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Questions to Ask When Charged with a DUI in Philadelphia

Posted by Joseph D. Lento | Nov 08, 2017 | 0 Comments

It is well-known that DUI charges can greatly affect a person's future, both in the short and long-term.  Some potential consequences are more widely recognized than others, however.  If convicted, most people know that their driver's license may be suspended, or that they will have to complete alcohol highway safety school.  Some people may even know an ignition interlock device may have to be installed, but some potential consequences may be less obvious.

Regardless of whether a person faces a license suspension, a weekend in jail, or time in state prison, the potential consequences can severely set a person back.  When a person is arrested in Philadelphia, whether for a first, second, or third DUI, there are many questions that must be asked.  Of course, a person will have to be concerned about how a DUI conviction can affect their freedom and their ability to drive, but questions as to how a DUI conviction can affect one's work, education, custody rights, and related concerns, will also be at the forefront of a defendant's mind. 

A DUI defendant should not put the cart before the horse, however, because all is not lost when charged with driving under the influence in Philadelphia.  The path forward may be difficult, but if the most important questions are considered and addressed as effectively as possible, the defendant can potentially win the DUI case.

No one wants the "worst case scenario" to happen, and in a DUI case, the worst case scenario is being found guilty or pleading guilty and being subject to often burdensome, if not severe, consequences.  Because a defendant and his or her attorney should aim for the "best case scenario," namely, being found not guilty or having the charges dismissed or withdrawn, the most important questions that must be asked when arrested and charged with a Philadelphia DUI follow below:

Question # 1: Can the Philadelphia District Attorney's Office prove the defendant was driving the car?

A critical element of a DUI case in Philadelphia is whether the Commonwealth of Pennsylvania, which is generally represented by the Philadelphia District Attorney's Office in Philadelphia criminal cases, can prove that the person charged with driving under the influence was in fact driving, or operating the vehicle in question; the car, SUV, truck, for example.  (For purposes of this article, driving the car will be used interchangeably with operating the vehicle.)

Questions that may arise at trial include discrepancies between the testimony or statement of the Philadelphia Police Officers or Pennsylvania State Troopers involved in the arrest versus civilian witnesses who were present at the scene. 

In Philadelphia DUI cases that involve an accident, the officer or trooper will often arrive at the accident scene at a later time.  Because of this consideration, the testimony of a civilian or the defendant's own statement may be needed to prove operation of the vehicle.

Other issues include where the defendant was in relation to the vehicle, whether the vehicle's motor was running, and if not, whether the keys were in the vehicle's ignition.  If the keys were in the vehicle's ignition, the defendant, even if not seated in the driver's seat, can be deemed to be in  "operative control" or "actual physical control" of the vehicle.

There are several Pennsylvania court cases that have addressed what courts require to prove operation of the vehicle; namely, Commonwealth v. Byers, 650 A.2d 468 (Pa.Super. 1994); Commonwealth v. Saunders, 691 A.2d 946 (Pa.Super 1997); and Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992).

If the answer to whether the Philadelphia District Attorney's Office can prove operation of the vehicle is "NO," the defendant can win the DUI case unless the defendant made a statement to the Philadelphia Police, the Pennsylvania State Police, or others (such as an ambulance driver is the defendant was transported from the accident scene to the hospital) that he or she was driving the vehicle. 

If the defendant made a statement, Question # 2 needs to be answered.  If, however, the answer to whether the Philadelphia District Attorney's Office can prove operation of the vehicle is "YES," then Question # 3 needs to be answered.

Question # 2: Can the defendant's statement as to driving the car be suppressed?

At times, especially in DUI cases involving an accident where the defendant was not "stopped," a defendant will volunteer to the Philadelphia Police Officer or Pennsylvania State Trooper that he or she was driving the car.  At other times, such a statement may be coerced by law enforcement.  If a defendant made the statement as the result of a "custodial interrogation," meaning in custody and subject to questioning, the defendant must be given his or her Miranda rights, which means that the defendant must be informed that they have the right to remain silent and that what they say can be used against them in a court of law.  If the defendant merely volunteered the information, or offered the fact that he or she was driving to law enforcement (or others), such a statement most likely will be able to be used against the defendant at the DUI trial.

