If you have been charged with a drinking and driving offense in Pennsylvania, it is critical that you remain silent and that you fully cooperate with the police, as anything you say or do may be used by the prosecution and the police to establish that you had a blood alcohol content (BAC) above the .08 limit at the time of your DUI stop. A conviction on these charges could result in life-altering consequences, including significant fines, possible jail time and the loss of your driver's license.
Contact Shaffer & Engle Law Offices, LLC, today for skilled legal support and zealous advocacy if you or a family member has been charged with a DUI. You have rights; we will work diligently to protect them by providing you with the highest quality representation possible.
Decades Of Experience With DUI Defense
The DUI defense lawyers at our firm have over 65 years of combined legal experience implementing effective case strategies on behalf of clients charged with drunk driving. We can represent you at every stage of the legal process, including:
- Full investigation of the traffic stop and charge
- Motions to dismiss or reduce charges
- All court appearances with you, or on your behalf
- Related traffic violations defense
- License revocation hearings
- License reinstatement process
Heightened Repercussions For DUI Conviction
The consequences of a DUI conviction are serious. In February 2004, the Pennsylvania legislature tightened the guidelines for DUI charges. The new law has increased the jail time for a first-time DUI with a BAC of .16 percent from two days to three days in jail. Additionally, subsequent convictions within 10 years now result in 90 days in jail, as opposed to 30 days under the old law. The BAC necessary to receive a charge of DUI or ARD are .02 percent for a juvenile offender, .08 percent for an adult and .04 percent for a commercial freight hauler or bus operator.
Our attorneys have an in-depth understanding of the laws that relate to DUI stops, testing, and arrests. They will effectively represent you in your drinking and driving case.
Elisabeth K.H. Pasqualini, Esquire, is an accomplished federal and state criminal defense attorney who has successfully defended clients against serious DUI charges.
DUI Offense Defined
Title 75 Pa.C.S. §3802(a) provides as follows:
An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
Thereafter, the DUI statute provides for an additional assessment when the defendant has either drugs or alcohol, or a combined amount of both, in his or her blood system under a three-tier system.
Actual Physical Control
The concept of "actual physical control" involves control of the movements of either the machinery of a motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion. In determining whether a person had actual physical control of the automobile to sustain a conviction for driving under influence of alcohol, the following factors should be considered:
- Whether the motor was running
- The location of the vehicle
- Additional evidence showing that the defendant had driven the vehicle
A determination of actual physical control of a vehicle, as required to sustain a DUI conviction, is based upon the totality of the circumstances. The fact that the car is not moving is not dispositive, however, of whether the appellant is "in actual physical control." In a DUI prosecution, the Commonwealth can use wholly circumstantial evidence to establish that a defendant was driving, operating or in actual physical control of a motor vehicle.
Showing that an intoxicated defendant started a parked car, without more evidence, is not enough to prove actual physical control necessary to sustain a DUI conviction; the Commonwealth must show some additional facts to illustrate that the defendant was a danger to public safety. In order to establish that the defendant was in "actual physical control" of the automobile, the Commonwealth must show something more than the defendant behind the wheel, with the motor running; there must be evidence to support an inference indicating that the defendant drove the vehicle while he or she was intoxicated.
For example, a defendant may be convicted of the offense of driving while under the influence of alcohol when the he or she proceeded downhill on a motorcycle without starting the engine, weaving the cycle from side to side, because with the exception of starting the engine, the defendant's actions were no different, and no less dangerous, than if the engine had been started.
In another instance, the defendant was in actual physical control of his motor vehicle and, therefore, was properly convicted for driving under the influence where:
- The defendant was found sleeping in his automobile on the berm of a road, with the engine running and his high beams activated, while a portion of his vehicle encroached on the road
- The defendant's vehicle was found down the road from an establishment where he had purchased alcoholic beverages.
Likewise, the evidence in a prosecution for driving under the influence of alcohol established that the defendant was in actual physical control of his vehicle where:
- The defendant was found in the driver's seat and alone in the vehicle.
- The defendant's vehicle was found at the bottom of an embankment about 100 yards off the side of the road.
- Although it was a cold night, the hood of the vehicle was warm.
Similarly, in a prosecution for driving under the influence, the evidence was insufficient to establish that the defendant was in actual physical control of the automobile in which he was found where:
- The defendant was found sleeping in the driver's seat of an automobile parked in the parking lot of a tavern.
- The automobile's motor was running and its headlights were on.
- The automobile was not moving
- It appeared that the defendant did not move the automobile after starting its motor.
Also, the defendant was in actual physical control of his automobile where:
- The automobile was stopped across a roadway obstructing traffic and with the lights on.
- The defendant was seated in the driver's seat.
- Although the engine was not running, the keys were in the ignition in the "on" position.
Note that the determination of whether a defendant is in "actual physical control" of the movement or operation of a vehicle is a decision based upon facts. Any decision that requires a factual determination must be made by a trier of fact, such as a judge or jury.
While these examples are from real cases, there are no two cases that are alike; these are only summaries. It is imperative that you obtain a confidential assessment of your own case prior to dealing with the police, Commonwealth agents, or prosecutors in your case.
At Shaffer & Engle Law Offices, LLC, we have successfully challenged many cases on the basis that the defendant was not in "actual physical control" of the vehicle. Call us at 717-827-4074 to discuss your case in more detail.
