Articles Posted in Breath Testing

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Pennsylvania, like many states, has an implied consent law. In other words, pursuant to the Pennsylvania Vehicle Code, everyone who drives a motor vehicle in Pennsylvania is deemed to consent to the chemical testing of their breath if they are stopped for suspicion of DUI. As such, if a person refuses to submit to a breath test, their license must be suspended. The police must provide a DUI suspect with an O’Connell warning, however, and the suspect must knowingly refuse to submit to the test in order for civil penalties to be imposed. Recently, a Pennsylvania court addressed the issue of whether a driver that does not speak English could consciously refuse to submit to a breath test, ultimately ruling that he could not. If you are accused of a DUI offense or refusal to submit to chemical testing, it is smart to meet with a Pennsylvania DUI defense attorney to evaluate your options.

The Facts of the Case

It is alleged that a police officer witnessed the defendant driving erratically for several minutes. The officer then stopped the defendant and attempted to question him. The defendant, who did not speak or understand English, appeared intoxicated. Using hand gestures, the officer asked the defendant how much he drank that evening, and the defendant motioned that he had three alcoholic beverages.

Reportedly, the officer then read the defendant the O’Connell warning advising him that if he did not provide a breath sample, his license could be suspended. The warning was written in English. The officer then asked the defendant to submit to a breath test, but the defendant stated no. The defendant also refused to sign the portion of the form indicating he had been advised of the warnings therein. The department of transportation subsequently suspended the defendant’s license.  The defendant appealed the suspension, and the trial court granted his appeal. The department of transportation then appealed to the Commonwealth Court. Continue reading

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Legislators, Mothers Against Drunk Driving, and other interested parties have advocated for legislation mandating that all new vehicles come equipped with alcohol detecting devices to prevent people from driving while intoxicated for the past several years. The US House of Representatives recently enacted the Infrastructure Investment and Jobs Act, that contains an Advanced Impaired Driving Technology (AIDT) provision that Mothers Against Drunk Driving described as the single most significant legislation passed in the organization’s forty-one-year history. While no one disputes the hazards of driving while impaired, mandatory alcohol monitors may infringe on people’s rights and cause a slew of other problems. If you’ve been charged with a DUI in Pennsylvania, it’s in your best interests to speak with a Pennsylvania DUI defense lawyer about your options.

The Proposed Technology

Allegedly, the AIDT section of the Act establishes a threshold that Mothers Against Drunk Driving estimates will avoid nearly ten thousand drunk driving deaths each year. Mothers Against Drunk Driving’s President further stated that the law will basically eliminate the leading cause of mortality on America’s highways. She suggested that technology is required to prevent unsafe driving practices used by those who fail to make the correct decisions when it comes to getting behind the wheel after drinking.

The act provides that the National Highway Traffic Safety Administration (NHTSA) must to undertake a process to establish rules and set a standard for impaired driving safety systems on all new vehicles within three years. NHTSA is anticipated to evaluate technology such as alcohol detection systems, which use sensors to determine whether a driver is intoxicated and, if so, stop their car from driving. Automobile makers will have two to three years to implement the safety standard once it is established. Continue reading

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In the majority of cases in which a defendant is charged with a DUI offense, the Commonwealth will rely on the results of the defendant’s breathalyzer test as evidence of the defendant’s guilt. Thus, if a defendant can prove that the test was administered via a faulty breathalyzer machine, he or she may be able to argue that the results are inaccurate and, therefore, should be deemed inadmissible.  In a recent case in which a DUI defendant moved to suppress the results of her breathalyzer test, the Superior Court of Pennsylvania discussed regulations governing the use of breathalyzer tests. If you reside in Pennsylvania and are charged with a DUI crime following a breathalyzer test, it is advisable to consult a proficient Pennsylvania DUI attorney to discuss what defenses may be available in your case.

