There are imposing sanctions for Chester County DUI's.  If there is an out-of-state license, your Chester County DUI lawyer is going to have to determine what, if any, suspension you face at home.  The first thing to determine is whether Pennsylvania is the home or licensing state with the provisions of the Compact.  Recall that the Compact is between 46 states and follows the following,

1. The “one driver license” concept, which requires the surrender of an out-of-state driver’s license when application for a new license is made;
2. The “one driver record” concept, which requires that a complete driver record be maintained in the driver’s state of residence to determine driving eligibility in the home state, as well as for his nonresidence operator’s privilege in other jurisdictions;
3. Reporting of all traffic convictions and license suspension/revocations of out-of-state drivers to the home state licensing agency, as well as other appropriate information; and
4. The assurance of uniform and predictable treatment of drivers by treating offenses committed in other states as though they have been committed in the home state.

Pursuant to Article IV of the Compact, only the licensing authority of a driver's home state is required to act upon a report of the driver's impaired or intoxicated driving conviction received from the convicting state.  The Compact defense "home state" to mean the "state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle."  The key for determining which state is a driver's "home state" for purposes of the Compact is the date on which the driver is convicted of the out-of-state DUI offense (see Schrankel v. DOT, Bureau of Driver Licenses from 2000).  

Thus, a driver's "home state" for purposes of the Compact is the state that had issued the driver a driver's license on the date the driver was convicted of the out-of-state DUI offense.  Thusly, if a driver is a PA licensed driver on the date an out-of-state DUI offense is committed, but is a NY-licensed driver on the date the driver is convicted of that DUI offense, for Co.  mpact purposes, NY, not PA, is the driver's "home state" for purposes of Article IV fo the Compact

Probable Cause Standard

There are many good cases where probable cause to arrest is explained.  "Where there is a reasonable suspicion of criminal activity or of a passenger's being armed and dangerous, a police officer may order a passenger to alight from a vehicle that has been stopped for a traffic violation. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988). An arresting officer need not expose himself or herself to potential injury from a passenger during the course of an investigation being conducted to determine if the vehicle is stolen. Once the officer formed the reasonable  belief that the car may have been stolen, he was legally entitled to take the protective step of removing all the occupants from the car in order to examine the VIN on the dashboard. The United States Supreme Court has recognized the significance of the VIN and the necessity of safeguarding an officer's physical well-being during an investigation to determine it. HN2A demand to inspect the VIN is within the scope of police authority pursuant to a traffic violation stop. New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 966, 89 L.Ed.2d 81, 91 (1986). Since the officer had authority to inspect the VIN, it follows that he may take reasonable precautions against physical harm that may be inflicted by any occupant of the vehicle". Commonwealth v. Robinson, 399 Pa. Super. 199, 203-204 (Pa. Super. Ct. 1990)

Thus, if a police officer has an "articulable and reasonable ground" to suspect a violation of the Vehicle Code enough to stop a vehicle, he may then order a defendant out of his car.  As the Commonwealth v. Rodriguez court stated in 1997, all occupants of a lawfully stopped vehicle may be ordered from the vehicle.  

Probable Cause for DUI

A Chester County DUI lawyer is well-versed in the Commonwealth v. Klingensmith case from 1994, In this case, appellant challenged his conviction for driving under the influence of alcohol, driving with suspended operating privileges, and driving without a registration plate. Appellant alleged that he was arrested without probable cause, that the intoxilyzer results should have been suppressed because appellant was not given his Miranda rights or his implied consent obligation under state law, and that he was subject to an illegal sentence. The court affirmed appellant's conviction because the police validly stopped appellant when the police observed that he was driving a car without a registration plate. Appellant's subsequent failure of the sobriety tests gave the police probable cause to arrest appellant for driving under the influence of alcohol. Appellant was not entitled to receive Miranda warnings. 

Appellant told the officer that he had been arrested five times for driving under the influence, that he knew the implied consent warning, and that he consented to the test. The trial court had discretion to impose consecutive sentences for the charges under which appellant was convicted.

