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The Pennsylvania Motor Vehicle code prohibits drivers from operating, driving, or exercising physical control over a car if they have consumed an amount of alcohol that renders them incapable of doing so safely. Many people assume that if you do not drive a car while intoxicated you cannot be charged with or convicted of a DUI. This is not true, however, as illustrated in Commonwealth v. Winowitch, a recent case in which the Superior Court of Pennsylvania affirmed a DUI conviction where the defendant was not actually driving at the time of his arrest. The court here found that the circumstantial evidence was sufficient to indicate he was exercising control over his car. If you were charged with a DUI, it is in your best interest to retain an experienced Pennsylvania DUI attorney to help you formulate a strong defense to the charges against you.

Facts Surrounding the Defendant’s Arrest

Allegedly, the arresting officer observed the defendant slumped over asleep in the driver’s seat of his car in a parking lot. The car’s dashboard lights were on and the keys were in the ignition and turned to on, but the engine was off and the car was in park. The officer knocked on the car window until the defendant awoke. The officer then reached across the car to remove the keys from the ignition when the defendant removed the key and tossed it onto the passenger seat. The defendant then denied that that key was in the ignition.  The defendant submitted to a field sobriety test, which he failed. He was charged with a DUI and other offenses.

At trial, the defendant stipulated that two hours prior to when the officer approached him, he made a cash withdrawal from an ATM within a bar that was nearby his parked car. The defendant’s counsel argued that because his car was not on when the officer approached him, the defendant was not exercising physical control over the movement of the car and therefore could not be convicted of DUI. The court rejected this argument, and the defendant was convicted of DUI and the other charges against him. He subsequently appealed. On appeal, his conviction was affirmed.

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Under Pennsylvania DUI law, there are sentencing guidelines that set forth standard sentencing ranges for any DUI conviction. If a judge imposes a sentence the defendant feels is unfair, the defendant can seek a discretionary review from a higher court. Recently, in Commonwealth v. Cordy, the Superior Court of Pennsylvania clarified that for a court to offer a defendant a review of a discretionary sentence, the defendant must show that there is a substantial question that the sentence is improper under the sentencing guidelines. If you were charged with a DUI you should consult a Pennsylvania DUI attorney as soon as possible to ensure you do not waive any rights.

Factual Scenario

Allegedly, the defendant was stopped for speeding. When the police officer approached the vehicle, two men exited the car through the passenger door. The men were instructed to return to the vehicle, which they did. The officer asked why the driver exited via the passenger door, to which the driver replied he did not have a license but was driving due to his friend’s request. When the officer asked the driver for identification, he could not produce any. The driver admitted to drinking and was administered a field sobriety test, which he failed. He was arrested and transported to the police station, where he was identified under a different name than he had given the arresting officer. It was then revealed that the defendant had two active warrants and an extensive criminal history.

Reportedly, the defendant pled guilty to DUI, general impairment, which was an ungraded misdemeanor, and habitual offenders, which was a second-degree misdemeanor. At the defendant’s sentencing hearing, the prosecutor advised the court of the defendant’s criminal history, which included over fourteen prior convictions. The court also heard testimony from the defendant regarding his history of drug addiction. The defendant was sentenced to incarceration of not less than nine months and not more than twenty-three months, and six months probation, which was within the standard sentencing range. The defendant appealed the discretionary portion of his sentence. On appeal, the court affirmed.

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Under Pennsylvania DUI law, you must knowingly and willingly consent to chemical testing for the results of the test to be admissible. If you can show that your consent to a blood test was invalid or coerced, you may be able to suppress the results of the test. Before the Supreme Court of the United States ruling in Birchfield v. North Dakota, a Pennsylvania DUI suspect could face increased criminal penalties for failing to submit to a blood test. After that case decision, the state can no longer impose such penalties.

Recently, in Commonwealth  v. Vanderpool, the Commonwealth Court of Pennsylvania held that submitting to a blood test due to a mistaken belief that a refusal to submit could result in increased criminal penalties is not sufficient to show that consent was invalid. 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.

Factual Scenario

Reportedly, the police detained the defendant for suspicion of DUI. At the time of his arrest, the defendant had a suspended license due to a prior DUI conviction. The police transported the defendant to a nearby hospital where he was read the post-Birchfield revised warnings regarding refusal to submit to chemical testing and agreed to submit to a blood test. The test indicated a blood alcohol level of .115%, and the state subsequently charged the defendant with DUI, DUI related offenses, and careless driving. Before the trial, the defendant filed a motion to prohibit the state from admitting the results of his blood test into evidence, which the court denied. Following a trial, the defendant was convicted of all charges. The defendant appealed.

