranda warnings (Commonwealth v. Fento in 1984).  The appellate courts in Pennsylvania have further followed the Bruder holding to permit a "few questions" and to allow performance of field tests in a public area, as outlined in Commonwealth v. Toanone from 1989.  Finally, the courts have determined that the roadside questioning at an accident scene does not inhibit a motorist's freedom of movement so as to require Miranda warnings, as outlined in Commonwealth v. Proctor from 1995.  

There's a particular Rule of Evidence in Pennsylvania which is Rule 701. Under Rule 701, a witness who is not testifying as an expert, is limited in testimony in the form of opinions and inferences to those which are based on his perception and helpful to a clear understanding of his testimony or the determination of a fact in issue. 

This is called the legal conclusion rule of evidence. It is a rarely used objection, but it is helpful for Chester County DUI lawyers.  

For example, when witnesses are asked whether conduct was unlawful or on willful, these terms demand an understanding of the nature and scope of the law which only the trial court may properly conclude. Thus, if a witness concludes that a person conspired or was willful in their actions, that conclusion should only be made by the trier of fact (the Chester County judge). The witness in this case is unfamiliar with the law and may falsely feel that the legal standard is either higher or lower than it really is. Neither event a jury may give too much weight to such a legal conclusion drawn by witness. 

A case on point is one in Pennsylvania in 1943 where it was improper for a witness to be asked whether a nurse would disturb a reasonable person. In Commonwealth v. Joseph, this 2004 Superior Court case found that the trial court properly precluded questions to a detective which sought to elicit legal conclusions about emails allegedly used to entrap the defendant. In Commonwealth v. McLean, this 1989 case from the Superior Court found that it was proper to exclude testimony regarding a victim's living arrangements as to whether it was a common-law marriage. Again, in this case, the person testifying did not have the legal expertise to determine what a common law marriage was. 

Another case is Commonwealth v. Johnson from 1988 which determined that a psychiatrist was not qualified to testify whether his definition of mental illness was the same as the legal definition of mental illness. Finally, a Superior Court case in 1984  determined that it was correct to 16 objections to questions asking a landlord if you had a duty to see that the tenant operated it's business properly. There are a plethora of federal courts that have found that late meanings can be different than legal meanings. For example, United States v. Lavigne, a 1999 matter, found that there was no error and allowing a prosecutor to ask the defendant if he had forged signatures on checks. The specific reason behind the courts ruling was that forgery was a description of ask that did not come close to a legal conclusion and was more a lay opinion. The court in Lavigne stated, "witnesses can't insist that the prosecutor use euphemisms when inquiring into conduct that the indictment labels a crime. The prosecutor may ask and accused thief whether he stuck up the teller and robbed the bank; he may ask and accuse drug peddler whether he sold drugs to an undercover agent; he may asking accused price fix or whether he joined a cartel; he may asking accused killer whether he murdered the deceased… All are proper subjects of cross examination, provided only that the judge makes it clear to the jury that neither the questioner nor the witness defines the elements of the offense".

This is a case that involves whether ARD violation occurred with multiple DUI's.  The case is Whalen v. DOT, Bureau of Driver Licensing, 613 Pa. 64 (Pa. 2011).  It is of vital importance to any Chester County DUI lawyer. 

The driver was arrested for DUI in Florida, and he was convicted. Nine years later, he was arrested for DUI in Pennsylvania and charged with violating 75 Pa.C.S. § 3802(c). The trial court admitted the driver into an accelerated rehabilitative disposition (ARD) program under 75 Pa.C.S. § 3807 upon determining that his Florida DUI conviction did not present a bar thereto. The driver successfully completed the program. As a condition for restoration of his suspended operating privileges, which was a condition of the ARD program, the DOT directed the driver to install an II system on his vehicles under § 3805. On appeal, the trial court determined that the II requirement did not apply because the driver was not "convicted" of "violating" any DUI provision pursuant to the ARD resolution. That decision was affirmed, and upon further review, the court disagreed. It was clear that the Florida DUI was a "prior offense" for purposes of § 3805. Further, acceptance into the ARD program constituted a violation of § 3802 for purposes of § 3805. Accordingly, the driver was subject to the II requirement.

Additional commentary included, that although accelerated rehabilitative disposition (ARD) is legally distinct from a conviction, the General Assembly has chosen to equate ARD with a conviction under a variety of circumstances. For example, ARD may be statutorily construed as a conviction for purposes of computing sentences on subsequent convictions.

The court found that based strictly on the plain text of 75 Pa.C.S. § 3805, the ignition interlock requirement is applicable when a person "violates" 75 Pa.C.S. § 3802, and also, within the preceding 10 years, had a "prior offense," i.e., a prior conviction or prior acceptance of accelerated rehabilitative disposition for an offense under § 3802 or similar provision.

If an individual is convicted of a Chester County DUI or an ignition interlock violation of 75 Pa.C.S. § 3808(a)(2) and has two prior convictions for qualifying offenses that were committed within 5 years of the latest DUI or ignition interlock offense, the offender would be subject to a 5 year operating privilege revocation mandated by 75 Pa.C.S. § 1542(d).  The statute states, 

A "habitual offender" shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.