Court cases that are relevant to the issue of whether a defendant's statement is admissible or not include: Pennsylvania v. Bruder, 488 U.S. 11 (1988) and Berkemer v. McCarty, 468, U.S. 420 (1984)  Related considerations include: Was the car stop based on probable cause or reasonable suspicion?  If not, was the statement the fruit of poisonous tree?  (Fruit of the poisonous tree means, "Was the statement, the "fruit" in other words, obtained from improper police conduct?  If the statement was obtained from improper police conduct, then the statement would be inadmissible and can be excluded from evidence (unless the prosecution can demonstrate that it would have obtained the improperly-obtained fruit otherwise).

If, however, the defendant's attorney can "motion" the court and win the argument why the statement that the defendant made regarding operating the vehicle can be suppressed, the defendant can win the DUI case if there are no witnesses to testify that the defendant was operating the vehicle.

If a defendant's statement cannot be suppressed, for example, if the police followed proper protocol in taking the statement, or if the statement was an exception to Pennsylvania's hearsay rule, such as an "excited utterance," then Questions # 3, 4, 5, 6, and 7 must be answered; relating to what is considered to be "under the influence" in Pennsylvania.

Question # 3: Can evidence of the police officer's observations of intoxication and/or Breathalyzer or blood test results be suppressed?

As with a defendant's statement, the issue of whether there was reasonable suspicion or probable cause to stop the defendant's vehicle must be considered.  The Philadelphia Police or the Pennsylvania State Police generally cannot lawfully stop a person's car unless there is suspicion of criminal activity or a violation of Pennsylvania's Motor Vehicle Code, known as Title 75.  A violation of Pennsylvania's Motor Vehicle Code, would include, for example, crossing the double yellow line, running a stop sign, or having tinted windows.

If the initial car stop is unlawful, the the police officer's observations regarding the defendant's intoxication and/or the Breathalyzer or blood test results are the fruit of the poisonous tree and should be inadmissible as evidence.

Other considerations include: 1) whether regulations promulgated by Pennsylvania's Department of Transportation, known as PennDOT, were followed regarding how Breathalyzer and blood tests are to be performed; and 2) whether there are any issues related to the accuracy and calibration of the Breathalyzer used to breath test the defendant.  If PennDOT protocol is not followed, or if accuracy or calibration issues regarding the Breathalyzer can be demonstrated to the court, an argument can be made by the defendant's attorney as to why Breathalyzer or blood test results should be suppressed.

Ultimately, if evidence of the police officer's observations of intoxication and/or Breathalyzer or blood test results can be suppressed, then there is a good chance that the defendant will be found not guilty of the DUI charges.  If evidence of the police officer's observations of intoxication and/or Breathalyzer or blood test results cannot be suppressed, then Questions # 4, 5, 6, and 7 must be answered; relating to what is considered to be "under the influence" in Pennsylvania.

Question # 4: Will the Breathalyzer or blood test results be admitted as evidence of the defendant's intoxication?

More specifically, will the Breathalyzer or blood test results be admitted as per se evidence?  Per se translates to "on its face," which means that the results of the Breathalyzer or blood test alone are sufficient to prove that the defendant was driving under the influence of alcohol or a controlled substance.

A defendant charged with a DUI in Philadelphia has other avenues of attack related to the use by the prosecution of Breathalyzers and blood tests.  In addition to calibration and accuracy issues that potentially arise with respect to breath tests in Philadelphia is the fact that the breath tests and blood tests must be administered to the person suspected of driving under the influence within two hours of driving; this is known as the "Two-Hour Rule".  If this does not take, the defendant's attorney can argue that the test was improperly performed, and should therefore be excluded from evidence. 

In addition to the "Two-Hour Rule", there is an additional avenue yet to attack the DUI charges.  Specific to DUI cases involving controlled substances, and marijuana in particular, is the fact that a blood test in some instances will indicate that there are insufficient levels of a controlled substances, such as THC in DUI marijuana cases, for a defendant to be per se driving under the influence.  When this occurs, the defendant's attorney should argue that the levels of controlled substance in the defendant's blood are insufficient to prove driving under the influence.

Ultimately, if the Breathalyzer or blood tests results will be admitted as per se evidence of the defendant's intoxication, Question # 5 has to be answered.  If if the Breathalyzer or blood tests results will not be admitted as per se evidence of the defendant's intoxication, Questions # 6 and 7 have to be answered; relating to what is considered to be "under the influence" in Pennsylvania.

