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McMahon, Lentz & Thompson – Driving Under the Influence (DUI)

There is no question that Driving Under the Influence (DUI) in Pennsylvania is a serious violation of the Pennsylvania Vehicle Code with potentially severe criminal penalties and a license suspension.

Pennsylvania DUI laws prohibit driving or being in “actual physical control” of a vehicle while under the influence of alcohol that renders him/her incapable of safe driving, or with any amount of an illegal drug, like marijuana, in his or her system.

A person who violates the PA DUI law is guilty of a misdemeanor for a first offense. Subsequent DUI offenses are treated more severely, and a third DUI may, in some instances, be a felony of the third degree.

Pennsylvania DUI – Drugs

In Pennsylvania, a person is guilty of DUI if there is any amount of an illegal drug detected in his or her system. That means a person who last used marijuana one week ago, may be guilty of a DUI today based solely on the lingering presence of THC in his or her blood. And it gets worse.

Under the above scenario, the person would be charged with the highest tier (most severe) DUI and subject to the same penalties that apply to a person who had a blood alcohol content (BAC) level of .16% or higher. Under PA DUI laws, all offenses which involve drugs are subject to the most severe DUI penalties.

Pennsylvania DUI – Alcohol

PA DUI law deems drivers under the influence of alcohol if the person is rendered “incapable of safely driving” as a result of alcohol consumption, or if the person has a blood alcohol content (BAC) level above a .08.

Unlike drug related DUIs, alcohol offenses are divided into three tiers based upon their severity as determined by the person’s BAC. These tiers are as follows:

Tier 1: General Impairment – Incapable of Safely Driving (no BAC); or BAC greater than .08%, but less than .10%.

Tier 2: BAC greater than .10 %, but less than .16%.

Tier 3: BAC .16% or higher.

Pennsylvania Accelerated Disposition Program

An individual charged with a first-offense DUI may be eligible for the A.R.D. Program which is requested by your criminal defense attorney through a formal application at or after the preliminary hearing stage. This program is an excellent alternative outcome for persons charged with “Driving While Imbibing” for the following reasons:

  1. No jail time
  2. No criminal conviction
  3. Minimal license suspension
  4. Expungement of record

There are certain prerequisites for admissibility into the A.R.D. Program which generally must be met in order for a person accused of DUI to take advantage of the A.R.D. program.

These prerequisites include:

  1. No accident involving serious injuries
  2. No prior criminal convictions
  3. No prior A.R.D. dispositions within ten years
  4. No other “aggravating circumstances”

A great advantage of the A.R.D. Program is that the Driving Under the Influence arrest and all police and court records related can be expunged and destroyed upon the filing by defense counsel and Court’s granting of a Motion to Expunge.

In summary, statistically the vast majority of persons arrested by the police in the Commonwealth of Pennsylvania are arrested for the offense of Driving Under the Influence. Based on the serious penalties for this offense and license suspension, anyone charged with Driving After Imbibing should retain experienced and aggressive legal counsel.

The track record of McMahon, Lentz & Thompson in representing clients charged with this serious offense speaks for itself, whether in vigorously defending the client in a trial or negotiating an A.R.D. disposition or other favorable resolution.

PA DUI Law Updates

Field sobriety tests are commonly utilized by police officers in DUI Investigations.

These physical coordination and agility tests are not objective, but rather inherently subjective based on the particular police officer investigating the suspect. Moreover, the suspect’s level of physical athleticism, prior medical issues and physical condition of tests’situs is not factored into the test performance. The tests are simply pass or fail subject to the police officer’s discretion.

Nonetheless, field sobriety tests are heavily relied upon by police and prosecutors in DUI prosecutions despite their unreliability and subjective elements. A vigorous DUI defense must aggressively focusing on neutralizing the impact of police officer testimony concerning field sobriety tests and conclusions.

Chemical Testing Evidence

In the state of Pennsylvania, police investigating DUI cases can obtain Blood Alcohol Content (BAC) evidence through either a drawn blood sample or breathalyzer test. A blood test result is generally more accurate and less subject to police error than breathalyzer testing. Breathalyzer test results are not admissible in court UNLESS the police can establish the following foundation of admissibility:

  1. The breathalyzer machine must be an approved testing device under the Pennsylvania Bulletin;
  2. The breathalyzer device must have been properly calibrated within one year of the administration of the test;
  3. The breathalyzer device must have been tested for accuracy with one month of the administraton of the test;
  4. The operator of the breathalyzer device must be properly certified to administer the testing utilizing the particular device;
  5. The suspect must be continually observed for a period of at least twenty minutes not eat or drink anything prior to testing.

Our attorneys have successfully achieved exclusion of BAC chemical test results in DUI cases, where the police have failed to properly fulfill these strict requirements for the legal admissibility this evidence.

