If you are involved in an accident and you are charged with a Chester County DUI, you may be facing an aggravated assault by vehicle while driving under the influence.  The statute is, 

Section 3735.1.  Aggravated assault by vehicle while driving under the influence.

(a)  Offense defined. – Any person who negligently causes serious bodily injury to 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 commits a felony of the second degree when the violation is the cause of the injury.

(b)  Definition. – As used in this section, the term “serious bodily injury” means any bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

As mandated by the vehicle code section 1547(c)(1), the Department of Transportation regulations as set out in the Pennsylvania code prescribed the minimum required breath test procedures. When you meet with your Chester County DUI lawyer, you should discuss the process for your breath test.  These regulations require that the person to be tested with breath test equipment be under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.

 Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer. As long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test. This is outlined in the case of Commonwealth v. Snell. Although the Commonwealth must prove the aspects of the testing process by a preponderance of the evidence, the observation of the driver does not mean that an officer must have his eyes on the drivers mouth 100% of the time. In the case of Commonwealth v. Snell, the Commonwealth met their burden and there was nothing to suggest that the defendant was out of an officers observation or view for any significant period of time. The regulations also require that 1) breath tests must be conducted by a certified breath test operator, 2) accuracy inspection tests and calibrations conducted using breath test equipment must be performed by a certified breath test operator, the manufacturer, or it's authorized representative, or a person who has received comparable training or instruction; and 3) the alcohol breath test, accuracy inspection tests, and calibrations conducted using breath test equipment must be performed in accordance with excepted standard procedures for operation as specified by the manufacturer of the equipment or comparable procedures. This is outlined in § 77.24.  

Believe it or not, I know far too many lawyers who don't request discovery in their client's cases.  They argue, the person is pleading guilty or getting ARD so why should I request it?  

Every defendant, under Rule 573, is permitted to "demand" discovery from the prosecution.  The information must be turned over to the defendant's Chester County DUI lawyer provided it is material to the instant case.  Any evidence that is favorable to the defendant and is material to either guilt or punishment is required to be sent.  In addition, any written confession or inculpatory statement and the prior criminal record of the defendant.  

You are not, unfortunately, entitled to discovery prior to the Preliminary Hearing.  The defendant is entitled to file a motion within 14 days after the arraignment for this paperwork and it must set forth the good faith reasons whey the material is important to the case.  In the case of a DUI, it would include any video of the stop, Field Sobriety Tests, and arrest, lab reports and results, police reports, photos, and statements from witnesses.    

At the Preliminary Hearing in Chester County, however, you should be provided a copy of the blood, breath, or urine test results as they must be entered at the Preliminary Hearing to sustain the Commonwealth's burden of proof.  Issues with a grand jury are typically handled through Rules 230 (Disclosure of Testimony Before Investigating Grand Jury) and 556.10 (Secrecy; Disclosure).  

Some discovery, however, is discretionary.  This includes names and addresses of eyewitnesses, some recorded or written statements, and photographs and or written materials (like journals).  The Commonwealth bears a continuing duty to disclose any and all additional discovery that comes to light.  

If discovery is not provided, the court may order such a party to permit discovery or inspection, may grant a continuance, may prohibit the Commonwealth from introducing the non-disclosed evidence or may enter additional orders that fit under the circumstances.  If your attorney does not have discovery and their repeated attempts fail, it may make sense to file a Motion to Compel to get the information.  

In covering each month the implied consent rule, I have tried to cover everything with respect to when a person can and should refuse and should not refuse a breath, blood, or urine test and the ramifications for the refusal.  

The Pennsylvania Supreme Court has held that an individual was not in actual physical control of the movement of a vehicle where he was found sleeping in the passenger's seat of a vehicle parked alongside of a highway where the vehicle's keys were in the ignition switch and the switch was in the "off" position, the engine was not running, and none of the vehicle's lights were illuminated.  This is the typical "asleep in the car" scenario that many a Chester County DUI lawyer encounter.  This is the case of Banner v. DOT, 558 Pa. 439 (Pa. 1999).  In this case, police officer found appellant sleeping in passenger seat of car parked along roadway. Although keys were in ignition, engine was not running and lights were not on. When officer tapped on car window, appellant awakened and reached for keys in ignition. No alcohol was found in car. After appellant failed field sobriety test, he was arrested for driving under influence of alcohol. Officer asked appellant to submit to chemical testing, but appellant refused. Court reversed order, holding that officer did not have reasonable grounds to believe that appellant was operating or in actual control of vehicle while under influence of alcohol. Evidence tending to establish appellant's control over vehicle's movement was too tenuous of connection to afford officer reasonable grounds to have believed that appellant was in actual physical control of movement of vehicle while intoxicated.