Question # 5: Do the Breathalyzer or blood test results meet the per se limits for a person to be considered under the influence in Pennsylvania?

Issues to related to Breathalyzer results and blood test results will often correlate to what "Tier" the DUI case falls under - Tier I, Tier II, or Tier III.  Because a DUI with controlled substance case will always be under prosecuted under Tier III, the most serious Tier and the Tier with the most significant potential penalties, what Tier a breath test case will be prosecuted under can have a major impact on what potential penalties a DUI defendant may face; this is especially true for repeat DUI offenders in Philadelphia.

Avenues of attack that an experienced attorney will use can include presenting evidence and arguing that there was either machine error, physiological error, or both, that caused the breath test to read higher than was in fact the face; thereby unfairly invoking a higher Tier with more severe potential consequences.  For example, a third offense DUI in Pennsylvania prosecuted under Tier I can subject a defendant to a mandatory minimum of 10 days in jail, whereas a third offense DUI under Tier III can subject a defendant to a mandatory minimum one year in state prison.

If either machine or physiological error (consuming breath mints, for example, before taking a Breathalyzer can cause an elevated reading) can place a defendant's blood alcohol content (BAC) above the legal limit (0.08 %), then the defendant's attorney can argue that the defendant was not in fact intoxicated or otherwise impaired.  The prosecution can, however, argue that although the defendant's blood alcohol content was lower than the legal limit at the time of the breath test or blood test, the defendant was in fact intoxicated or otherwise impaired when driving.  This argument is based on the concept of "Relation Back" testimony.

What is Relation Back testimony and how can it factor into a Philadelphia DUI case?

Relation Back testimony is based on the concept of “retrograde extrapolation” in which a chemist or other qualified professional uses accepted averages to estimate a defendant's blood alcohol content (BAC) at the time of operation of a motor vehicle as derived from a test result obtained sometime after operation.  Relation Back is a mechanism to take into consideration the absorption and elimination of alcohol in a defendant's blood stream.  This is important because to be found guilty of a DUI in Philadelphia, a defendant must be under the influence of alcohol (or controlled substance) at the time of operation.  For example, it is not a crime to be under the influence of alcohol at a police station at the time of the breath or blood test if the test is administered an hour after operation if the person was not under the influence while driving.

The issue of alcohol absorption is important because when a person drinks alcohol, it is not immediately absorbed into the person's blood stream.  For instance, if a person drinks a bottle of vodka, the person will most likely not be under the influence five minutes after doing so because the vodka has not had time to be absorbed into the person's blood stream.  Therefore, if a person drinks the bottle of vodka and immediately drives and get stopped by the police, the person will not have been under the influence at the time of operation.  When the person takes a breath or blood test an hour later, however, the test result will be very high.  In such a case, a defendant's attorney could arrange for a chemist to appear in court on the defendant's behalf and provide expert testimony to illustrate that although the defendant was extremely intoxicated at the time of the test, the defendant was not under the influence at the time of operation.

The issue of is alcohol elimination is also important because just as it takes time for alcohol to be absorbed into a person's blood stream, a person's body also eliminates alcohol from their blood stream over time.  Among professionals in the field, the accepted average elimination rate is 0.015 per hour.  For example, if a person is stopped while driving at 10 PM. and takes a Breathalyzer or blood test at 11 PM, the test result at 11 PM is 0.07.  A chemist for the prosecution, for which there is one who appears regularly in Philadelphia DUI courtrooms, could therefore testify that 0.015 of alcohol was eliminated from the defendant's blood stream during the hour between the stop and the test so the defendant's actual blood-alcohol content at the time of operation was .085 (0.07 per the test results + 0.015 eliminated between the car stop and the test).  The defendant can then be charged with driving with a blood-alcohol content of 0.08 or greater even though the test result was only 0.07.  In such an instance, the Philadelphia District Attorney's Office can argue that the defendant was in fact driving under the influence. 

Ultimately, if the breath or blood test results meet the per se limits of driving under the influence, the person charged with DUI will be found guilty.  If the breath or blood test results do not meet the per se limits, Questions # 6 and 7 must be answered; relating to what is considered to be "under the influence" in Pennsylvania.