So, the lead up in the PC for DUI in Chester County is -- proper stop, suspicion of DUI gained through observations and field sobriety tests and visual cues.  

The breath test procedures in Pennsylvania for a DUI are often overlooked by Chester County DUI lawyers, despite the fact that they may be potential avenues for beating a case.  According to the Pennsylvania Code, Section 77.25(b), for test results for a breath test any Chester County DUI must be disregarded and the breath test removed from service if,

1) the difference between the results of the two actual alcohol breath tests is .02 or more, for machines read to the second decimal place, or .020 or more for machines read to the third decimal place, or 

2) the simulator test yields a result less then .09% or greater then .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less then .090% or greater then .109% when the breath test device can be read to the third decimal place. 

This section is covered under the Pennsylvania code 77.24(b). In order to comply with the statute and regulations, the Commonwealth must show that two consecutive actual breath tests were performed. Two consecutive actual breath tests were not obtained in the case of Commonwealth v. Stoops, when one breath test did not perform and "air blank" test and the other did. When a defendant took only one breath test and refused the second, the requirements were not met. This is the case of Commonwealth v. Diulus from 1990. 

Certificates of calibration accuracy or only presumptive evidence of proper testing for accuracy. They are not presumptive evidence of the accuracy of breath test results, injury instructions to that effect were reversible error. This is the case of Commonwealth v. Sloan. In this particular case, the jury should have been instructed that if they believed the test results were reliable, they could draw all reasonable inferences from the results of the Intoxilyzer test, but they should have been cautioned that the test is only evidence of the defendants intoxication and the test results does not require such a finding.

75 Pa. Cons. Stat. § 3742.1 is the statute for this Chester County crime.  It states,

A person whose operating privilege was disqualified, canceled, recalled, revoked or suspended and not restored or who does not hold a valid driver's license and applicable endorsements for the type and class of vehicle being operated commits an offense under this section if the person was the driver of any vehicle and caused an accident resulting in injury or death of any person.

Remember that Mens Rea is the mental element of an offense that happens with the actual act, or actus reas.  

Chester County Homicide by Vehicle DUI

75 Pa.C.S. § 3735 is the statute for this crime in Chester County.  It states, 

Any person who unintentionally causes the death of another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 is guilty of a felony of the second degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years. A consecutive three-year term of imprisonment shall be imposed for each victim whose death is the result of the violation of section 3802.

Additional Thoughts and Cases

In Commonwealth v. Nicotra, the defendant's convictions for vehicular homicide, involuntary manslaughter and aggravated assault, were affirmed because the evidence was sufficient to prove beyond a reasonable doubt that defendant's intoxication and reckless driving were the cause of the fatal accident.  But, the jury must be instructed to look at the other driver/pedestrian's behavior.  A conviction for homicide by vehicle while driving under the influence, in accordance with 75 Pa. C.S. § 3735(a), was reversed where jury was improperly instructed to disregard the contributory negligence of the victim, who was also under the influence of alcohol.  Commonwealth v. Molinaro, 429 Pa. Super. 29, 631 A.2d 1040, 1993 Pa. Super. LEXIS 3146 (1993).  This would be a particular angle for a Chester County DUI lawyer, who would seek to convince a jury that the intoxication wasn't the sole reason for the homicide/death. 

Evidence was sufficient to support a conviction for homicide by vehicle while DUI as, although there was an eleven-hour time lapse between the accident and the blood test, a forensic expert testified to a reasonable degree of certainty that defendant's BAC was at least 0.08 percent at the time of the accident, defendant admitted that he had an accident while drunk, officers found an open bottle of beer in the car, and another witness testified that defendant appeared intoxicated a few hours before the accident.  Commonwealth v. Cruz, 2013 PA Super 195, 71 A.3d 998, 2013 Pa. Super. LEXIS 1660 (Pa. Super. Ct. 2013).

