If a person in Chester County receives a DUI, they may be facing an ignition interlock.  This is the machine installed in vehicles that measures a person's BAC.  If alcohol is detected on the machine, they are incapable of starting the vehicle.  The ignition interlock is controlled by 75 Pa. Cons. Stat. § 3805, which states that an interlock ignition may be required if, 

... a person violates section 3802 (relating to driving under influence of alcohol or controlled substance) and, within the past ten years, has a prior offense as defined in section 3806(a) (relating to prior offenses) or has had their operating privileges suspended pursuant to section 1547(b.1) (relating to chemical testing to determine amount of alcohol or controlled substance) or 3808(c) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and the person seeks a restoration of operating privileges  

So, what is a prior offense?  It is stated in 3806, 

the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1)  an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2)  an offense under former section 3731;

(3)  an offense substantially similar to an offense under paragraph (1) or (2)

75 Pa.C.S. § 3732 is the statute for Homicide by Vehicle in Pennsylvania and Chester County and most of these are handled by a Chester County DUI lawyer.   They are tragic all around.  No one wins in these cases and the stakes are high.  The statute states, "Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death."  

There are a few things you should know -- Concurrent sentences for involuntary manslaughter, pursuant to 18 Pa. Cons. Stat. § 2504, and homicide by vehicle, pursuant to 75 Pa. Cons. Stat. § 3732, could not coexist under the double jeopardy prohibition when relaxed homicide by vehicle crime elements were established by stringent involuntary manslaughter counterparts.  Vehicular homicide statute does not violate equal protection because the statute's clear purpose is to punish criminal conduct and to make punishable conduct that is more blameworthy than civil negligence yet which is not encompassed within involuntary manslaughter under the Pennsylvania Crimes Code with its requirement for acting in a reckless or grossly negligent manner while causing the death of another.  

Racing on highways under 75 Pa. Cons. Stat. § 3367 is not a lesser included offense of homicide by vehicle, 75 Pa. Cons. Stat. § 3732, as both crimes require proof of at least one element that the other does not; therefore, sentences for these crimes do not merge.  Defendant, while intoxicated, who drove his auto the wrong way down an exit ramp and travelled north on the southbound lanes of the interstate, striking and killing an occupant of an oncoming vehicle, was properly convicted of homicide by vehicle under 75 Pa. Cons. Stat. § 3732 as the legislature's enactment was a constitutional exercise of its lawmaking authority even though it borrowed from tort law to impose liability because the law bore a rational relationship to the legislature's goal of reducing highway fatalities.

Trial court did not err in finding defendant violated the pre-amendment version of 75 Pa. Cons. Stat. § 3732 because even though criminal negligence was no longer sufficient for conviction, recklessness remained sufficient, and a reasonable jury could have found that defendant acted recklessly where defendant weaved all over the roadway, repeatedly swerved into oncoming traffic an estimated 10-20 times, and did not hit the brakes or even attempt to avoid hitting the victim's car, which undisputedly resulted in the victim's death.

Guidelines for DUI Checkpoint

A lot of Chester County DUI defendants have questions about a sobriety checkpoint. The standard free legal checkpoint in Pennsylvania was addressed in, Commonwealth v. Blouse. This case, from 1992, was where the Supreme Court suggested guidelines to ensure the constitutionality of a police conducted roadblock.  The court stated 

1)  the very decision totally drunk driver roadblock as well as the decision as to its time and place should be matters reserved for prior administrative approval, removing police discretion;

2)  the route and time selected should be one, faced a local experience, that is likely to be traveled by intoxicated drivers; and

3)  the decision of which vehicles to stop should be in accordance with objective standards prefixed by administrative decision. 

But, the rule does not stop there.  A Chester County DUI lawyer should be aware of the additional case law that creates nuances and additional sharpening of the lines.  The court further held that "substantial compliance with the guidelines is all that is required to reduce the intrusiveness of the search to a constitutionally excepted level." In Commonwealth v. Worthy from 2008, the Supreme Court held that the guidelines were followed when officers in the field stopped all vehicles, but temporarily suspended the checkpoint and let traffic pass when it became congested, and there was no unreasonable delay. 

Additional Cases on Checkpoints

The Superior Court has held that there is no requirement that the motorist be afforded an opportunity to avoid the checkpoint by advanced Publis city; warning signs in the road are enough. This was from 1997 in a case called Commonwealth v. Pacek. In 2001, Commonwealth v. Yastrop, reaffirmed Blouse by a four – three margin that sobriety checkpoints are constitutional in Pennsylvania. This case has a good review of the law. 

