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An appeal in the Pennsylvania Superior Court claimed that a field sobriety test conducted on a snow-covered road, along with breath testing conducted without the 20-minute observation period required by Pennsylvania law, were insufficient to support a conviction for driving under the influence (DUI). The defendant/appellant in Commonwealth v. Favinger challenged the sufficiency of the evidence against him and the legality of the traffic stop that led to his arrest. The Superior Court ultimately affirmed the verdict and sentence, but its opinion offers a useful overview of the different ways that prosecutors may establish that a defendant was impaired by alcohol in a DUI case.

A state trooper pulled the defendant over at about 3:20 a.m. on January 29, 2011. The trooper testified that the defendant continued to travel about half a mile after the trooper activated his emergency lights, finally stopping in a driveway. He claimed that he detected the odor of alcohol, and that the defendant’s eyes were “bloodshot and glassy.” The defendant agreed to field sobriety testing, which the trooper claimed he failed. Breath testing conducted after the defendant’s arrest showed blood alcohol content (BAC) of 0.128 percent. The defendant was later convicted of DUI–general impairment and DUI–high rate of alcohol.

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A DUI defendant appealed her conviction of driving under the influence of alcohol (DUI), highest rate of alcohol, to the Pennsylvania Superior Court, claiming that the charge filed against her was defective. Pennsylvania law and the U.S. Constitution require prosecutors to provide specific information to defendants, including the date of the alleged offense, to allow them to prepare a defense. The defendant claimed that the information charging her with DUI stated the date of the offense incorrectly and that she therefore lacked adequate notice of the charge against her. The Superior Court, ruling in Commonwealth v. McKee, denied the appeal. It held that prosecutors supplemented the information prior to trial and that the error did not prejudice the defendant’s case.

The defendant did not dispute the facts that directly resulted in her DUI conviction. Police stopped her vehicle at about 11:40 p.m. on November 21, 2011, placed her under arrest, and transported her to a State Police barracks. A trooper administered a breath test at about 12:15 a.m., which reportedly showed blood alcohol content (BAC) greater than 0.16 percent. Prosecutors filed an information charging her with DUI at the highest rate of alcohol in March 2012. The information stated that the offense occurred on November 22, 2011, not November 21.

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A Pennsylvania man appealed his conviction of driving under the influence (DUI)—incapable of safely driving and DUI—highest rate of alcohol, arguing that the arresting officers lacked reasonable suspicion of a crime when they stopped his car, and that the verdict was against the weight of the evidence. The Pennsylvania Superior Court ruled, in Commonwealth v. Landis, that the defendant was entitled to a new trial on the “weight of the evidence” argument. It held that the trial court abused its discretion by incorrectly applying the law.

Pennsylvania State Troopers pulled the defendant over on State Route 35 at 2:40 a.m. on April 4, 2010, after allegedly witnessing his vehicle weave within its lane and cross the center double-yellow line several times. The defendant admitted to having several drinks. The troopers arrested him and took him to a nearby hospital, where a medical technician drew blood and conducted a single chemical test using an Avid Axsym machine. The test showed blood alcohol content (BAC) of 0.164 percent.

At trial, the defendant filed a motion to suppress for lack of reasonable suspicion, which the trial court denied. He challenged the reliability of the Avid Axsym machine. The medical technician testified that the machine had a ten percent margin of error, which was not considered in its BAC report. The defendant argued that the Avid Axsym machine was less reliable than a gas chromatography test, and that his BAC result based on a single test was unreliable. A jury found him guilty, and the trial court sentenced him to a prison sentence of ninety days to five years less one day. Continue reading

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The question of whether an appellate court could reverse a DUI conviction based on its own interpretation of the evidence recently came before the Indiana Supreme Court, demonstrating the critical importance of challenging police testimony as early as possible. The defendant argued that video footage from a sheriff’s deputy’s vehicle camera contradicted the deputy’s testimony, making the traffic stop unconstitutional and requiring the court to dismiss the case. The trial court disagreed, but the appellate court found the video evidence compelling. The state supreme court affirmed the verdict ruled in Robinson v. Indiana, ruling that it should defer to the trial court’s findings of fact in the absence of a significant constitutional concern.

A sheriff’s deputy testified that he pulled the defendant over after observing her vehicle veer off the right side of the road twice at about 1:00 a.m. on October 15, 2011. A video camera in the deputy’s car recorded the stop. The defendant reportedly failed three field sobriety tests, and she admitted to drinking one beer and to having marijuana on her person. A chemical test at the jail showed blood alcohol content of 0.09 percent, just above the legal limit. Prosecutors charged her with DUI and several other offenses.