Chester County Implied Consent - 3rd Party Information

If a cop gets a call that a person is swerving or DUI, is that justifiable under the Implied Consent rule?  Yes.  A police officer may be able to formulate reasonable grounds without any witness having observed the driver actually operating a vehicle and it is imperative that your Chester County DUI lawyer know this.  This comes from Patterson v. Commonwealth, 138 Pa. Commw. 292 (Pa. Commw. Ct. 1991).  In that case, the court held that the police officer had reasonable grounds to conclude that appellant was operating a vehicle while intoxicated prior to making the arrest, as a witness identified defendant as the driver, and the police officer testified that driver had a strong odor of alcohol.

Also, hearsay rules are thrown out the door in these administrative appeals, much to the tremendous distaste of any lawyer who respects the rules of evidence, so an officer can testify to what he was told, rather than having the original person who made the statement testify.  See Menosky v. Commonwealth, 121 Pa. Commw. 464 (Pa. Commw. Ct. 1988) for more information.  

Does an Officer Have to Be Correct?

Even if a police officer later turns out to be incorrect that a person was not riving under the influence or in violation of the ignition interlock statutes, it does not overturn the officer's reasonable grounds at the time of the chemical test request.  The case supporting this standard is Menosky v. Commonwealth, 121 Pa. Commw. 464 (Pa. Commw. Ct. 1988).  In this case, appellant licensee's van was found at the scene of an accident. Officers discovered that appellant was the owner of the van and went to his home to question him. Once at his home, the officers arrested him for drunk driving and appellant refused to take a breathalyzer. The department of transportation suspended his license pursuant to 75 Pa. Cons. Stat. § 1547(b). The trial court upheld the department's action. 

On appeal, the court affirmed. The court held that the facts and circumstances were such that a reasonable person was able to conclude that appellant was driving while intoxicated. There was testimony that only 15 minutes transpired from the time the police received the radio call advising them of the accident until they interviewed appellant at his home. The individual who telephoned the police to report the accident stated that the man involved in the accident appeared to be intoxicated. Appellee state properly offered the individual who reported the accident's out-of-court statement to explain why a police officer arrested appellant. The officer personally observed appellant's condition at his home and placed him under arrest.

Such a standard is infuriating.  It allows a cop to be dead wrong, but with no recourse.  Also, it allows an officer or a trooper to be dishonest.  

Prior to 2004, the standard in Pennsylvania case law to stop a vehicle was probable cause if an officer suspected a violation of the vehicle code. The amendment in 2004 set the standard at reasonable suspicion. This aligned Pennsylvania with the Supreme Court case that outlined a Terry stop. 

So, for DUI's, the same rules apply for any stops in Chester County.  In these cases, a Chester County DUI lawyer should know what constitutes reasonable suspicion and probable cause and make sure the officer followed the law accordingly.  

The Pennsylvania Supreme Court found that this lower standard of reasonable suspicion does not violate either the federal or Pennsylvania constitutions. It noted that the previous hot heightened standard which was probable cause was only statutory. This was enlightened by the court in Commonwealth v. Chase of 2008. This new holding is consistent to what the Superior Court had held at least for DUI cases. The case of particular importance is Commonwealth versus Ulaan. In this case, from 2006, an experienced officer observed a motorist "buzz" through an emergency zone at approximately 60-65 mph where the limit was 35 mph. It was held that the officer had reasonable suspicion to stop the vehicle. In addition, in 2006, in Commonwealth v. Smith, the Superior Court held that reasonable suspicion may also be supplied by anonymous tips.

Frequently, Chester County DUI's start with a police stop for a violation of § 3309, Driving on roadways laned for traffic.  Essentially, this is frequently a "catch-all" for stopping a person who is allegedly swerving, crossing a traffic line, etc.  

Having a video in this case is always helpful to your Chester County DUI lawyer in terms of getting the stop suppressed if the cop or trooper exaggerates the violation.  

