A Driving While Imbibing Scenario and Frequently Asked Questions

By: William E. Moore

Jim was driving home from an office party at 11:00 p.m. on Saturday night. He was stopped by a police officer on a suburban two lane road. The officer said Jim (any of the following could apply: failed to come to a complete stop at a stop sign, was exceeding the speed limit, had a burned out tail out, was weaving across the center line, was driving with his high-beams on in the face of oncoming traffic or struck the curb.) The officer asked Jim for his driver's license and registration. The officer said Jim (any of the following: smelled of alcohol, had blood shot eyes, had slurred speech and/or was slow and uncoordinated in finding his identification.) The officer asked Jim to step from the vehicle and perform Field Sobriety Tests. Following the Field Sobriety Tests, the officer asked Jim to submit to a breath sample at the scene with a small breathalyzer called a PBT (Portable Breath Test). Following this, the officer placed Jim under arrest for D.U.I. and transported him to the local hospital for a blood draw to test the alcohol level in his blood.

The following Frequently Asked Questions arise:

  1. Does the officer have the authority to stop Jim's vehicle?
  2. Does Jim need to submit to field sobriety tests?
  3. Following Jim's arrest, does he need to submit to a blood test?
  4. What penalties does Jim face if he is convicted?
  5. If convicted, what will happen?
  6. Do I need an attorney?

Police officers have the authority to stop any vehicle for which they have a reasonable belief the driver has violated the Vehicle Code. The driving transgressions and mistakes listed in the above scenario all give the officer a legal reason for stopping Jim's vehicle. Equipment violations such as a burned out taillight or headlight also are legal reasons to stop Jim's vehicle. Once Jim's vehicle is stopped, the officer can request Jim to provide identification and proof of ownership and/or insurance coverage for the vehicle Jim is operating. The observations made by the officer during this interaction with Jim give rise to legal justification for further inquiry as to Jim's sobriety/fitness to operate the motor vehicle.

When the officer asked Jim to perform Field Sobriety Tests, Jim did have the right to refuse the Field Sobriety Tests and the Preliminary Breath Test at the scene. However, if Jim refused to participate, the officer could base his arrest of Jim on the odor of alcohol and his observations of Jim at the traffic stop. The officer could testify to his years of experience and numerous times he has stopped individuals who had been operating a motor vehicle under the influence. The officer now has probable cause to arrest Jim for Driving Under the Influence and request he submit to a test of his blood or breath. The choice of test is the officer's and not Jim's. Most departments travel to a local hospital to get a blood draw. Some departments use PennDOT-approved breath machinery which takes a sample of the air in the lungs and determines a blood alcohol content.

After the police officer arrests Jim and asks Jim to submit to a blood test or a breath test, Jim should comply with his/her request. Under the Pennsylvania Vehicle Code, if the officer has reasonable grounds to request such a test and Jim refused the test, PennDOT will suspend Jim's driving privileges for 1 year. If ultimately Jim is found not guilty of the Driving Under the Influence charge, Jim's license is still suspended for 1 year for refusing the test. If Jim is ultimately convicted of the Driving Under the Influence charge, Jim will lose his license for an additional year for the conviction, thus, Jim is looking at a 2 year suspension instead of a 1 year suspension because Jim refused the test.

For a first time D.U.I. offense in which there was no accident resulting in bodily injury, Jim may qualify for a program for first time non-violent offenders called Accelerative Rehabilitative Disposition (A.R.D.). If Jim qualified for this program, in all probability, Jim will lose his license for 1 or 2 months and not serve any jail time. The reason I say "in all probability", is because if Jim's blood alcohol level is between a .08 and under .10, there is no license suspension for the first offense. The vast majority of DUI offenses do not have blood alcohols that low. If Jim does not qualify for A.R.D., there are mandatory jail sentences for a first offense from 48 hours for a blood alcohol level between .10 and under .16 and 72 hours for blood alcohol level of .16 or higher. These are mandatory minimum sentences the Court must impose. If there are aggravating circumstances surrounding the offense, the judge could then impose a more severe sentence. Although the period of license suspension for an individual who participates in the A.R.D. Program has been standardized across Pennsylvania, each county is allowed to have their own requirements for who qualifies for the A.R.D. Program. It is important to be sure the attorney who represents you is familiar with the A.R.D. guidelines in your particular county.

For second and subsequent offenses, the penalties escalate. Again, this depends upon the blood alcohol level and whether this is a second or subsequent offense within a 10 year period. People who do not receive A.R.D. and are convicted in a first offense without an accident, generally receive a 48 or 72 hour sentence. The time is served in the local county prison. Sentences for a second or third conviction within a 10 year period can result in sentences of 30 days to 1 year in prison. Some counties have house arrest programs. If one qualifies for a house arrest program, the jail time can be served in one's home and the individual is allowed to go to work everyday, but must return and remain at home after work. Each county has its own criteria in allowing someone to participate in a house arrest program.

An attorney can advise you whether or not you have a defense to the charge of Driving Under the Influence. The officer may have stopped you without reasonable suspicion of your violating the Vehicle Code, or there may be a question about the blood/breath test. These matters must be explored through legal procedures which an attorney is trained to handle. The attorney familiar with the county in which your charge has been filed will be able to assist you in qualifying for A.R.D. or getting you a favorable disposition. Proceeding through the criminal justice system without representation is risky.

In the scenario above, an attorney can advise Jim whether or not the police officer had a reasonable belief Jim was in violation of the Vehicle Code at the time he stopped his vehicle. He would also be able to review the Field Sobriety Tests administered to Jim. The attorney can examine the blood/breath results and make inquiries into the allowable variance which could result in a lesser sentence and lesser jail time. If there are legal questions as to the circumstances of the vehicle stop, an attorney can file motions in court challenging the stop which could result in the Commonwealth's evidence being suppressed (thrown out).

The criminal justice system is complicated. Be sure the attorney you hire is familiar with your type of case and the court where the charges are filed. Our attorneys have defended thousands of criminal cases. Call us for a free consultation.