The defendant moved to suppress the evidence obtained from the traffic stop and to dismiss the case. Two U.S. Supreme Court cases, 1968’s Terry v. Ohio and 1996’s Ornelas v. United States, have established that the Fourth Amendment requires “reasonable suspicion” of a crime in order to stop someone’s vehicle. The defendant alleged that the video footage from the deputy’s car showed that her vehicle never veered off the road like the deputy claimed, and that he therefore never had reasonable suspicion. Continue reading

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A Pennsylvania judge ruled in February that prosecutors had produced sufficient evidence to support two counts of aggravated assault by vehicle while driving under the influence, which arose from a single-car accident in October 2010. The defendant had moved to dismiss the aggravated assault charges, claiming that the injuries did not rise to the level of “serious bodily injury” as required by Pennsylvania law. The aggravated assault by vehicle statute presents another interesting issue for prosecutors, as it states that a defendant must have acted “negligently.” The question of whether negligence, or criminal negligence, is an essential element of this offense remains unsettled by Pennsylvania courts.

According to the Pittsburgh Tribune, the defendant, who was a college sophomore at the time, was driving with two passengers in his car on October 15, 2010. He was traveling at about sixty-five miles per hour, according to police, when the car struck a tree. Court records state that one passenger suffered multiple injuries, including a broken leg; while the other passenger suffered a fractured spine and head injuries. Police claim that the defendant had blood alcohol content of 0.178 percent.

Prosecutors charged the defendant with driving under the influence – general impairment, as well as first-offense driving under the influence as a minor. They also filed two charges of aggravated assault by vehicle while driving under the influence, as well as reckless driving, unsafe speed, purchase of an alcoholic beverage by a minor, and operating a motor vehicle as a minor with alcohol in their system. The defendant moved to dismiss the aggravated assault charges, claiming that the injuries did not present “substantial risk of death,” “permanent disfigurement,” or extended loss of use of a limb or organ, as required by statute. The court disagreed. Continue reading

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The Commonwealth Court of Pennsylvania recently considered the appeal of a license suspension for refusal to submit to chemical testing. The defendant in Commonwealth v. Campbell denied that she refused testing, and the record shows that she consented to breath testing and submitted several samples. Rather, she argued that the police did not give her enough opportunity to comply with the testing requirement. The court reviewed the elements that the state must prove in order to prove refusal. It affirmed the trial court’s order, meaning that a driver who agrees to submit to chemical testing could still be charged with refusal.

Police arrested the defendant shortly before midnight on February 12, 2012. The arresting officer administered a portable breath test, which reportedly showed blood alcohol content (BAC) of .18 percent. He concluded that the defendant had been driving under the influence of alcohol, placed her under arrest, and took her to a sheriff’s office with a chemical testing facility.

At the sheriff’s office, a deputy sheriff reportedly read the Implied Consent Law warnings to the defendant “several times,” and the defendant stated that she understood the warnings and agreed to submit to chemical testing. The deputy testified in court that he used a “BAC Data Master” for breath testing. The deputy testified that the defendant failed to perform the test properly, despite his instructions. She allegedly only breathed into the mouthpiece for four to five seconds, which was not enough time to collect a sample. The deputy allowed her to try again, but claimed that the second sample was also insufficient. His supervisor prevented him from giving her a third try. Continue reading

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A defendant was convicted of DUI in the Court of Common Pleas of Schuylkill County, Pennsylvania after a bench trial. He appealed the conviction and sentence to the Superior Court of Pennsylvania, questioning whether the arresting officer had probable cause to request a blood test, and whether the court violated the defendant’s due process rights by denying him a jury trial. The court dismissed the appeal, however, because the defendant did not raise these issues with the trial court, and therefore did not preserve them for appeal. Comm. v. Halcovage, No. 564 MDA 2013, memorandum (Penn. Super. Ct., Jan. 7, 2014).

According to the court’s memorandum, a police officer stopped the defendant’s vehicle just after 11:00 p.m. on July 15, 2011 after observing him speeding. The officer claimed that he observed telltale signs of intoxication, including “red, blood-shot and glassy eyes” and “a strong odor of an alcoholic beverage.” The defendant allegedly admitting to drinking “one or two beers.” He allegedly failed a field sobriety test, and a portable breath testing device showed blood alcohol content (BAC) of 0.13 percent. The officer took him to the emergency room at Schuylkill Medical Center, where he consented to having blood drawn. The blood sample also showed 0.13 percent BAC.

