Here are a few questions that I have recently been asked by clients and potential clients:

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.