Despite what we are led to believe, drinking and driving was not the leading contributing factor to traffic fatalities in Allegheny County in 2009 (the latest year for which statistics are available).  Of the 58 traffic fatalities in Allegheny County in 2009, an occupant not wearing a seatbelt was a contributing factor in 28 cases, or nearly half.  That is an amazing number to me and just goes to show how you can take a simple step such as wearing your seatbelt to reduce your chance of injury or death when in a motor vehicle.  Drinking and driving was a contributing factor in 13 of 58 traffic fatalities in Allegheny County in 2009.

Statewide traffic fatalities in 2009 show that failing to use a seatbelt was a contributing factor in 36 percent of the fatalities.  I do not know why there is such a difference in the percentage of unrestrained fatalities between Allegheny County and the rest of the state, but in this day and age, it makes absolutely no sense why anyone would ever get into a motor vehicle and not wear a seatbelt.  

So, if you are going to be drinking during this upcoming holiday weekend or during the holiday season, please do not drink and drive.  Remember, it's always a cheaper and more pleasant overall experience to call a friend, relative or a cab than it is to take a ride in the back of a police car. Also, please remember to wear your seatbelt, make sure your passengers wear their seatbelts and make sure your child seats are properly installed.

1. Do police need to know your Blood Alcohol Contration (BAC) to charge you with DUI in Pennsylvania?

No, the police do not need to know your BAC to charge you with DUI. The most common scenario in which this arises is if a driver refuses to take a breath test or provide a blood sample.  If someone refuses to provide a chemical sample, they are most likely going to be prosecuted for DUI.  The police must then rely upon the personal observations they observed such as erratic driving, strong odor of alcohol, failed field sobriety tests, etc.

2. Do I have to do all of the field sobriety tests that the officer wants me to do? 

No, in fact, you are not required to perform any field sobriety tests, including the preliminary breath test.  All you do when you take a field sobriety test is give the officer ammunition to use against you when you are prosecuted for DUI...and make no mistake about it, by the time the officer has you out of your vehicle, 99 times out of 100 you are going to be arrested for DUI. Even if you thought you did well on the field sobriety tests.  You have the right to refuse field sobriety tests.   However, and this is important, please tell the officer politely that you do not want to do the field sobriety tests.  There is no need to be argumentative or confrontational because, by doing so, you run the risk of escalating the situation and making it even worse.

3. Why is a preliminary (or portable) breath test result not admissible in court?

Preliminary breath test results are not admissible as evidence against you because these breath testing instruments are not usually calibrated or checked for accuracy as rigorously as the evidentiary breath testing instruments that are generally kept at the police station.  The only thing that the officer may say about the PBT is that it tested positive for the presence of alcohol.

4. If I am charged with driving under suspension DUI-related, may I receive a sentence of probation?

No, driving under suspension DUI-related carries with it a minimum mandatory jail sentence of60 days in jail, plus a $500 dollar fine.  However, if your BAC is .02 or higher, the penaltiesincrease. A first offense with a BAC of .02 or higher carries with it a minimum mandatory 90 days in jail, plus a $1,000 fine.  A second offense with a BAC of .02 or higher carries with it a minimum mandatory jail sentence of 6 months, plus a fine of $2,500.  A third offense with a BAC of .02 or higher carries with it a minimum mandatory jail sentence of 2 years, plus a $5,000 fine.  "Minimum mandatory" means that the judge does not have the discretion to give you less jail time than called for by the statute.  One size fits all sentencing is one of the "benefits" of the "tough on crime" stance that all politicians have been required to take over the last 30 or so years.  These types of laws have lead to our society having overcrowded jails and prisons and have created an enormous burden on taxpayers to continue to build jails and prisons.

5. If I refuse a blood or breath test, can I keep my license?

No, when PennDOT issued you your driver's license, you agreed to what is known as the "Implied Consent Rule."  What this means is that in exchange for PennDOT giving you adriver's license, you agreed to provide a breath or blood sample if a police officer ever arrested you for DUI.  I have no recollection of knowing anything about this rule when I got my driver's license 26 years ago. Unless you can convince a Common Pleas Court judge that you did not knowingly refuse the test, you will lose your license for 1 year for a first offense and longer for subsequent offenses.  If you do not believe that you knowingly refused to provide a breath or blood sample, you have the right to appeal your driver's license suspension.  When you recevie your suspension notice from PennDOT, you have 30 days to appeal it.  Appealing it means that you get to keep your license until you have your appeal hearing and the judge issues a final decision. In Allegheny County, it take a few months from the time that you file the appeal until your hearing date.