The definition and scope of "actual physical control" is broader and greater for "reasonable grounds" under 75 Pa. C.S. 1547 than the DUI statutes.  The public policy behind this basis is that the implied consent rule is a remedial piece of legislation to be broadly construed because driving is a privilege, not a right, and a DUI is a penal statute.  

Another lesson is that a police officer may have reasonable grounds to believe that more than one person was in actual physical control of the movement of a vehicle, despite the fact tht the second person may not have been sitting behind the vehicle's steering wheel.  A big case that is a good example is Department of Transp., Bureau of Driver Licensing v. Hoover.  In that case, after an officer stopped a vehicle which had swerved several times into the lane of oncoming traffic, he arrested the car's driver for driving under the influence. For safety reasons, the officer decided to transport both the driver and appellant to the station, and, on the way there, appellant acknowledged that he had grabbed the steering wheel of the car, causing it to swerve. Appellant was then arrested for driving under the influence, and, after he refused to submit to a blood alcohol test, appellee suspended his license on the grounds that he violated the implied consent law, Pa. Cons. Stat. § 1547(a). Appellant challenged the trial court's judgment affirming the suspension on the basis that he was not driving, operating, or in actual control of the movement of the car and thus the implied consent law was not applicable to him. In affirming the judgment, the court found that, in grabbing the steering wheel, appellant assumed physical control over the car's movement and thus came within the provision of the implied consent statute.

I already wrote about the general rules behind the ignition interlock in Chester County.  Now, I want to talk about additional rules and exceptions.  You will want to explore all options with your Chester County DUI lawyer to see if any apply.  

Remember -- pursuant to rule on ignition interlocks, you will have it in your car for one year upon the restoration of your license.  You will know if it is required of you by PennDOT’s Suspension Notice.  To get the ignition interlock, PennDOT is responsible for publishing a list of approved ignition interlock devices where you can get it installed. You can find the list of approved systems in the Pennsylvania Bulletin.  You will receive a restoration requirements letter 30 days prior to your restoration outlining how to get the ignition interlock.  Also, remember that you are required to install an ignition interlock on every vehicle you own.  

There is potential for an individual to get an economic hardship exemption from the ignition interlock that they may receive after a Chester County DUI.  As I discussed, it could cost $1000 or more.  The rule, under § 3805 (e), states, 

(a) may apply to the department for a hardship exemption to the requirement that an ignition interlock system must be installed in each of the person's motor vehicles. Where the department determines that the applicant establishes that such a requirement would result in undue financial hardship, the department may permit the applicant to install an ignition interlock system on only one of the applicant's motor vehicles.

Your income must be below 200% of the poverty level to qualify.  

There is also an employment exception.  You have the opportunity, under § 3805 (f), to be able to drive a vehicle owned by your boss or company without having an ignition interlock.  The purpose of this makes sense -- your prior Chester County DUI history should not financially impact your boss and/or their company.  

If an individual is asleep behind the wheel, can you beat their DUI?  These cases of a parked car/asleep at a wheel happen a lot in Chester County.  In addition, the Chester County DUI lawyer better know the cases to formulate a proper defense.  

The biggest element of a DUI offense under 75 Pa. C. S. A. section 3802 is the following: 1) that the defendant drove, operated, or was an actual physical control of the vehicle, and 2) while under the influence.

Earlier versions of the DUI law provided an interpretation of driving in a more narrower sense, although circumstantial evidence could still be used as sufficient reason to find that a vehicle had been in motion. Later on, a broader reading of what constitutes driving occurred as the law changed. 

