Chester County DUI Blog

A candidate in Texas is causing a stir with his reaction to the publishing of his mugshot from 1977.  It is unclear how is case was resolved, but the charges were eventually dismissed against him after the initial charges were filed for his alleged possession of valium.  

One of the frustrating things a Chester County DUI lawyer encounters is when the newspapers publish in the police blotter arrests.  Gossip starts, people are embarrassed, and lives are disrupted and possibly temporarily ruined.  Federal courts have stated that publishing mugshots is not a violation of privacy rights.  There's even an entire industry making money off of mugshots and it can ruin your life.      

It is messed up, if you ask me.  You have a person who has not even been found guilty of a damn thing, but they are already embarrassed.  This is America where a person is innocent until proven guilty.  If a person gets the case dismissed, either by fighting it or being accepted into ARD, they should not have to be haunted by mugshots for the rest of their life.  

You have heard all sorts of suggestions about whether you should or should not submit to chemical testing (breath or blood or urine) for your Chester County DUI.  75 Pa.C.S. § 1547 outlines the chemical testing to determine amount of alcohol or controlled substance and the refusal/implied consent rules.  Essentially, every person who drives/operates a vehicle in Pennsylvania, including Chester County, is deemed to have consented to providing a sample of blood, breath, or urine upon the request of a police officer or State Trooper.  The police officer or trooper must have "reasonable grounds" to believe that the person has driven, operated, or was in actual physical control of the movement of a vehicle while they were either in violation of a 3802 violation (DUI), 1543(b) violation -- a driving under suspension for DUI purposes, or is illegally operating a vehicle without the ignition interlock device.  

A person does retain a statutory right to revoke the consent and refuse the chemical testing.  They cannot be forced to submit the testing.  The officer must, if a person refuses, inform them that the person's operating privilege will be suspended upon refusal to submit to chemical testing and if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).  The suspension will be one year for the first refusal or 18 months for a second or subsequent refusal.  It is sometimes possible for your Chester County DUI lawyer to try and get the suspension/refusal letter rescinded by the officer/trooper.  

Remember -- driving is a privilege, not a right.  Thus, the Implied Consent law furthers the quick purpose of gathering evidence of intoxication/influence without necessary and time-consuming search warrants.  

The code also states that the results of the tests shall be admissible as evidence in prosecution.  If a person is placed into ARD or is found/pleads guilty to DUI, the cost of the testing and analysis shall be paid by the defendant.  

A person who has been convicted of driving under the influence, pursuant to 75 Pa.C.S. Section 3802, not only faces the direct criminal penalties one normally associates with a criminal conviction (i.e. a monetary fine, imprisonment or probation), but also faces a lot of collateral civil sanctions.  Some of these consequences happen immediately and others take some time to come to fruition.  A Chester County DUI lawyer must explain to their clients who are charged with a Chester County DUI that there are civil penalties related to the DUI, even if they are accepted into an ARD program.  

These potential civil penalties include, but are not limited to:  1)  Suspension or revocation of your license, 2) Disqualification of the person's commercial driver's license, 3) Suspension of the person's operating privileges as a consequence of a chemical test refusal, 4) Disqualification of the person's commercial driver's license as a consequence of a chemical test refusal, 5) Being subject to the ignition interlock restriction upon restoration of the operating privilege, 6) Higher premiums for motor vehicle insurance; and 7) Professional and employment consequences of being convicted of a DUI.  

If, for example, you don't see the potential for professional and employment impacts, look no further than Zelno v. Lincoln Intermediate Unit No. 12 Bd. of Dirs., 786 A.2d 1022 (Pa. Commw. Ct. 2001).  In this case, a teacher (who was tenured!) was dismessed for "immorality and intemperance" following the teacher's three drunk driving convictions.  The court ruled that it was "willful misconduct" and made the teacher ineligible for unemployment compensation benefits.  

In any Chester County DUI, an initial concern for any Chester County DUI lawyer is what the individual was driving, how they were driving, band the issues behind the alleged traffic stop. Other concerns include the license type the individual has and what, if any, potential defenses can be developed.  But, what is a "vehicle"?

Under the DUI code in Pennsylvania, an individual must be operating or be in actual physical control of a vehicle. The Vehicle Code of Pennsylvania defines a vehicle as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively under rails or tracks. The term does not include a self propelled wheelchair or an electrical mobility device operated by designed for the exclusive use of a person with a mobility-related disability."  This is covered under 75 Pa.C.S.A. section 102. While no case law exists addressing the scope of the term vehicle under section 3731, the cases addressing the meaning of the term for the purposes of other sections of the Vehicle Code indicate that its scope is broad. For example, there are cases of that indicate that a bicycle is a vehicle, an ATV is a vehicle, a snowmobile is a vehicle, and a dune buggy is a vehicle.  

As these examples point out, it is more than likely that any piece of equipment that can propel itself (not necessarily just under electric or motorized power) will be defined as a vehicle.  

I previously blogged about breath testing calibration in Chester County DUI's.  An important case regarding this evidence is Commonwealth v. Mongiovi, 360 Pa. Super. 590.  

The court ruled that that the nature of the charge against the defendant required the admission of technical evidence, that the jury had before it all the facts, including the breathalyzer results and the possible variance, and it was charged as to the necessity of finding defendant guilty "beyond a reasonable doubt."  What this means is that the jury or judge needs the breath test and supporting documentation to conclude that the blood alcohol was beyond a particular level, establishing the standard of "beyond a reasonable doubt".  

As the court stated, "The nature of the charge against appellant requires the admission of technical evidence. We see no other way for a jury to decide whether a defendant has reached a blood alcohol level of .10%."  

The case continues to discuss how the jury should decide the "variance" which could imply a lower BAC.  It is an issue that the jury must weigh in deciding their verdict when being defended by a Chester County DUI lawyer.   

It also highlights that the breath testing equipment, pursuant to 67 Pa. Code § 77.25(a), where the equipment must be inspected within 30 days prior to using the breath test equipment.  

If you are given a breath test pursuant to your Chester County DUI, your Chester County DUI lawyer should be requesting discovery on the case.  As part of the discovery, your attorney should receive the "Breathtesting Device Calibration" certificate.  You will review the accuracy as outlined in 75 Pa. C.S. 1547 (c).  The calibration test will provide the test results over a series of tests, including the "constant" variable of .05%, .10%, and .15%.  The machine will run a test on these constants and the average deviation will result.  You will also get a print out of the results.  In addition, you will receive a "Certificate of Analysis" of the solution used on the "constant" simulation.  This is normally provided by Guth Laboratories, Inc. and will include the Lot Number, and the percent of ethyl alcohol by w/vol as analyzed by gas chromatography.