Central Pennsylvania DUI Offense Attorney
"Don't the police have to read me my rights before they ask me to do field sobriety tests or take a portable breathalyzer test?"
This is one of the most commonly asked questions of our clients charged with a DUI offense. At Shaffer & Engle Law Offices, LLC located in Millersburg and Harrisburg, Pennsylvania, we have over 65 years of experience representing individuals who have been arrested throughout Central Pennsylvania on DUI charges. We know your rights, let us help you protect them.
If you or a family member has been charged in a DUI arrest, or a failed sobriety test contact our firm today.
The "Miranda rights" is a common law rule set forth by the U.S. Supreme Court in Miranda v. Arizona, in which the Supreme Court held that absent a suspect's intelligent waiver of his pertinent constitutional rights, the suspect, before any "custodial interrogation," must be warned in clear and unequivocal terms that:
- They have a right to remain silent
- That any statements made may be used against them
- They have the right to consult with an attorney prior to or during such interrogation
- If they cannot afford an attorney that one will be appointed to represent them
"Custody" is defined as any time one has been deprived of his freedom of action in any significant way. While "interrogation" is defined as questioning initiated by a law enforcement officer for the purposes of eliciting a response. The Courts of Pennsylvania and other states have repeatedly held that an ordinary traffic stop is not "custody." Therefore, such rights do not apply to a motorist stopped for routine traffic offenses that are asked to complete a set of field sobriety tests or a PBT.
Elisabeth K.H. Pasqualini, Esq. understands the complexities of DUI charges and is ready to protect your rights in court.
On June 19, 2006 the Pennsylvania Superior Court determined under the amended Motor Vehicle Code that probable cause is no longer required for an officer to stop a vehicle. The new statute requires only that an officer have a "reasonable suspicion" that a Motor Vehicle Code violation is occurring before stopping any vehicle on the roads of the Commonwealth. Now, the police do not need to show that they possessed some reasonably trustworthy information that would lead a reasonably prudent person to believe that a crime has occurred. In fact, in order to show reasonable suspicion, all the police must have is little more than mere suspicion or an educated "hunch."
If you have been arrested for DUI or another drinking and driving related offense, your most important step is to remain silent and cooperative with the police. Under Pennsylvania drunk driving laws, 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 alcohol concentration limit at the time of the stop. A drunk driving conviction in Pennsylvania may result in significant fines, jail time, and the revocation of your drivers' license.
DUI Checkpoints and Roadblocks- Stops without Probable Cause
DUI checkpoints are still currently legal when conducted in accordance with judicially enunciated guidelines. However, their continued usage in Pennsylvania has come under sharp criticism as denoted by the differing opinions on the Pennsylvania Supreme Court on issues regarding their constitutionality. The term "roadblock" and "sobriety checkpoint" refer to any one of a number of "well-marked, stationary roadblocks conducted by the police for several hours at a time. The officers on the scene make a brief, suspicionless stops to check for driver intoxication, using a predetermined objective standard in determining which cars to stop. Such roadblocks are advertised in advance and are situated at roadway locations where drunk driving is known to have occurred in the past. Com v. Beaman , 583 Pa. 636, 880 A.2d 578, 579-580 (2005). These suspicionless invasions on the public have been determined to be constitutional because of the "compelling public interest" in their usage. Com v. Tarbert , 517 Pa. 277, 535 A.2d 1035 (1987). The following needs to be established by the Commonwealth in all roadblock cases:
(1) The initial stop must be brief and cannot include a physical search of the vehicle or its occupants;
(2) Motorists cannot be caught by surprise- there must be sufficient advanced visual notice of the impending roadblock, ie: signage, flairs, etc.
(3) The decision to hold a roadblock must be made by supervisory personnel and not the officer on the scene;
(4) The location and time of the roadblock must be based on statistical data regarding the incidents of prior drunk driving arrests in the locale;
(5) There can be no subjectivity in which vehicles are stopped-objective criteria such as every car or every third car must be made ahead of time and not based upon an "on-the-scene" patrol officer's determination.
TIP: While checkpoints are still legal, also legal is the use of driver avoidance techniques. A carefully and legally performed "U- Turn" or lane change is a way to avoid detection at a sobriety checkpoint and cannot, standing alone, be utilized by the police as a basis for a stop of the vehicle. Com v. Scavello, 557 Pa. 429, 734 A.2d 386 (1999) aff'd 703 A.2d 36 (Pa.Super. 1997); Com v. Kendall, 2001 Pa.Super. 42, 767 A.2d 1092 (2001).