Facts of the Case

It is alleged that the defendant was arrested due to suspicion of DUI. She was transported to the police headquarters, where she submitted to a breathalyzer test. The test indicated her blood alcohol content to be 0.225. She was then charged with DUI – highest rate of alcohol. In an unrelated case, discovery revealed that the breathalyzer device used to administer the defendant’s test produced inconsistent results five months prior to the defendant’s arrest. The device was then removed from service, recalibrated, and retested prior to being placed back into service. No repairs were made on the device.

Reportedly, the defendant filed a motion to suppress the results of her breathalyzer test, arguing that the device should have been repaired before it was placed back into service. The court denied the motion, and the defendant was convicted as charged. She then appealed the court’s denial of her motion to suppress.

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Under the Pennsylvania Implied Consent Law, a driver who is suspected of driving under the influence of alcohol but refuses to submit to chemical testing can suffer a suspension of his or her license. To suspend a license pursuant to the Implied Consent Law, the Department of Transportation must prove several elements, one of which is reasonable grounds for suspicion of DUI.

In Dillon v. Commonwealth, the Commonwealth Court recently analyzed what constitutes reasonable grounds as it pertains to the civil context of license suspension. If you were charged with a DUI, you should meet with an experienced Pennsylvania DUI attorney to discuss the facts surrounding your arrest and how they affect your case.

The Defendant’s Traffic Stop

Allegedly, an officer observed the defendant swerving in the roadway and effected a traffic stop. Upon approaching the vehicle, the officer noticed the defendant had difficulty identifying his license in a stack of cards and carried a strong odor of alcohol. Additionally, the defendant’s speech was slightly slurred and his eyes were bloodshot and glassy. The officer asked the defendant if he had been drinking and the defendant replied that he’d had a few drinks with dinner. The officer asked the defendant to submit to a breath test, but the defendant refused. The officer then transported the defendant to the police station.

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Under Pennsylvania DUI law, refusing to submit to a breath test during a stop due to suspicion of DUI can result in a suspension of your license. In some cases, you may be able to come to an agreement with the arresting officer and prosecuting attorney that allows you to avoid a license suspension regardless of the fact that you refused to provide a breath sample. In Hudak  v. Commonwealth, however, the Commonwealth Court of Pennsylvania ruled that the Department of Transportation (DOT) is not bound by a third party agreement and can impose a license suspension regardless of acceptance of the terms of a plea bargain agreement. If you are facing DUI charges and refused to submit to a breath test you should confer with a knowledgeable Pennsylvania DUI attorney to analyze the circumstances surrounding your arrest and discuss your available defenses.

Facts of the Case

Allegedly, police stopped the suspect for driving an ATV on a public road without lights. The officer observed an odor of alcohol on the suspect’s breath, after which the suspect admitted to consuming seven beers in the previous hour. The suspect submitted to field sobriety tests, after which the suspect was arrested. Following his arrest, the suspect would not submit to a breath test. He was informed of the consequences for refusing testing pursuant to the Implied Consent Law but still refused to submit to the test.

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Most people are aware that if you are stopped due to suspicion of a DUI, the police can request that you submit to a breath test. It is not common knowledge, however, that under Pennsylvania DUI law, you are required to provide two breath samples, and the refusal to provide a second sample can result in suspension of your license. In Flaherty v. Commonwealth, the Commonwealth Court of Pennsylvania held that police are not required to provide licensees with a form stating they are required to submit to a second test, and that verbally advising drivers of the requirement was sufficient.

Facts of the Case

The suspect in Flaherty was involved in a single car accident. According to the police, when an officer approached the suspect’s vehicle he noticed an odor of alcohol coming from her breath. She stumbled while exiting her vehicle but was not slurring her speech. The officer requested that the suspect submit to a breath test and was advised if she did not submit to a breath test, her license would be suspended for one year. The suspect was then transported to a second location for the breath test, where she was read Form DL-26A, which again warned if she refused to submit to the breath test her license would be suspended for at least one year. The suspect was then verbally advised she would have to provide two breath samples. The suspect stated she would submit to the test, and was directed how to take the test.