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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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If you are convicted of a second DUI offense in Pennsylvania, you may face increased penalties. While in most cases it is clear what constitutes a second DUI offense, in some circumstances clarification is required as to whether a prior disposition of a DUI charge constitutes an offense. In Shaffer v. Commonwealth, the Commonwealth Court of Pennsylvania held that acceptance of Accelerated Rehabilitation Disposition (ARD) for a Pennsylvania DUI charge constituted an offense for purposes of license suspension. If you are charged with a DUI and have previously been convicted of a DUI or accepted ARD for a DUI charge, you should consult an experienced Pennsylvania DUI attorney to discuss the facts of your case and determine how to defend against the charges you face.

Facts of the Case

Reportedly, the suspect was charged with a DUI in February 2014, after which he was accepted into an ARD program. The suspect was then arrested for a second DUI in January 2015, prior to his completion of the ARD program. Due to his second arrest, the state filed a petition to terminate the suspect’s participation in the ARD program, which was granted. The suspect then pleaded guilty to the reduced charge of recklessly endangering another person for the 2014 DUI charge, and pleaded guilty to general impairment for the 2015 DUI charge. Reportedly, the suspect was subsequently notified by the Department of Motor Vehicles (DMV) that his license was suspended for one year for the 2015 DUI charge, due to the fact the DMV considered his acceptance of ARD a prior offense. The suspect appealed the suspension. On appeal, the Court of Common Pleas affirmed the suspension.

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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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Under Pennsylvania DUI law, if you are convicted of a second DUI offense within a certain time period, you will likely face greater penalties than if you had no prior DUI convictions. Recent changes in section 3806(b), the provision of the code that determines what constitutes a second offense, modified how time is to be calculated between offenses. In Becker v. Commonwealth, the Commonwealth Court of Pennsylvania held that it is clear the new provision was to be applied retroactively in DUI offenses committed after the amendment of the provision.

In Becker, defendant was charged with a DUI in December 2010 and convicted in October 2012. The provision of the code he was convicted of violating, section 3802(a)(1), prohibits an individual from driving after consuming alcohol to the point where he or she is incapable of driving safely. Defendant’s sentencing included a one-year suspension of his license, which he did not appeal. His license was suspended from December 11, 2012 until December 17, 2013. Defendant was charged with a second DUI for a violation of section 3802(a)(1) on November 6, 2011. He was convicted of his second DUI in August 2015 and his license was suspended under section 3806(b), which was amended in October 2014 to provide that any conviction within ten years of sentencing on a prior conviction constitutes a second offense. Defendant appealed his license suspension, arguing the prior version of section 3806(b), which stated a conviction within ten years of a prior violation constituted a second offense, should apply, as it was the provision in effect during both DUI violations. As defendant’s second violation occurred prior to his conviction for his first offense, he argued it did not constitute a second offense. The trial court denied defendant’s appeal, stating the new section 3806(b) applied. As defendant’s second conviction was after the date of the amendment of section 3806(b), the court found it the new section 3806(b) applied. Defendant then appealed to the Commonwealth court.

The issue on appeal was whether defendant fell within the exception to suspension, which provides that a defendant will not face a license suspension where they are convicted of an ungraded misdemeanor and have no prior offense. To fall under the exception, the defendant must be convicted of violating section 3802(a)(1), must be subject to penalties as set forth in section 3804(a), and must have no prior offenses. While the parties agreed defendant met the first two elements, they did not agree as to whether he had a prior offense. Defendant argued the trial court erred in retroactively applying the new section 3806(b) rather than applying the old section. The court disagreed, noting that new section 3806(b) clearly stated it applied to anyone sentenced after December 26, 2014. As defendant was not sentenced until August 2015, the new section 3806(b) was applicable.

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The United States Supreme Court’s decision in Birchfield v. North Dakota, is an important ruling that permanently altered the manner in which DUI cases are prosecuted and what penalties may be imposed, throughout the country. In Pennsylvania, Birchfield continues to cause confusion, however, both among the prosecution and Pennsylvania DUI attorneys, as to what warnings are required and what evidence may be introduced against defendants. In Turner v. Commonwealth, the court clarified that a license suspension could be imposed for failure to submit to a blood test, regardless of the fact the Defendant was not given a warning regarding increased criminal penalties.

In Turner, a police officer noticed Defendant’s vehicle stopped on the side of the highway, with Defendant asleep in the driver’s seat. The officer asked Defendant to submit to field sobriety testing, which Defendant was unable to complete. Defendant admitted to drinking alcohol, but refused to submit to a breath test. He was arrested due to suspicion of DUI and transported to a facility to undergo a blood test. Defendant was warned of the consequences of refusing to undergo a blood test, but was not warned that if he refused the test he would face increased criminal penalties. Defendant refused the test and was subsequently notified his license was suspended for one year. Defendant appealed, arguing the suspension was improper because the police officer did not warn him of increased criminal penalties for refusal of the blood test. Following a hearing, Defendant’s suspension was affirmed and he appealed to the Commonwealth court, which also affirmed the suspension.