In Commonwealth V. Bostick out of Monroe County, it was held that probable cause existed to stop a vehicle for the violation of 75-3309 after the trooper received reports of the defendant's erratic driving, the troopers observed the car swerving within its lane, and traveling at a slow spped and almost striking construction signs.  

A very important case is Commonwealth v. Feczko.  This is a Superior Court case.  Defendant challenged the legality of the traffic stop of his vehicle. The appeals court found that traffic stops based on a reasonable suspicion either of criminal activity or a violation of the Motor Vehicle Code under the authority of 75 Pa.C.S. § 6308 had to serve a stated investigatory purpose. Defendant claimed that the suppression court erred in denying his motion to suppress challenging the basis of the traffic stop. Based on the record of the suppression hearing, the appeals court concluded that the trooper was able to articulate specific facts possessed by her at the time of the questioned stop that provided probable cause to believe defendant was in violation of 75 Pa.C.S. § 3309(1). The suppression court viewed a video recording from the trooper's patrol car and observed numerous touchings of the white fog line by defendant's vehicle and clearly saw the vehicle cross over the center yellow line while negotiating a curve. Given the presence of oncoming traffic, defendant's deviations from his lane of travel created a significant safety hazard. The traffic stop of defendant vehicle was legal. Accordingly, the trial court properly denied the motion to suppress.

In addition, in Pa. v. Anderson from 2007, the court ruled that as the defendant in the case failed to keep his vehicle within the confines of his own lane, he veered beyond his own lane while attempting to correct his position, and he was speeding, a police officer had a reasonable suspicion that defendant had violated various provisions of the Pennsylvania Vehicle Code, including 75 Pa.C.S. §§ 3301(a), 3307(b), and 3309(1), such that the officer's stop of defendant's vehicle was reasonable and lawful under 75 Pa.C.S. § 6308(b).

The technician is not required to internally examine a breathalyzer machine before checking it for accuracy and calibrations. This was outlined in the case of Commonwealth v. Demor of 1997. Only those machines which have failed accuracy and calibration testing under 77.24 (b) or 77.25 (b) must be serviced, repaired, or adjusted as needed, and then retested for accuracy and calibrations. Malfunctioning means failing to perform on accuracy and calibration tests required to be performed under the rule. The Commonwealth's introduction of a calibration certificate of accuracy and the Pennsylvania Bulletin to prove that the machine in question did not malfunction is not this positive. 

The certificate only proves that the device was properly tested and that during testing it had delivered an accurate reading to the level that was required. The certificates do not provide presumptive evidence to the jury on the accuracy of the breath test results in question, but only presumptive evidence of the accuracy of the testing equipment. The Pennsylvania Bulletin only proves that the equipment is approved by the Department of Transportation. This is relevant to the case of Commonwealth v. Stoops, which your Chester County DUI lawyer should have in his or her office. The procedures for alcohol breath testing must include, at a minimum: one to consecutive actual breath tests, without a required waiting. Between the two tests; to one simulator test using a simulator solution designed to give a reading of .1 the rope percent, conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used by the prosecution of the Chester County DA's office.

As we discussed hearsay exceptions previously, we must keep in mind that statements of memory and belief are specifically excluded as an exception. In fact, almost any statement used to describe events that he speaker has experienced in the past can be characterized as a memory, which is a presently existing state of mind when it is conveyed. You can't have someone say, "He later recalled that he was drunk" in a Chester County DUI matter.  This would be specifically objected to by your Chester County DUI lawyer to make sure that it is kept out.

If such statements were made admissible under 803 of the Rules of Evidence, to prove the facts remembered, parties could offer hearsay to establish almost any past fact, a result that would mark a virtual destruction of the hearsay rule. The exclusion of statements of memory or belief grew out of the opinion of the justices on the Supreme Court. The justices opinion was in Shepard V. United States. In this case, the Supreme Court refused to admit under the state of mind exception a statement by defendant's wife that "Dr. Shepard has poisoned me". The court said that the testimony now questioned faced backward and not forward. What is even more important, it spoke to a past act and even more than that, to an act by someone not the speaker.