A determination of actual physical control of the vehicle is based the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was additional evidence indicating that the defendant had driven the vehicle prior to the arrival of the police. Thus, an eyewitness is not necessarily required to establish that a defendant was driving, operating, or an actual physical control of the vehicle. Something more is required, however, to establish actual physical control than the defendant's presence behind the wheel with the motor running. There must be evidence to support an inference indicating that the vehicle had been driven by the defendant while he was intoxicated. Again it is important to note, that it had to have been operated while the person was actually driving and while during that time, they were drunk. 

The fact that the vehicle was not moving is not dispositive. One must be shown is that the operator was an actual physical control of either the machinery of the vehicle or of the management of the movement of the vehicle itself. For example, what is the trooper found the defendant slumped across the front seat of a car, sound asleep, with the motor running and the lights on, the evidence of actual physical control was sufficient. The evidence was sufficient to establish actual physical control in another case, when the defendant was slumped over the wheel when observed by the police officer, and 45 minutes later had a blood alcohol content of .263. It is not enough however to show that an individual who was just sitting any driver seat of a vehicle when the engine is not running to prove actual physical control.

I want to talk about a Supreme Court of Pennsylvania case called the Commonwealth versus Buchanan. This is a case where an individual was accused of statutory rape, corruption of a minor, and endangering the welfare of a child. The preliminary hearing was held in Luzerne County at the hearing the Commonwealth over the defense counsel's objection, presented the hearsay testimony of the investigating police officer. The investigating police officer recounted the alleged criminal incident as it was alleged to have been related to him by the victim who was a seven-year-old child. The victim, it is important to note, did not testify. 

The District Judge ruled that the Commonwealth had established a probable cause case.  Thereafter, the defendant filed a writ of habeas corpus in the Court of Common Pleas. At the hearing on the habeas corpus, the Court of Common Pleas found that the preliminary hearing was conducted properly. The defendant filed a petition for review in the Supreme Court which was transferred to the Superior Court. After the Superior Court denied the petition for review, the defendant petitioned the Supreme Court for allowance of appeal which was granted. 

In this particular case, the Supreme Court of Pennsylvania stated that fundamental due process requires that no adjudication be based solely on hearsay evidence. They also stated that at least a prima fascia case must be established against the person accused of the crime. In this particular case, the testimony of a witness as to what a third-party told him about an alleged criminal act is clearly inadmissible hearsay. The fundamental idea behind this decision is that a lawyers cross examination of a witness may expose fatal weaknesses in the state's case and may lead the district judge to refuse to bind the case over. 

In addition, the preliminary hearing against a witness is a vital impeachment tool for use in cross-examination of the states witness at the trial. Finally, it allows a defense attorney to preserve testimony favorable to the accused. All of these issues related to whether the individual who has a preliminary hearing must and can confront a witness who is accusing them of a crime. Clearly in this case, the right of a defendant to confront a witness who is accusing them of the crime has been preserved. Please note, there are exceptions to this rule where the accused has no right to a preliminary hearing. These issues include 1) The accused is a fugitive from justice, 2) there is a presentment of an investigating grand jury directly to an indicting grand jury, and 3) the indicting grand jury makes presentment based on personal knowledge of the jurors.

I previously wrote about Implied Consent and reasonable grounds, but want to expound upon it further.  

One of the rules that developed out of case law that your Chester County DUI lawyer should know is that a police officer does not have to possess reasonable grounds at the time of the initial traffic stop of the driver or when the officer arrests the driver for DUI or an ignition interlock violation.  It is sufficient that the officer develops the necessary reasonable grounds at any time during the officer's encounter with the driver.  This was the case of Lesa Nornhold v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing.  In this case, the Department argued that the trial court erred in finding that the licensee was placed under arrest in her home. The appellate court found that the trooper's act of physically restraining the licensee from going upstairs indicated an intention to subject the licensee to his actual control. In addition, because the legality of an arrest was immaterial in a civil license suspension proceeding, the legality of the licensee's underlying arrest, including the timing of the trooper's accompanying request to submit to chemical testing, was irrelevant to determining the propriety of the license suspension under the implied consent law. 

It was sufficient that the trooper developed reasonable grounds to believe the licensee had committed a DUI offense at any point during their encounter. The 75 Pa. Cons. Stat. § 1547(b)(1) requirements were satisfied because the trooper had the requisite reasonable grounds to request that the licensee submit to a breathalyzer test where the trooper observed several indicia of intoxication: the licensee's erratic driving, her unsteady gait, mood swings, bloodshot eyes and an odor of alcohol about her person.