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A driver appealed from a June 21, 2016 judgment of sentence in a Pennsylvania DUI case, imposing 36-108 months of incarceration for homicide by vehicle, recklessly endangering another person (“REAP“), and driving under the influence of a controlled substance.

The trial court summarized the facts as follows. The driver was driving her vehicle on Kindig Road, ran a stop sign at the intersection of Kindig Road and Route 97, and pulled out into oncoming traffic on a busy road with a speed limit of 35 miles per hour. Her line of sight going in the southbound direction was completely obstructed by a building as she approached the stop sign. Rather than inch up past the stop sign to look for oncoming traffic, she never stopped and proceeded into the intersection, traveling 12 miles per hour and pulling out directly in front of the decedent’s northbound box truck. The box truck crashed into the driver’s car, crossed the double yellow line, and then crashed into a tow truck driving southbound on Route 97. The evidence also showed that the driver was familiar with her route of travel, the placement of the stop sign, and the nature of the intersecting road.

A jury found her guilty of homicide by vehicle and REAP, but not guilty of homicide by vehicle while driving under the influence. The trial court found her guilty of DUI and various summary traffic offenses. In June 2016, the trial court sentenced her to 27 to 84 months of incarceration for homicide by vehicle, a consecutive nine to 24 months for REAP, and a concurrent three to six months for DUI.

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In the wake of the Fourth of July, historically known for its high rate of drunk-driving fatalities nationally, Pennsylvania police departments have been enforcing new DUI rules mandated by the recent Supreme Court ruling in Birchfield v. North Dakota. 

Chief Gleason of the West Goshen Police Department said his officers would start implementing the new rules immediately. They will strive to perfect their procedures for investigating DUIs and making arrests. They plan to continue to pursue drunk drivers vigorously.

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People who operate vehicles in Pennsylvania have consented to chemical testing, simply by virtue of operating a vehicle, if they are suspected of driving under the influence of alcohol (DUI), according to Pennsylvania law. This applies even if a person is operating a bicycle at the time police seek to perform a chemical test, according to a recent ruling by the Pennsylvania Commonwealth Court in Bilka v. Commonwealth. The defendant appealed an 18-month license suspension ordered after he refused to submit to blood testing. He argued that the implied consent law did not apply to him because he was riding a bicycle, which does not require a license, at the time of his arrest. The trial court and Commonwealth Court disagreed and affirmed the license suspension.

A police officer stopped the defendant, who was on a bicycle, shortly before midnight on September 15, 2011. The officer alleged that he observed the defendant run a red light, and that the bicycle lacked the headlight and side reflectors required by law. He claimed that the defendant smelled of alcohol, had slurred speech, and had trouble walking when he got off the bicycle. After the defendant refused to perform field sobriety testing, the officer placed him under arrest. The defendant refused to submit to blood testing, reportedly telling the officer that he could not be arrested for DUI on a bicycle.

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An appeal in the Pennsylvania Superior Court claimed that a field sobriety test conducted on a snow-covered road, along with breath testing conducted without the 20-minute observation period required by Pennsylvania law, were insufficient to support a conviction for driving under the influence (DUI). The defendant/appellant in Commonwealth v. Favinger challenged the sufficiency of the evidence against him and the legality of the traffic stop that led to his arrest. The Superior Court ultimately affirmed the verdict and sentence, but its opinion offers a useful overview of the different ways that prosecutors may establish that a defendant was impaired by alcohol in a DUI case.

A state trooper pulled the defendant over at about 3:20 a.m. on January 29, 2011. The trooper testified that the defendant continued to travel about half a mile after the trooper activated his emergency lights, finally stopping in a driveway. He claimed that he detected the odor of alcohol, and that the defendant’s eyes were “bloodshot and glassy.” The defendant agreed to field sobriety testing, which the trooper claimed he failed. Breath testing conducted after the defendant’s arrest showed blood alcohol content (BAC) of 0.128 percent. The defendant was later convicted of DUI–general impairment and DUI–high rate of alcohol.

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