Very importantly, in 2006, a panel of the Superior Court upheld seatbelt and inspection compliance checkpoints, even though seatbelt violations are only a "secondary" offense. In Commonwealth v. Kendall, of 1994, the Superior Court upheld a DUI conviction against allegations that "even though the state police were to stop all vehicles that enter the checkpoint, they did not follow their prefixed standard and were allowed to exercise their own discretion" where preliminary procedures were followed in the evidence that showed all vehicles, except the state police cruiser, were actually stopped during the operation. In Commonwealth v. Yashinski, from 1998, where a trooper was using a Turnpike toll booth as a defacto checkpoint (what a diabolical move), the stop was ruled to be illegal. 

In 1999, another case noted that a driver going toward a checkpoint and making an illegal U-turn to avoid it and was subsequently pursued by the police and arrested for DUI, the court ruled that no reasonable ground existed to believe a violation occurred. Avoidance of a checkpoint alone is not sufficient. Checkpoint site selection was valid where there were 21 DUI arrests on a 1 mile stretch of roadway in Franklin County over 26-month period. Thus in this case from 2012, the specific statistics warranted a checkpoint. Finally, in 1997, and Commonwealth v. Blee, the checkpoint was invalidated where there is insufficient testimony concerning why a particular checkpoint location was chosen. 

You face the potential to have a Drug Recognition Expert evaluate you after you are arrested for a DUI.  The supposition is that this expert, who is a regular Chester County cop or PA State Trooper who takes a class to get certified (without any medical training), It is used to detect if a person is under the influence of drugs.  

It is a growing prospect from law enforcement to detect the ever-growing increase of DUI's by drugs (both illegal and prescription) which is driving the need for a Chester County DUI lawyer.  The whole idea started with the less than savory LAPD.  There is a protocol for the DRE, which includes the 12 steps of:

1. Breath Alcohol Test: The arresting officer reviews the subject’s breath alcohol concentration (BrAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BrAC. If so, the officer will not normally call a DRE. If the impairment is not explained by the BrAC, the officer requests a DRE evaluation.
2. Interview of the Arresting Officer
3. Preliminary Examination and First Pulse
4. Eye Examination
5. Divided Attention Psychophysical Tests
6. Vital Signs and Second Pulse
7. Dark Room Examinations
8. Examination for Muscle Tone
9. Check for Injection Sites and Third Pulse
10. Subject’s Statements and Other Observations
11. Analysis and Opinions of the Evaluator
12. Toxicological Examination : After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis

I have so many problems with this seemingly medical analysis, performed by a person with no medical background and no relationship with a patient/defendant.  For example, the DRE must test for muscle development, "The DRE examines the subject’s skeletal muscle tone. Certain categories of drugs may cause the muscles to become rigid. Other categories may cause the muscles to become very loose and flaccid."  This is insane.  They (the evaluator) have no idea what a person's muscle tone was before their stop.  They are taking a stab in the dark and hoping to guess what a person is/is not on.  Of course, being part of law enforcement, they are more than likely to conclude that a person is driving under the influence because they want to book another crime.  

After the exam, the officer, frankly, guesses what they think the person is on.  It is highly unreliable and certainly not a respectable examination.  It is, as I have said, voodoo science.  

Sometimes, even if a person knows they are drunk, they have to drive.  This defense is known as "necessity" and also known as justification (but with a different standard).  It is very limited and your Chester County DUI lawyer better know the in's and out's of this potential defense and use it if necessary to help keep you out of jail and keep your license.  

The elements of a successful justification defense have been restated as follows: (1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative, (2) that the actor could reasonably expect that the actor's 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. 

Necessity may be raised as a defense and excuse liability where the conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if: (1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; (2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (3) a legislative purpose to exclude that justification claimed or does not otherwise plainly appear.

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. 

In Commonwealth v. Manera, 2003 PA Super 215 (Pa. Super. Ct. 2003), the the trial court found that defendant's conduct would have supported a justification defense, except that this statutory defense was unavailable for prosecutions under 75 Pa. Cons. Stat. Ann. § 1543(b). The appellate court ruled that under 18 Pa. Cons. Stat. Ann. § 502, necessity afforded a general justification for conduct that otherwise would have been an offense. The justification offense was generally applicable to all offenses, absent clear legislative intent to the contrary. There was no indication that the legislature intended to abrogate the justification defense under 75 Pa. Cons. Stat. Ann. § 1543(b). The legislature could have expressly abrogated the justification defense, but did not do so.  This case opened up the defense to many crimes, including DUI.  