The information contained herein should not be used as a substitute for personal legal advice. You should contact the Law Offices of McMahon, Lentz & Thompson to schedule a Consultation with an attorney who will speak to you regarding your specific situation.
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"Common Questions About Drunk Driving"

1What signs do police look for when seeking out intoxicated drivers on the roadways?
There are a variety of signs that the police look for in identifying possible intoxicated drivers. These include evidence of erratic driving such as not maintaining a proper lane of travel, swerving within the lane, disobeying traffic control devices such as stop signs, driving at an excessively low speed, as well as speeding. Police are even more focused on these types of indicators during the late evening and early morning hours when intoxicated drivers are more likely to be out on the road. The police also have the ability to follow a vehicle and check whether the operator has prior vehicle violations through a quick computer check.
2If a police officer pulls you over and asks if you have been drinking, what should I say?
Generally the police officer can tell if you have consumed alcoholic beverages. Therefore, it is best to be cooperative with the officer in all respects. If you have eaten a meal and/or have not consumed any alcoholic beverage for some time, you should inform the officer of that fact.
3What physical symptoms will an officer look for after he pulls me over?
The police officer will be observing your general demeanor, ability to answer questions, manner of speech, as well as any other relevant signs such as blood shot eyes, inability to locate license and registration, or abnormal behavior.
4 Do I have a right to refuse to take a field sobriety test?
Yes. There is no penalty for refusing to take field sobriety tests unlike a refusal to take a chemical test upon request. However, the police officer will certainly view your refusal as evidence of your intoxication, which will be a factor in his or her decision to make an arrest. It should be noted that the lack of field sobriety test results would be an important piece of evidence missing in the Commonwealth’s subsequent DUI prosecution if an arrest is made.
5Do I have a right to an attorney while taking a field sobriety test?
No. There is no right to speak to an attorney prior to deciding whether or not to take field sobriety tests.
6Do I have a right to refuse to take a chemical test?
Yes, however, under the implied consent law in the State of Pennsylvania you will lose your license for a period of one year if you refuse to take a chemical test where the officer has reasonable cause to believe you were driving while under the influence. It should be noted that the lack of a chemical test result would be an important piece of evidence missing in the Commonwealth’s subsequent DUI prosecution if an arrest is made.
7Can I choose which chemical test I wish to take?
No. The police officer has the absolute discretion regarding which test he or she wishes to administer to an operator suspected to be driving under the influence of alcohol.
8Can I get my case dismissed if the police do not give me my Miranda rights?
No. A common misconception is that the failure by the police to administer Miranda rights to a suspect under arrest is a major police mistake which can warrant dismissal of the case. This simply is not true as the administering of Miranda rights is only necessary if the police intend to interrogate/question the subject while under arrest. Normally, this situation does not arise in DUI cases as any police questioning usually occurs pre-arrest and not post-arrest.
9What action can I take if I believe that the police officer did not have the right to pull me over in the first place?
First, hire an experienced criminal DUI attorney who will be able to analyze the facts of your case and determine whether you have a legitimate basis to seek suppression of any and all evidence arising from the alleged illegal police motor vehicle stop. A police officer must have a reasonable basis to believe the operator has violated a provision of the Pennsylvania Motor Vehicle Code or probable cause that the operator is driving under the influence of alcohol or a controlled substance, in order for the motor vehicle stop to be Constitutional. A Motion to Suppress Evidence filed in the Court of Common Pleas will necessitate a hearing before a judge in which the Commonwealth will have to demonstrate that the motor vehicle stop of the operator was lawful, if not any and all evidence including the police officer’s observations, field sobriety test results, and chemical test results will not be admissible in Court. This generally will result in a dismissal of all charges.
10If I see a DUI checkpoint down the road, can I be arrested for avoiding it by turning around?
This depends on the circumstances and whether the operator exhibits any indicia of driving under the influence, as well as the timing and manner of the operator’s attempt to avoid the DUI checkpoint.
11If my driver’s license is suspended in Pennsylvania, can I still drive in Pennsylvania if I have a driver’s license from another state?
No. It is the privilege to operate a motor vehicle in the State of Pennsylvania which is suspended when the Department of Transportation orders that a motorist’s license shall be suspended. Accordingly, the possession of a valid license from another State does not give the operator a lawful ability to drive in Pennsylvania while his or her privileges are suspended.
12If I am convicted of DUI and lose my license, is it possible for me to get a license to go to and from work?
Possibly. In the State of Pennsylvania there are limited circumstances in which a motorist who has lost his or her license due to a DUI conviction may obtain a “conditional or work license” to travel to and from work. This includes a first offense DUI conviction where the motorist loses their driver’s privileges for a period of twelve months, but may after sixty days apply for a “conditional or work license” with the Pennsylvania Department of Transportation by filing the necessary application.
13Can I still be convicted of DUI if I have not consumed alcohol but I have taken prescription medication?
Yes. If the facts in your case can be proven to demonstrate that you were operating a vehicle while under the influence of a controlled substance which impaired your ability to drive safely, then having a lawful prescription for the controlled substance is not a defense.
14Am I allowed to represent myself in my DUI case?
Yes. However, as Abraham Lincoln once stated a long time ago “you will have a fool for a lawyer.”
15Why is it worth it for me to retain an experienced attorney to represent me?
DUI is a very serious offense in which the penalties include jail time, lengthy driver’s license suspension, expensive fines and costs, as well as a possible criminal conviction which can affect future employment opportunities. Therefore, it is wise investment to obtain the best possible legal counsel to analyze your case and properly protect your interests. The ultimate outcome in your case may likely depend on the level of experience, skill, and reputation of the attorney you retain to represent you.

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21 West Airy Street
Norristown, Pennsylvania 19401