Actual physical control of the movement or operation of a vehicle
The alcohol-related operating offenses of the Vehicle Code provide that a person is "driving" or "operating" a vehicle, but also includes circumstances where the offender is deemed to be in the "actual physical control of the movement or operation of" a vehicle. The term "operate" as used in the DUI statute has been construed as to require evidence that the offender had actual physical control of either the machinery of the vehicle or management of the vehicle's movement, but not necessarily evidence that the vehicle was in motion. Com v. McFadden , 377 Pa.Super. 4534, 547 A.2d 774 (1988). For instance, a suspect could be deemed to be in actual physical control under circumstances where the vehicle was in "park" with the engine running. Com v. Owen , 397 Pa.Super. 507, 580 A.2d 412 (1990). The Pennsylvania Courts have determined that the officer may infer from a totality of the circumstances as to whether a suspect was in "actual physical control" of a vehicle. Evidence that the vehicle is or was running and whether there is evidence that the motorist had driven to the location at some point prior to the officer's investigation. The best advice for a motorist that is intent on "sleeping it off" is to shut the vehicle's engine off, remove the keys from the ignition, and retire to the back of the vehicle- away from the driver's seat.
ARD stands for Accelerated Rehabilitative Disposition. It 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 which, their 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 Counties require a period of probation (usually 12 months), completion of community service, and the payment of fees and court assessments (approximately $1000).
At the DUI defense law firm of Shaffer & Engle Law Offices, LLC our Harrisburg DUI lawyers will vigorously defend your rights at every phase of a drunk driving charge, from the DUI arrest to the final disposition of your case. We will work diligently to keep you fully informed throughout the entire process.
Our attorneys have over sixty-five years of combined legal experience skillfully defending people against charges of underage drinking, DUI, ARD, DUS, and other drunk driving related charges. We have helped hundreds of people face these charges, and can help you.
If you, or a family member, has been arrested on a DUI or on another drunk driving related charge, contact the Harrisburg DUI lawyers at Shaffer & Engle Law Offices, LLC to talk about how we can help you.
DUI Detection Cues
It seems as if the officer pulled me over for no apparent reason? Was there a good reason....if not, what can we do about it?
There are some telltale signs that the police often believe are indicators that someone is driving impaired. There are certain ways in which a vehicle can be driven that can serve as an indicator to police, that a motorist is driving impaired, according to the information supplied by the Pennsylvania DUI Association. The Association, with assistance from the Pennsylvania Department of Transportation (PADOT) and the Traffic Institute for Police Sciences, has compiled a number of indicators that suggest a driver is impaired. There have been twenty (20) cues ( please see chart at alcohol and driving behavior associated with alcohol ) developed to assist police in identifying nighttime intoxicated drivers. The cues were developed from interviews with law enforcement specialists, an analysis of more than 1,000 DUI arrest reports, and field experience based on the correlation of cues in more than 600 patrol stops with motorists' blood alcohol content levels. According to the Association, "the cues represent the most systematically developed method available for visually predicting whether a vehicle operated at night is being driven by a DUI driver or a sober driver."
The number following each cue is "the probability," according to the Association, "that the driver exhibiting that cue has a BAC equal to or greater than .10%. For example, the 65 for the first cue ( see alcohol and driving behavior associated with alcohol ), turning with wide radius, means that chances are 65 out of 100 that the driver who turns with wide radius at night will have a BAC equal to or greater than .10 percent." (please note that at the time this study was conducted, the BAC level at which a driver is presumed to be legally incapable of safe was .10%; that level has been reduced in PA to .08%).
Certainly, as with any general assertion of a BAC level due to the exhibition of a cue, there are always exceptions to the norm. As noted in the study, one may have a 40% chance of having a BAC of .10% at night if the motorist "slowly responds to traffic signals" ( see alcohol and driving behavior associated with alcohol). However, a 40% chance does not, in and of itself, equate to a "reasonable suspicion" that a driver is incapable of safe driving. ( Please see probable cause at DUI Arrests). Please keep in mind, that an arresting police officer conducting a traffic stop must have a "reasonable suspicion" and not an "inarticulable hunch" that some violation of the motor vehicle code has occurred. The officer cannot and should never simply quote a study for his reasoning for pulling someone over at night. This is where it is crucial to have an experienced attorney, such as the attorneys at Shaffer & Engle Law Offices, LLC, represent you at the preliminary hearing and all hearings thereafter. ( Please see After Your Arrest for a description of the legal proceedings that will take place after your arrest). It is crucial to determine if there is a constitutional or statutory basis upon which to claim a violation of your rights and to properly suppress the evidence relating to your stop and ultimate arrest.
Please contact our firm for a free consultation and legal assessment of your DUI arrest. 800-491-9506 .
Learn more about DUI charges in Pennsylvania by visiting our Criminal Law Blog.