In Commonwealth v. Billings, 2002 PA Super 40, P5 (Pa. Super. Ct. 2002), the defendant was convicted of a DUI.  The court found that the "no alternative" portion of the defense was not met, 

Appellant testified that he was in the car when his companion hit a small animal and became too upset to drive. Even if Appellant faced imminent harm by oncoming traffic, he would still not be justified in driving the car home. He would, at most, be justified, out of necessity, in parking the car on the side of the road so as not to cause an accident. Appellant had other reasonable options to driving the vehicle while intoxicated. For example, he could have activated the emergency flashers and given his companion an opportunity to regain her composure. Clearly, the defense of necessity was not met.

A note about the Confrontation Clause in criminal cases and Chester County DUI cases. This important clause applies to the Commonwealth of Pennsylvania through its incorporation in the due process clause of the 14th amendment. In this particular case, in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. It drives a big issue in Chester County DUI cases, where a person who alleges you were driving (and then no police officer observes the driving) must be cross examined by a Chester County DUI lawyer.  

An important Supreme Court case is noticed Crawford v. Washington. It states that the admissibility of out of court statements under the Confrontation Clause isn't applicable to all criminal proceedings. Prior case law found that the statement was considered to have sufficient indicia of reliability if it either fell within a firmly rooted hearsay exception or for a particular rise to guarantee of trustworthiness. Crawford however dramatically alters the interplay between the confrontation clause and the law of hearsay. 

In Crawford, the United States Supreme Court ruled that if a hearsay statement was testimonial nature, it could not be introduced at trial, in the absence of the declarant, unless the defendant had a previous chance to cross-examine the declarant. In this particular case, the previous chance to cross-examine the declarant could have occurred at a preliminary hearing. Crawford involved a tape recorded statement given by defendants wife to police describing the stabbing with which defendant was charged. The defendants wife invoked the state marital privilege, which afforded her the opportunity to not have to testify against her spouse during the proceeding. The wife statement however was admitted at trial over objection because the trial court determined that the statement had a guarantee of trustworthiness. 

The Supreme Court in Crawford would change the legal landscape and stated that hearsay statements violate the accused rights under the confrontation clause. It stated that Crawford departed from prior confrontation clause jurisprudence by raising the bar on the admission of out-of-court testimonial statements made by unavailable declarants when there was no prior opportunity for cross examination. The Crawford court reaffirmed the importance of the right of confrontation and created a drastic distinction between testimonial and non-testimonial statements for confrontation clause purposes. Where testimonial statements are involved, the Court determined that the framers of the Constitution meant to leave the Sixth Amendmen'ts protection to  issues relating to the rules of evidence  more on the side of lack of reliability then on reliability. There is however an exception of admission for non-testimonial hearsay. In this case, where nontestimonial hearsay is an issue, it is wholly consistent with the framers of the Constitution's design for the state to have flexibility in the development of their case. So the fundamental question question remains, which rule applies with hearsay confrontation. In this particular case, where testimonial statements are at issue, the only indication of reliability sufficient to satisfy constitutional demands is the one the constitution actually dictated which is confrontation.

Implied Consent for Chester County DUI

We previously talked about the rule behind refusing a DUI chemical test in Chester County.  As discussed, an officer or Pennsylvania State trooper must have "reasonable grounds" to request the blood, breath, or urine.  In order for police to have the authority  to request a driver to submit to a chemical test of blood, breath, or urine, they must believe that the person was 1) driving or 2) operating or 3) in actual physical control of the movement of the vehicle and that the person was in violation of either 1) Driving under suspension (1543(b)) DUI related, or 2) DUI (3802), or 3) illegally operating a vehicle not equipped with ignition interlock (3808(a)(2)).  

"Reasonable grounds" is a much lower standard than the criminal concept of "probable cause".  In fact, the Pennsylvania Supreme Court and Superior Courts have consistently recognized that "reasonable grounds" under the Implied Consent Law is a lesser standard than "probable cause" (see McKinley v. Department of Transportation from 1999).  They don't need the proof for a criminal prosecution to effect a suspension or test under implied consent.  Remember -- Driving is a privilege, not a right as your Chester County DUI lawyer has probably advised.  

Cases on Reasonable Grounds

A very important case in this line of reasoning is in DOT v Dreisbach from 1976, which states that reasonable grounds is determined on a case-by-case basis on whether evidence is sufficient to support such a claim.  The court notes that the police office need no be correct in his belief that the motorist be driving while intoxicated, but that "the only valid inquiry on this issue at the de novo hearing is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle and under the influence of intoxicating liquor."  

While the implied consent law has been amended a lot since Dreisbach, the basis for "reasonable grounds" has effectively stayed the same.  

Another potential defense in a Chester County DUI is involuntary intoxication. Essentially, if you are in a position where you feel you were involuntarily intoxicated, you must let your Chester County DUI lawyer know immediately.  