The Location Of The Offense Is Crucial
Because driving under the influence of alcohol is defined in the Vehicle Code as a "serious traffic offense," the offense must be committed on a highway or a trafficway. An essential element of the DUI statute is that the vehicle be operated on a highway or trafficway while the operator is under the influence of alcohol. The key term used to specify the type of travel for a highway or trafficway is if the path is and can be used or open to the public. Pursuant to the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. §102, the following terms have the definitions set forth:
- Highway. The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university, public or private school, or public or historical park.
- Trafficway. The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.
Compare these to the term "roadway" — that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the sidewalk, berm or shoulder even though such sidewalk, berm or shoulder is used by pedal cycles. In the event a highway includes two or more separate roadways, the term "roadway" refers to each roadway separately but not to all such roadways collectively.
For example, the defendant was properly convicted for driving under the influence arising from an incident which occurred in the parking lot of an 11-story apartment building in which he was a tenant since the parking lot was a "trafficway," notwithstanding signs which limited use of the lot to tenants.
There is authority that a university parking lot that is restricted for the use of properly registered student vehicles and designed for the parking of these vehicles is not open to the public for the purposes of vehicular traffic, thus is not a trafficway within the meaning of the Vehicle Code, so that a charge of driving while under the influence which took place in such a parking lot must be dismissed.
What Constitutes Being "Guilty" Of DUI?
The accused must be intoxicated or under the influence of intoxicating liquor to be guilty of driving while intoxicated (Learn more about alternative sources of alcohol found on the breath but not found in the BAC). One is intoxicated, within a statute prohibiting driving while intoxicated, when he or she does not have the normal use of his or her physical and mental faculties:
- By reason of the use of intoxicating liquor
- When he or she is affected by liquor to the extent that it is less safe for him or her to operate the automobile than it would be if he or she were not so affected
- When, by reason of such use, he or she is incapable of driving with the care essential to the safety of occupants of the vehicle and others
Under some specific statutes, however, proof that the defendant was "under the influence" or "intoxicated" is not required for a conviction of driving or being in actual physical control of a vehicle when one has a specified blood alcohol content. However, the test whether a motorist is driving under the influence of intoxicating liquor is not his or her fitness or unfitness to drive, but whether he or she has imbibed to an extent that his or her mental or physical condition is deleteriously affected.
Defining "Intoxication" Or "Under The Influence"
In Pennsylvania, an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that:
- The individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
- The alcohol concentration in the individual's blood or breath is at least .08 percent but less than .10 percent within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
- The alcohol concentration in the individual's blood or breath is .16 percent or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle (Learn more about alcohol and driving behaviors).
In addition, an individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
- There is in the individual's blood any amount of a Schedule I, Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or metabolite of such a substance.
- The individual is under the influence of a drug or combination of drugs to a degree that impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
- The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
- The individual is under the influence of a solvent or noxious substance in violation of the provision relating to the sale or illegal use of certain solvents and noxious substances.
Being Under The Influence Of Narcotic Drugs
Within the meaning of a statute making it an offense to operate a motor vehicle while under the influence of narcotic drugs, a person is under the influence of such drugs when he or she has taken a sufficient amount of them to cause him or her to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of those faculties. Stated another way, if a motorist is under the influence of a drug to the extent that it impairs the motorist's ability, in any manner, to operate his or her vehicle, the motorist is in a "drugged condition" and guilty of driving while intoxicated.
The legal use of a prescription drug is no defense, and generally there is no requirement to show intent in a prosecution for driving while under the influence of drugs. In addition, a prescription drug user may be convicted where he or she also consumed intoxicating liquor, the drugs making him or her more susceptible to the influence of the liquor.
Note that it is impossible to properly define and classify every element of the DUI statute in Pennsylvania as it relates to an individual's case. That is why it is essential to have an attorney with the knowledge and experience to defend your case review the criminal complaint, incident report and any charging documents supplied by the police in support of the case against you.
At Shaffer & Engle Law Offices, LLC, we take the time to properly investigate your case, review the charges, interpret the Commonwealth's case against you and provide a solid foundation and recommendation to alleviate the pain and anxiety that invade your life when you've been charged with a DUI. Don't let the situation handle you — you handle the situation!
Please select one of the links below to read additional information about the following topics:
- The role of the expert in DUI cases
- Pretextual stops
- Field sobriety tests
- Expungement of DUI charges and other offenses
Accelerated Rehabilitative Disposition (ARD)
ARD is a pre-trial diversionary program that allows first-time offenders (and in certain extreme cases, second-time offenders) to complete a probationary period, pay fees and court costs, complete community service, undergo counseling and complete the requirements of the Alcohol Safety School. At the conclusion of these, the individual's record is expunged (wiped clean).
The benefits to such a program are that the offender does not go to jail and there is a reduced license suspension period for Class C drivers (cars). In general a first-time DUI offender would be looking at the possibility of up to 72 hours in jail and the loss of driving privileges for a year. If the ARD program is acceptable, the offender would not go to jail and receive only 30-60 days of suspension.
ARD requirements vary from county to county. Most counties, such as Dauphin, Cumberland, York and Schuylkill, require a period of probation (usually 12 months), completion of community service, and the payment of fees and court assessments (approximately $1,000).
Contact A Skilled DUI Lawyer
Timing is critical in drunk driving cases. By neglecting to hire a knowledgeable attorney, you may be compromising the outcome of your case. If you or a family member has been charged with DUI or a related alcohol offense, contact the central Pennsylvania DUI lawyers of Shaffer & Engle Law Offices, LLC, immediately.
Visit our Criminal Law Blog to learn more about DUI charges in Pennsylvania.