The defendant was charged with DUI – general impairment and DUI – high rate of alcohol. The court conducted a bench trial on December 6, 2012 and found him guilty of both DUI charges. On March 5, 2013, it sentenced him to forty-eight hours to six months in prison. The defendant submitted a statement of error, as required by Pennsylvania Rule of Appellate Procedure 1925(b), identifying five points of error. The trial court ruled on all five points, and the defendant filed an appeal. Continue reading

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The state can charge a person with DUI even without direct evidence of intoxication, as demonstrated by the case of a Texas man who was arrested and charged with DUI despite negative breath and blood tests. Prosecutors eventually dismissed all of the charges against him, but police continue to defend the decision to arrest and charge him, arguing that he could have been impaired by a substance that did not show up on the blood test. Pennsylvania law states that blood alcohol content (BAC) of 0.08 percent or higher constitutes “impairment,” but it also prohibits driving while under the influence of any amount of alcohol or a controlled substance that makes safe driving impossible. Proving impairment is generally easiest for the state with BAC evidence, but it is not necessarily required.

The arrest occurred on January 13, 2013 in Austin, Texas, when police pulled the man over for allegedly running a stop sign. He was taken into custody and given a breath test, which showed BAC of 0.00 percent. He admitted to having one drink earlier, but the test results suggest that no significant amount of alcohol was present in his bloodstream. He agreed to submit to a blood test, which police say screens for seven different drugs, including alcohol. The results were not available for several months, but also showed no measurable amount of any of the seven drugs.

The man was nevertheless charged with DUI, known in Texas as DWI. Police claimed that he failed a field sobriety test at the time of his arrest, with official reports stating that the arresting officer observed him swaying and needing to use an arm to support himself while standing on one leg. This behavior could have multiple other possible explanations besides intoxication, such as a condition affecting one’s equilibrium or simple fatigue, but prosecutors apparently felt this was enough to support a DUI case. More than a year after the arrest, they finally dismissed all charges. Continue reading

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Prosecutions for driving under the influence (DUI) in Pennsylvania present multiple challenges for both courts and defendants. Because of the sheer number of criminal cases handled by Pennsylvania courts, defendants must often wait months or even years for a resolution. This can be a significant burden for a defendant who may require services or assistance that the criminal justice system, which often still places an emphasis on punishment, is not always equipped to provide. Several counties around the state have created special programs within their court systems to deal with these issues. Some counties have courts that focus specifically on DUI cases, while others more generally target cases involving alleged substance abuse. These programs may help certain defendants obtain needed services, a quicker resolution of their cases, and the possibility of a dismissal of all charges.

Judges and other officials in several counties investigated the volume of DUI cases moving through the courts. They discovered that defendants were not only accused of repeat DUI offenses, but of getting arrested for alleged DUI while out on bail during a pending DUI case. They sought to create programs to not only speed up the adjudication process, but also provide the opportunity for additional services for people with multiple arrest, charges, or convictions.

Officials in Blair County started the Accelerated Rehabilitative Disposition (ARD) program in order to address these issues. It is a pre-trial diversion program that puts a defendant under the county probation office’s supervision and assigns a treatment team. If the defendant abides by conditions set by the court, which might include treatment and education programs, as well as staying out of trouble for a specified period of time, the court dismisses the DUI charges. The defendant can apply for an expungement, meaning that all of the records of the case, from the arrest to the end of the court proceeding, are removed from court and police files. By 2011, not long after the ARD program started, the county reported that it was processing ninety-five percent of its DUI cases in six months or less, when the average case used to take more than a year. Continue reading

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A bill currently pending in the Pennsylvania Legislature, SB 1036, would significantly expand the use of ignition interlock devices in DUI cases. This is a device that tests breath alcohol content (BAC) and prevents a vehicle from starting if the driver’s BAC is above a certain level. Currently, state law only requires the device for individuals with more than one DUI conviction. The bill, if enacted, could actually enable people to begin driving again sooner after a DUI-related license suspension than before. At the same time, however, the bill has the support of Mothers Against Drunk Driving, an organization which rarely supports legislation that makes things easier for DUI defendants.

State law defines an “ignition interlock system” as one that requires a driver to give a breath sample before starting the vehicle, and which prevents operation of the vehicle if the breath sample shows BAC of 0.025% or higher. The device is required for drivers with two convictions for DUI within a ten-year period, drivers whose license has been suspended for refusal to submit to chemical testing while under arrest, or who violated a previous order to use an ignition interlock system. Drivers must have the device professionally installed, and they are responsible for paying a monthly service fee. Once the state has issued a restricted license requiring ignition interlock, the driver must use the device for at least one year before obtaining an unrestricted license. Drivers with only one DUI conviction are not required to use an ignition interlock device at the end of their license suspension.

The bill would add a new section to the chapter on licensing of drivers to create an “ignition interlock limited license.” Under current law, a first conviction for DUI can result in license suspension of twelve to eighteen months. A person’s license can also be suspended for refusing to submit to chemical testing. Instead of an automatic license suspension, the proposed new law would give drivers the option of continuing to drive with the use of an ignition interlock device. The amount of time an individual has this type of license would be credited to any other period of time they would be required to have an ignition interlock system under current law for the same alleged offense. Continue reading