In some cases, this can come back to haunt you.  For example, "Defendant did not contest the convictions on which his five-year license suspension was based; as the Department acted in accordance with § 1542 in imposing the five-year suspension, it was proper. The Department's imposition of an additional two-year suspension was proper because defendant's convictions of driving under the influence and fleeing or attempting to elude a police officer were separate acts and offenses, even though they arose from the same incident."  Commonwealth v. Bachman, 1983 Pa. Dist. & Cnty. Dec. LEXIS 198 (Pa. C.P. 1983)

Commonwealth v. Melcher is a particularly important case, where the Commonwealth's department of transportation issued a five-year revocation of the driver's operating privileges pursuant to the habitual offender's provisions of the Vehicle Code, 75 Pa. Cons. Stat. Ann. § 1542. The driver appealed the revocation to the lower court, which dismissed the appeal and reinstated the revocation order. The driver appealed. The court affirmed the revocation and dismissal of the appeal because the driver was found guilty of violating the Vehicle Code for racing on highways, for fleeing or attempting to elude police officer, and for driving without lights to avoid identification or arrest. Each violation was set forth in § 1532(b) of the Vehicle Code. Therefore, the driver was convicted of three separate and distinct offenses, and the department of transportation properly applied the mandatory revocation provided by Vehicle Code § 1542. Although the violations arose out of a sequence of events that occurred within a space of approximately 10 minutes, the driver was convicted and paid fines for three separate and distinct Vehicle Code violations. Therefore, the evidence was more than sufficient to warrant the dismissal of the driver's appeal.

Most Chester County DUI's occur because the police allege that a traffic violation occurs.  In some cases, however, a Chester County DUI lawyer sees a case where a person is arrested after a "mere encounter".  This can include a "welfare check" or a casual "hello" from a police officer or trooper.  No reasonable suspicion or probable cause is needed in these cases.  

In these cases, you have to be very careful about the specifics of the case.  Potentially, a legal defense is that the "encounter" was pretextual.  Two main cases that stick out are Commonwealth v. Collins from 2008 and Commonwealth v. Kendall from 2009.  

In Collins, the defendant was in a vehicle parked legally, at night, at an overlook, an officer approached, and defendant blurted out that he was smoking marijuana. The appellate court held this initial interaction was a mere encounter. The interaction was first a mere encounter because a reasonable person in defendant's position would be free to terminate it. The officer parked 20 feet from the rear of the vehicle and did not turn on his overhead lights. The vehicle was not obstructing traffic or violating any traffic regulations. While people parked here regularly, they did not do so as frequently after dark, so the officer was concerned enough to check on the vehicle's condition and the occupants' safety. 

The officer saw no outward sign of distress, nor anything leading him to think illegal activity was occurring. He said the occupants did not act as if they were trying to get away. Instead, the officer asked if "everyone was ok," and defendant said they were smoking marijuana, at which time the officer smelled burnt marijuana and saw a bong in the vehicle. The facts did not show the officer acted in a coercive manner or spoke forcefully.

In Kendall, a patrol car was following defendant's car for approximately two or three minutes when defendant activated his turn signal and pulled off to the shoulder (where they would legally park!). The officer testified that as there was no driveway or anything else nearby, there was no reason for defendant to be pulling off; the officer thought of possible vehicle failure. The officer pulled behind defendant and activated his overhead lights. He exited his patrol car, approached the car, and asked defendant why he suddenly pulled over; defendant replied that it was to let the patrol car pass. The officer smelled alcohol on defendant's breath, and noted his slurred speech and glassy eyes. After defendant failed a field sobriety test, he was arrested for DUI. Defendant argued that the stop was not supported by reasonable suspicion. 

The appellate court held that as the evidence allowed the trial court to conclude that the officer was trying to determine if defendant needed assistance, his interaction with defendant was a mere encounter, which required no level of suspicion. That the officer triggered his overhead lights at nighttime to alert passing cars did not shift the interaction to an investigatory detention.

Thus, a person has to be careful just being stopped on the side of the road as an officer can approach for a mere encounter.  

We've discussed hearsay exceptions with respect to the Pennsylvania Rules of Evidence. One exception that practitioners should keep in mind is evidence of a declarant's out-of-court assertion of his or her then existing state of mind or emotional feeling. Specifically, in Commonwealth v. Keillen, sexual banter was proper state of mind evidence inconsistent with having just been sexually assaulted. In this particular case, it is relevant to how a person's present sense banter or emotions would lead to a conclusion contrary to the charges. Another case of importance is Commonwealth v. Ilgenfitz from 1976. In this case, error was involved and excluding a victim statement that she intended to see a Dr. because she fell injuring her head. This impacted the Commonwealth's evidence that if the deceased had suffered blows other than from defendant, she would've sought medical assistance. 

For cases where the exception was held not to apply, we look towards Commonwealth v. Laich. In this case, the out-of-court statement was admitted into evidence, but was found to be an error as the admission of the victim statement that if defendant ever caught her with another man he would kill them both. The defense was that the crimes were committed in heat of passion and the victim's state of mind regarding her relationship with defendant was a irrelevant. Another case is Commonwealth v. Hudson. In this particular case, excluding the defendant's statement to a witness that police beat the confession out of him was improper as that statement was made three weeks after the alleged beating.