Question # 6: Is the Philadelphia District Attorney's Office unable to prove that the defendant drank before driving?

Pennsylvania law requires that for a person to be found guilty of a DUI charge, the prosecution has to prove that the person drank, or "imbibed," prior to driving.  This can become an issue in DUI cases when the defendant's arrest is delayed for some reason.  For example, the defendant's arrest can be delayed if there is an accident and there is evidence (such as an open container in the car) that the defendant drank after driving.  A defendant's arrest can also be delayed because he or she was arrested at a different location, away from where the accident occurred; for example, at home or at a bar, sometime after driving.

Ultimately, if the prosecution is unable to prove that the defendant drank before driving, the defendant will win the DUI case.

Question # 7: Does the defendant have a non-intoxication defense to the DUI charges?

In some cases, a defendant's attorney can present evidence and argue that the defendant was not intoxicated or otherwise impaired.  This potential defense can arise in Philadelphia DUI cases where there is no blood alcohol content (BAC) either because the defendant refused to take a breath or blood test, or because the results of the breath or blood test were suppressed and excluded from evidence (because the test results were the fruit of the poisonous tree for example).  In DUI cases involving drugs, if a motion in limine was granted in that the level of the drug did not meet Pennsylvania's per se levels of impairment, there may also be no blood alcohol content available for use by the prosecution.  Lastly, for DUI cases prosecuted under the DUI statute's "general impairment" provision of Title 75 Section 3802(a)(1), a non-intoxication defense may also be presented.

When there is no blood alcohol content available, or if the defendant's attorney intends to argue that the defendant was not intoxicated (despite the prosecution's argument that the defendant was incapable of safely driving after imbibing a sufficient amount of alcohol), certain issues must be considered.  Because a police officer can testify that, despite there being no breath or blood test results, the defendant was incapable of safely driving, this potential issue must be recognized by the defense.  For one, the police officer can testify to the defendant's physical condition; the defendant could have been disheveled, had glassy or blood shot eyes, could have smelled like alcohol or marijuana for example, and so forth.  In addition,a police officer can testify that the defendant could not stand without swaying, or stumbled when walking.  This kind of evidence can be considered by the judge in deciding whether or not the defendant was capable of driving safely. 

Philadelphia DUI cases are decided by a Philadelphia Municipal Court judge unless the case is appealed after a finding of guilt to the Philadelphia Court of Common Pleas.  In the Court of Common Pleas, the defendant has the right to have the case heard by a jury or a Common Pleas judge; if the case is heard by the judge in the Court of Common Pleas, it is known as a "waiver" trial.  Both courts are located in the Justice Juanita Kidd Stout Center for Criminal Justice, also known as the Criminal Justice Center or the "CJC".  The Criminal Justice Center is located at 1301 Filbert Street, Philadelphia, PA 19107.

On the other hand, the defense can introduce evidence in its favor.  If there were witnesses to the fact that the defendant was not intoxicated, such witnesses could testify on the defendant's behalf; people who observed the defendant in the hour or two before the defendant was arrested who can testify that the defendant was not intoxicated, passengers in the defendant's car, people who observed or spoke with the defendant an hour or two after arrest are examples of potential defense witnesses.  Lastly, if the defendant has good "character" for purposes of court, which means that they have not been convicted of any prior crimes, defense character witnesses can testify on the defendant's behalf.

Because the judge (or potentially the jury in cases appealed to the Philadelphia Court of Common Pleas) will make a credibility determination as to whether he or she believes the police officer(s), state trooper(s), defense witness(es), or the defendant if he or she chooses to testify, a non-intoxication defense will live and die on who the judge believes.

Philadelphia DUI Attorney | Philadelphia Driving Under the Influence Attorney

If you or your loved one is charged with driving under the influence in Philadelphia, and regardless if the case involves general impairment, a high rate of alcohol, or a controlled substance, it is critical to make certain that all avenues of attack and defense are explored.  There are many questions that need to be answered when faced with a DUI charge.  Attorney Joseph D. Lento can help - Contact him today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has nearly a decade of experience fighting for the futures of his clients in criminal courtrooms in Philadelphia, the Pennsylvania counties, as well as New Jersey. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being.

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Attorney Joseph D. Lento has nearly a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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