6. How do the police know that I need to have an ignition interlock system on my vehicle?

When you are required to use an ignition interlock system, you must apply for a restricteddriver's license.  This license clearly states that you are required to use an ignition interlock system when you are driving.  So, if an officer stops you, he/she will be able to see on your driver's license that you need to be driving with an ignition interlock system.  If you do not have your driver's license on you, when the police run your name in the computer to see if you have a driver's license, they will be informed that you have a restricted, ignition interlock driver's license.  If you are caught driving without an interlock ignition system, a first offense carries with it a sentence of up to 90 days in jail (this is a not a minimum mandatory sentence), a fine between $300 and $1,000 and an additional 1-year suspension of your driver's license.  These penalties only increase if you have a BAC of .025 or higher when you are stopped.

7. Why am I being treated as a minor even though I am over the age of 18?

In Pennsylvania, for purposes of a DUI or underage drinking, a minor is a person under the age of 21. If you are 21 or older, the law states that you are driving under the influence of alcohol if your BAC is .08 or higher.  For a minor, the level is .02 or higher. 

Problems in Maintaining Proper Lane Position:

1. Weaving
2. Weaving Across Lane Lines
3. Straddling a Lane Line
4. Drifting
5. Swerving
6. Almost Striking a Vehicle or Other Object
7. Turning With a Wide Radius, or Drifting During a Curve

Speed and Braking Problems:

1. Stopping Problems (Too Far, Too Short, Too Jerky)
2. Accelerating for no Reason
3. Varying Speed
4. Slow Speed.

Vigilance Problems:

1. Driving Without Headlights at Night
2. Failure to Signal a Turn or Lane Change, or Signaling Inconsistently With Actions
3. Driving in Opposing Lanes or the Wrong Way on a One-Way Street
4. Slow Response to Traffic Signals
5. Slow or Failure to Repsond to Officer's Signals
6. Stopping in the Lane for No Apparent Reason.

Judgment Problems:

1. Following Too Closely
2. Improper or Unsafe Lane Change
3. Illegal or Improper Turn (too fast, jerky, sharp, etc.)
4. Driving on Other than the Designated Roadway
5. Stopping Inappropriately in Response to an Officer
6. Inappropriate or Unusual Behavior
7. Appearing to Be Impaired.

If you were stopped by the police and arrested for DUI, chances are one of these cues are going to be the reason that the police stopped you.  However, what I find interesting about the 24 cues are that there are some other other classic moving violations that are not included, such as failing to stop for a red light or stop sign, speeding and u-turns, and no mention whatsoever of equipment violations such as having a burned out headlight or taillight.  Supposedly, these were not included because they do not correlate to the driver’s BAC being over the .08 limit.  However, I sure have many clients who were stopped for failing to stop for a red light, speeding or having an equipment violation and were eventually arrested for DUI.  It makes me wonder about the validity of these 24 cues, much like the studies that I mentioned in my earlier post on standardized field sobriety tests that call into question their validity.

A first-time DUI offender sentenced to house arrest is a person who was not eligible for the ARD program and must serve a mandatory jail sentence.  Many times, this jail term can be served as house arrest instead.   However, so many people in Allegheny County are wearing these ankle bracelets, the system cannot keep up.  In fact, it is not unusual to get sentenced for a first or second time DUI and have to wait several months to serve the house arrest sentence because an ankle bracelet and the monitoring equipment are not available at the time of sentencing.

Cue in the Hotel DUI.  This is a 4 day program in which a first-time offender does not have to serve a jail or house arrest sentence.  Instead, Allegheny County plans on renting space in local hotels and first-time offenders will check in for a 4-day stay and receive their alcohol evaluation, complete mandatory classes and start whatever treatment has been ordered for them. 

This is a novel concept and it will be interesting to see if it works.  Of course, all this could be avoided if the words "minimum mandatory" could be removed from DUI offenses and judges could have discretion again in sentencing, but that is a topic for another day.

It's not very comforting to know that field sobriety tests are about as effective in detecting drunk drivers as flipping a coin.  However, this is much more comforting than the results of a 2007 study by the International Council on Alcohol Drugs & Traffic Safety (ICADTS), which showed that police officers correctly perform Standardized Field Sobriety Testing only 3% of the time.  Standardized Field Sobriety Tests (or SFST's) are a battery of three field sobriety tests and require specialzed training.  These tests are the Horizontal Gaze Nystagmus test (the HGN - or follow the pen with your eyes test), the Walk and Turn test (WAT) and the One Leg Stand test (OLS).  Many departments in the area now use these tests. 

The 2007 study analyzed 350 videotaped encounters of police officers administering SFSTs to suspected drunk drivers.  The results are shocking.  The HGN test was properly administered 7% of the time.  The WAT test was properly administered 19% of the time.  The OLS was properly administered 50% of the time.  What is even worse than these results is the correct percentage when looking at the battery of tests given in each of the 350 encounters (and remember, the idea of SFSTs is that these three specific tests are to be given together).  The battery of tests was properly administered only 3% of the time.  That is not a typo.

These tests simply do not predict with any semblence of accuracy whether a person is intoxicated.  For a police officer, administering them in a controlled, classroom setting is not quite like administering them at 3:00 a.m. in a dimly lit area when it's 20 degrees out and you're exhausted from being in court all day.