Pennsylvania, like many other jurisdictions, either by statute or caselaw, specifically limits the availability of a voluntary intoxication defense but does not specify whether an involuntary intoxication defense is available. 18 Pa. Cons. Stat. Ann. § 308. The issue of whether involuntary intoxication is a defense to a charge of driving under the influence (DUI) is unclear in Pennsylvania. Moreover, in the context of a DUI prosecution, assuming the defense applies, a defendant has the burden of proving the affirmative defense of involuntary intoxication by a preponderance of the evidence. 

The Chester County defendant has the burden of proving the affirmative defense of involuntary intoxication by a preponderance of the evidence.  

Bear in mind, to prove DUI, 

To prove a violation of 75 Pa. Cons. Stat. Ann. § 3731(a)(1), the Commonwealth of Pennsylvania must show: (1) that the defendant was the operator of a motor vehicle; and (2) that while operating the vehicle, the defendant was under the influence of alcohol to such a degree as to render him or her incapable of safe driving. To establish the second element, it must be shown that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree that rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving.

In a case where the defense did not sustain their burden of proving the affirmative defense of involuntary intoxication was in Commonwealth v. Smith, 2003 PA Super 301 (Pa. Super. Ct. 2003).  In this case, the defendant stated at her trial that she had consumed alcohol while wearing a prescribed "duragesic" patch for pain, and she testified she did not realize that the patch would heighten the effects of alcohol. She argued on appeal from her conviction that she had established the affirmative defense of "involuntary intoxication," thereby negating the state of mind necessary to support a conviction of DUI. The court disagreed and affirmed her conviction. 

Reasonable Suspicion in a Chester County DUI

A police officer in a Chester County must have reasonable suspicion to stop a car.  Remember that reasonable suspicion is specific and articulable facts, taken together with rational inferences from those facts, that would lead a reasonable person to believe that criminal activity is afoot.  The facts are taken under a totality of the circumstances test.  

There are a host of cases that involve reasonable suspicion and the ability to stop a vehicle based upon it.  In Commonwealth v. Farnan from 2012, it was ruled by the Superior Court of Pennsylvania that the stop of the vehicle based on information regarding a suspended license was proper, even though the information was provided approximately 30 days previously.  In Commonwealth v. Shabazz, the Superior Court further ruled that a stop was proper for a violation of 4524(c).  Recall that 4524(c) states, "No person shall drive any motor vehicle with any object or material hung from the inside rearview mirror or otherwise hung, placed or attached in such a position as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard."  In the present case, the officer testified that large foam dice and air fresheners (approximately 4 of them) were hanging from the rearview mirror which interfered with the driver's vision in terms of "if he had to turn or if he had to go straight."  

Cases Finding No Reasonable Suspicion

But, in Commonwealth v. Holmes from 2011, the court ruled that no reasonable suspicion existed for stopping for a violation pursuant to 4524(c) because, despite the officer's testimony that objects obstructed the view of the driver, no evidence was presented to the size or description of the objects and/or how they impaired the driver's view.  This is a case that could have been won by a Chester County DUI lawyer.  

Another case that outlines 4524(c) is Commonwealth v. Anthony from a Superior Court opinion of 2010.  The officer in this case pulled a person over for three air fresheners hanging from the rearview mirror.  The court ruled that no reasonable suspicion existed to perform a traffic stop where the basis had no showing that the driver's vision was materially obstructed, obscured, or impaired.  Likewise, in Commonwealth v. Drayton from Lehigh County in 2010, there was an improper traffic stop where a 2"x3" air freshener was alleged to have obstructed or impaired the driver's vision.  The court ruled that there was no showing that this impairment or obstruction occurred.  

The 2-hour rule is an element of all DUI's, except for DUI's involving drugs.  The DUI statute states for each of the 3 levels of alcohol DUI that the level must be measured "within two hours after the individual has driven".  Thus, it is a critical element of a Chester County DUI that involves alcohol.  

The key factor in many cases is when the individual drove.  Also, as discussed previously in the 2-hour post, if the test is taken after 2 hours, the Commonwealth must show good faith as to why they failed to have the test taken in that time.  

What if, however, you come to your Chester County DUI lawyer and explain that you drove, parked, and were later arrested?  There is potential to beat the case based upon the fact that alcohol could have been consumed after you parked your car.  In Commonwealth V. Wright, for example, the Beaver County Court ruled on a case that involved something similar.  In that case, police responded to a crash at 12:20am.  The officer at the scene observed fresh blood.  The police traced the vehicle to the defendant's home where more blood was located inside and outside the home.  The Defendant was located at the house around 1:00am.  He had a cut on his foot.  The police transported the defendant to the hospital via ambulance where his BAC was determined to be .167%.  The case was dismissed as the Commonwealth was unable to show when the vehicle was operated or what defendant's ability to operate was at the time of driving.