The Commonwealth court noted the same issue was ruled upon in a previous case and held it was bound by that ruling. The Defendant argued the police officer was obligated to warn of increased criminal penalties even though they were constitutionally invalid, because such warnings were required by the motor vehicle code. The court stated there was no reason for the police officer to warn of increased criminal penalties for refusing to submit to a blood test, when said penalties were no longer permitted under the Birchfield ruling, and deemed the portion of the code requiring such warnings severable from the remainder of the code. The court went on to say that the Birchfield ruling did not stop the imposition of civil penalties for refusing a blood test, and clarified that a license suspension was a civil penalty and not a criminal penalty. As such, the failure to warn of criminal penalties did not invalidate a civil penalty in the form of a license suspension.

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The United States Supreme Court’s ruling in Birchfield v. North Dakota drastically changed the prosecution of DUI cases throughout the country. In Birchfield, the Court held that a DUI defendant cannot be subject to warrantless blood tests or face increased criminal penalties for refusing to submit to blood testing. The Birchfield verdict immediately affected the prosecution of DUI cases filed after the decision was rendered. In many states, however, it remains unclear whether Birchfield should be applied retroactively to cases that were pending when it was decided. The Supreme Court of Pennsylvania recently granted an appeal in Commonwealth v. Hays on the sole issue of whether Birchfield should apply to Pennsylvania DUI cases that were not final when the decision was rendered.In Commonwealth v. Hays, the defendant was detained due to a traffic violation on April 11, 2014. When the police officer approached the vehicle, he observed a strong odor of alcohol coming from the defendant. As a result, he requested that the defendant perform field sobriety testing. The defendant failed the field sobriety tests and was transported to a facility for further testing. At the facility, he was read the standard warning, which stated, in part, if he refused to submit to a blood test, his license would be suspended for at least one year, and he would face other additional penalties. Following the warning, the defendant submitted to the blood test, which indicated his blood alcohol level was .192. He was charged with DUI and DUI at the highest rate of alcohol. On August 25, 2016, following a jury trial, the defendant was convicted on both charges and sentenced to five to six days in jail.

The defendant then filed a post-trial motion, arguing pursuant to the United State Supreme Court’s ruling in Birchfield, which was decided the day after his jury trial, his consent to the blood draw was not involuntary, and his conviction should be vacated. Specifically, the defendant argued that he only consented to the blood test due to the fear of increased criminal penalties, and therefore, his consent was invalid. The Commonwealth argued the defendant was not entitled to post-conviction relief because he did not preserve the issue before or at trial. The trial court granted the defendant’s motion and ordered a new trial. The Commonwealth appealed.

On appeal, the Superior Court of Pennsylvania vacated the trial court’s ruling, agreeing with the Commonwealth that since the defendant did not raise the argument that his blood testing was involuntary prior to or during his trial, he waived the right to assert it as a defense. The court noted that Pennsylvania case law clearly holds that a defendant is not entitled to the retroactive application of a new constitutional rule, unless he or she first raises the issue during trial. Since the defendant did not raise the issue of involuntary consent until after his trial, the court ruled he was not entitled to retroactive application. The defendant subsequently appealed, and the case is before the Pennsylvania Supreme Court on the issue of whether Birchfield should be applied retroactively. Whatever ruling the court issues, it is clear it will have a significant impact on Pennsylvania DUI cases that were pending when Birchfield was decided, and it may be persuasive in other jurisdictions ruling on the same issue.

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While it is common knowledge you can be charged with DUI if a police officer directly observes you driving a vehicle under the influence of alcohol, many people are unaware you can be charged with DUI even if the arresting officer did not actually witness you operating a vehicle. In Yencha v. Commonwealth, et al., the court clarified the issue of what constitutes sufficient evidence for charging an individual of driving under the influence of alcohol within the framework of Pennsylvania DUI law.

In Yencha, an officer responded to a call regarding a hit and run accident. When he arrived at the scene, the victim and a witness to the accident both described the vehicle involved in the hit and run and the man driving the vehicle. The witness also provided the license plate number of the vehicle. The officer ran the license plate number and subsequently found the vehicle parked outside of the suspect’s residence. The officer noted the vehicle had front-end damage. The officer spoke with the suspect, who reported his vehicle had been damaged in a previous accident and denied any knowledge of the hit and run accident. The officer noted the suspect had glassy eyes, slurred speech and an odor of alcohol on his breath and requested the suspect undergo a field sobriety test. The suspect refused to undergo any testing. The officer arrested the suspect for suspicion of DUI and being involved in a hit and run. The suspect was transported to the police station, where he again refused to submit to a breath test.

Following a trial, the Department of Transportation (DOT) imposed a one year suspension on the suspect’s license for failure to submit to the breath test. The suspect appealed, arguing the officer did not have reasonable grounds to charge the suspect with DUI and therefore the suspension for failure to submit to a breath test was improper. The trial court sustained the suspect’s appeal and reversed the suspension. The DOT appealed to the Commonwealth Court of Pennsylvania, arguing the trial court erred when it held the officer did not have reasonable grounds to believe the suspect was driving under the influence of alcohol, and the suspension should be reinstated.

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