Control of physical movement of a vehicle is also an issue.  A driver does not have to be actually driving or operating a vehicle in order for a police officer to posses reasonable grounds to require the driver to submit to chemical testing.  The officer may posses the necessary reasonable grounds where the officer believes that the driver was in actual physical control of the movement of the vehicle.  This is the case of COMMONWEALTH Of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING v. Garry E. PAIGE, where a police officer found appellant motorist slumped over the steering wheel of his vehicle with the key in the ignition and the parking lights on. The police officer knocked on the window numerous times before he was able to wake appellant. Appellant admitted that he had been drinking, emitted a strong odor of alcohol, was argumentative, refused field sobriety tests, and even refused a taxi ride home. Appellee Department of Transportation, Bureau of Driver Licensing suspended appellant's driving privilege for one year due to his failure to submit to chemical testing pursuant to Implied Consent Law.

CDL & DUI

I have spoken about the concern everyone should have if you have a Chester County DUI and a CDL.  A civil consequence is the disqualification of a Commercial Driver's License.  § 1611 of the Vehicle Code states, "Upon receipt of a report of conviction, the department shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle or school vehicle for a period of one year for the first violation."  A Chester County DUI is included into the code as a qualifying for an offense under this code.  

Please note -- you must be aware that having a CDL at the time of the conviction is important.  It may be advisable to get the CDL out of your name and change to a regular operational license, as long as you can and it doesn't impact your occupation.  

Equally important, as your Chester County DUI lawyer should tell you, is that there is no requirement that the DUI occurred while a person was driving as commercial motor vehicle.  So, even if you are driving home on a weekend after a party, you will face a 1-year license suspension regardless of the purpose of your driving if you have a CDL.  Even if you get ARD, you will not have any chance to lessen the impact.  

CDL & Refusal in Chester

If you are facing a second DUI, you are facing a lifetime suspension of your CDL.  So, if you are twice convicted of a DUI or you refused a chemical test twice, your commercial driving privilege is at risk of being disqualifed for life.  It is important to note that the CDL holder must have been convcited of two or more offenses set forth in 75 Pa.C.S. 1611(a) that have been committed after the effective date of Chapter 16 of the Vehicle Code, which is November 1, 1990.  

A pickle of a case happens when there is a DUI conviction combined with a chemical test refusal reported under 75 Pa.C.S. 1613.  It is necessary that the conviction and refusal arise from "two or more separate and distinct incidents."  Thus, if a CDL holder is convicted of DUI and refuses to submit to chemical testing as required under the law with respect to the DUI offense, those two occurrences do not mandate a lifetime CDL disaqualification as they do not arise from "separate and distinct" incidents.  This is a huge distinction that your lawyer in Chester County better know.  

The vehicle code for Chester County only applies to vehicles on highways and trafficways.  In some of my cases as a Chester County DUI lawyer, where the person was driving and whether it was a highway or trafficway became critical to beating the case. A highway is defined as: "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of these particular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical Park".  This can be found in Commonwealth v. Brown from 1993.  

 A trafficway is defined as: "the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purpose of the hickey alert travel as a matter of right or custom." See Commonwealth v. Predmore from 1985 for more details.  

Of the two definitions, only that of "trafficway" has generated any appellate opinions under the DUI law, and those opinions are not necessarily clear as to what is sufficiently open to the public to constitute a trafficway. 

In one case, the court held that a dirt track through a field was a Trafficway because the field was open to the public and occasionally used by the public for vehicular traffic. In another case, the court concluded that a private drive into a trailer park was not a trafficway when the testimony described the drive is a private road with only one entrance and exit through which access and egress could be obtained, and the road was a dead-end. The court did not view such a Rotas customarily open to the public for the purposes of vehicle or traffic. A condominium parking lot, not open to the public, is not a trafficway or a highway. But, a parking lot used by the public is a trafficway. When it is not clear that a particular parking lot is open to the public, the Commonwealth must establish that it is. Finally, a parking garage constitutes a trafficway, as does an alleyway leading to a government building.