Articles Posted in Breath Testing

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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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The Commonwealth Court of Pennsylvania recently considered the appeal of a license suspension for refusal to submit to chemical testing. The defendant in Commonwealth v. Campbell denied that she refused testing, and the record shows that she consented to breath testing and submitted several samples. Rather, she argued that the police did not give her enough opportunity to comply with the testing requirement. The court reviewed the elements that the state must prove in order to prove refusal. It affirmed the trial court’s order, meaning that a driver who agrees to submit to chemical testing could still be charged with refusal.

Police arrested the defendant shortly before midnight on February 12, 2012. The arresting officer administered a portable breath test, which reportedly showed blood alcohol content (BAC) of .18 percent. He concluded that the defendant had been driving under the influence of alcohol, placed her under arrest, and took her to a sheriff’s office with a chemical testing facility.

At the sheriff’s office, a deputy sheriff reportedly read the Implied Consent Law warnings to the defendant “several times,” and the defendant stated that she understood the warnings and agreed to submit to chemical testing. The deputy testified in court that he used a “BAC Data Master” for breath testing. The deputy testified that the defendant failed to perform the test properly, despite his instructions. She allegedly only breathed into the mouthpiece for four to five seconds, which was not enough time to collect a sample. The deputy allowed her to try again, but claimed that the second sample was also insufficient. His supervisor prevented him from giving her a third try. Continue reading

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The state can charge a person with DUI even without direct evidence of intoxication, as demonstrated by the case of a Texas man who was arrested and charged with DUI despite negative breath and blood tests. Prosecutors eventually dismissed all of the charges against him, but police continue to defend the decision to arrest and charge him, arguing that he could have been impaired by a substance that did not show up on the blood test. Pennsylvania law states that blood alcohol content (BAC) of 0.08 percent or higher constitutes “impairment,” but it also prohibits driving while under the influence of any amount of alcohol or a controlled substance that makes safe driving impossible. Proving impairment is generally easiest for the state with BAC evidence, but it is not necessarily required.

The arrest occurred on January 13, 2013 in Austin, Texas, when police pulled the man over for allegedly running a stop sign. He was taken into custody and given a breath test, which showed BAC of 0.00 percent. He admitted to having one drink earlier, but the test results suggest that no significant amount of alcohol was present in his bloodstream. He agreed to submit to a blood test, which police say screens for seven different drugs, including alcohol. The results were not available for several months, but also showed no measurable amount of any of the seven drugs.

The man was nevertheless charged with DUI, known in Texas as DWI. Police claimed that he failed a field sobriety test at the time of his arrest, with official reports stating that the arresting officer observed him swaying and needing to use an arm to support himself while standing on one leg. This behavior could have multiple other possible explanations besides intoxication, such as a condition affecting one’s equilibrium or simple fatigue, but prosecutors apparently felt this was enough to support a DUI case. More than a year after the arrest, they finally dismissed all charges. Continue reading

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A bill currently pending in the Pennsylvania Legislature, SB 1036, would significantly expand the use of ignition interlock devices in DUI cases. This is a device that tests breath alcohol content (BAC) and prevents a vehicle from starting if the driver’s BAC is above a certain level. Currently, state law only requires the device for individuals with more than one DUI conviction. The bill, if enacted, could actually enable people to begin driving again sooner after a DUI-related license suspension than before. At the same time, however, the bill has the support of Mothers Against Drunk Driving, an organization which rarely supports legislation that makes things easier for DUI defendants.

State law defines an “ignition interlock system” as one that requires a driver to give a breath sample before starting the vehicle, and which prevents operation of the vehicle if the breath sample shows BAC of 0.025% or higher. The device is required for drivers with two convictions for DUI within a ten-year period, drivers whose license has been suspended for refusal to submit to chemical testing while under arrest, or who violated a previous order to use an ignition interlock system. Drivers must have the device professionally installed, and they are responsible for paying a monthly service fee. Once the state has issued a restricted license requiring ignition interlock, the driver must use the device for at least one year before obtaining an unrestricted license. Drivers with only one DUI conviction are not required to use an ignition interlock device at the end of their license suspension.

The bill would add a new section to the chapter on licensing of drivers to create an “ignition interlock limited license.” Under current law, a first conviction for DUI can result in license suspension of twelve to eighteen months. A person’s license can also be suspended for refusing to submit to chemical testing. Instead of an automatic license suspension, the proposed new law would give drivers the option of continuing to drive with the use of an ignition interlock device. The amount of time an individual has this type of license would be credited to any other period of time they would be required to have an ignition interlock system under current law for the same alleged offense. Continue reading

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A late 2012 court ruling questioned the calibration methods used by Pennsylvania law enforcement for breathalyzer devices, and seemed to cast doubt on DUI cases all over the state. Comm. v. Schildt, No. 2191 CR 2010, opinion (Pa. Ct. Comm. Pleas, Dauphin Co., Dec. 31, 2012). Unfortunately, the Superior Court of Pennsylvania reversed the decision on procedural grounds in a nonprecedential opinion in September 2013. The trial court’s analysis still offers an important glimpse of something DUI lawyers have known for a long time: prosecutors rely on technology that requires, but does not always receive, regular maintenance and calibration in order to provide accurate information.

The defendant was reportedly involved in a single-car accident shortly after 2:00 a.m. on January 16, 2010. A state trooper arrested him after he admitted to having multiple alcoholic drinks. At the police station, a breath test was administered after a twenty-minute observation period, but within two hours of the time he was driving. The device used had last been calibrated and tested on January 9, according to police. Two breath tests yielded results of 0.208% and 0.214% breath alcohol content.

Prosecutors charged the defendant with driving under the influence at the highest rate of alcohol, 0.16% or higher. 75 Pa.C.S.A. § 3802(c). The defendant filed a motion to quash the charges, arguing that the breath testing could not scientifically establish blood alcohol content above 0.15%, and that therefore prosecutors could not prove an essential element of their case. Continue reading