There are a range of defenses that may be available to the charge of DUI. The applicability of any or all of them would depend on a very fact-specific inquiry, and it is important to obtain competent legal advice to delineate which, if any or several, may be available. One of the most fruitful areas of defense recently has been to raise the Birchfield case. Other potential defenses include, but are not limited to, the following (click one for more info):
- The vehicle stop itself was illegal.
- The officer who initiated the stop did not have jurisdiction to stop the vehicle.
- The driver was not operating the vehicle.
- The accused was not the operator of the vehicle.
- The vehicle was not driven on a public roadway.
- The officer who initiated the stop did not have jurisdiction to stop the vehicle.
- There was insufficient indicia of intoxication, or the driver did not appear to be “under the influence.”
- The driver’s blood alcohol content was not determined, there was no evidence of drugs, and the driver did not manifest “general impairment.”
- The driver’s blood alcohol content was not obtained or tested properly, or the results are scientifically unreliable.
- The DUI checkpoint did not comply with relevant rules and standards.
- The Field Sobriety Tests were administered incorrectly or the results are unreliable.
- The driver was not informed properly of the implied consent laws prior to refusing chemical testing.
The vehicle stop itself was illegal.
If the vehicle stop itself was illegal, then all of the evidence that was obtained as a result of that stop is inadmissible and may very well result in the DUI charges being dismissed. We have won a number of cases on this basis in both Montgomery County and Bucks County. Pursuant to the Fourth Amendment of the United States Constitution, and Article I, Section 8 of the Constitution of Pennsylvania, and case law emanating therefrom, there are three broad categories of permissible contact by a police officer:
- First is a “mere encounter,” which requires no basis on the police officer’s part, and is akin to any individual approaching another. In such a circumstance, the one being approached is under no obligation to comply with the requesting officer’s requests or demands, but is free to if he/she chooses to.
- Second is an “investigative detention,” or investigative stop. Section 6308(b) of the Vehicle Code authorizes police officers to make such a stop of a vehicle if based upon reasonable suspicion that a violation of the Vehicle Code (like speeding, failing to use a turn signal, or DUI) is occurring or has occurred.
- Third is a “custodial detention,” or arrest, which must be supported by probable cause that a crime is occurring or has occurred. Determining the requisite level of substantiation that is required is a product of the police officer’s actions; likewise, the permissibility of the police officer’s actions depends on the exact circumstances that give rise to his/her conduct. Such an analysis is very technical and fact-specific.
The officer who initiated the stop did not have jurisdiction to stop the vehicle.
The Municipal Police Jurisdiction Act (MPJA) governs the specific rules pertaining to where police officers may act, based upon attendant circumstances. If the initiating and/or the arresting officer did not comply with the specific requirements of the MPJA, then the DUI charges may be dismissed under certain circumstances or the level of suspicion required to make a stop may be increased.
The driver was not operating the vehicle.
Pennsylvania law requires that to determine that a driver was “operating” a vehicle for purposes of a DUI, there must be evidence that he/she was in “actual physical control of the movement of a vehicle.” This requirement may be met even if the vehicle was not in motion and was parked. Specific inquiry must be made into factors such as whether the engine was running, whether the key was in the ignition, and what position the key was turned to (for example, to operate only the lights and/or radio).
The accused was not the operator of the vehicle.
Obviously if the criminally accused was not operating the vehicle, he/she may not be held culpable for a DUI. The burden of proof always rests with the Commonwealth; raising doubt as to who was driving may be a viable defense. For example, if a vehicle is found abandoned after an accident, the owner of the vehicle was not necessarily the driver. Likewise, when police arrive on scene to find multiple occupants milling around a vehicle, it may be uncertain as to who was actually operating the vehicle. The police may rely on evidence other than personally witnessing the accused behind the wheel, but it is insufficient to assume who the driver was.
The vehicle was not driven on a public roadway.
It is a requirement for a DUI that the vehicle was operated on a public roadway or at a location that is open to the public for purposes of vehicular traffic. If this cannot be proven, such as when the vehicle was found operating on private property or not on a roadway, then the charge of DUI cannot be upheld.
The blood alcohol content was not obtained within two hours of the operation of the vehicle.
The test which generates the blood alcohol content value that is used to establish a DUI charge must statutorily be performed within two hours of the accused actually operating the vehicle. This two hour clock is ticking during procedures such as roadside questioning and field sobriety testing and transportation of the operator to the hospital for chemical testing. Otherwise, if police come upon a scene after the accused is no longer operating the motor vehicle, it is the Commonwealth’s burden of proof to establish a timeframe for when the vehicle was actually operated, not just when the operator was in the vicinity of the vehicle. Tests conducted more than two hours later can be admissible if the police can demonstrate a good reason for the delay, but they then need to relate the test result back to the time of driving.
There was insufficient indicia of intoxication, or the driver did not appear to be “under the influence.”
Once police are engaged with a driver, through either a vehicle stop or a mere encounter, they are taught to look for indicia of intoxication — signs that an individual is under the influence. These signs are some of the building blocks toward establishing probable cause for an eventual DUI arrest and pave the way to subsequent steps that also help build probable cause, such as the initiation of field sobriety tests or the administration of a portable breath test. Lacking sufficient indicia of intoxication, these subsequent steps may have been administered prematurely, and/or probable cause for the DUI charge itself may be challenged.
The driver’s blood alcohol content was not determined, there was no evidence of drugs, and the driver did not manifest “general impairment.”
Impairment due to alcohol is typically established by chemical testing yielding a numerical value for an individual’s blood alcohol content or the presence of drugs. However, it is possible to charge someone without a determined BAC or identified drugs under the general impairment statute. In order to do so, the Commonwealth must rely even more heavily on circumstantial evidence which demonstrates and eventually proves that the operator was under the influence. This evidence may come from an array of sources, including how the individual was driving or behaving, from through the words of the driver him/herself, from evidence of how much and when the driver had been drinking, or from instances such as an accident. Therefore, the charges may be defeated by attacking the clues pointing toward impairment.
The driver’s blood alcohol content was not obtained or tested properly, or the results are scientifically unreliable.
If the Commonwealth is relying on the result of a chemical test, be it by breath or blood, the result, crystallized as a numerical value of blood alcohol content, measures the percentage of alcohol detected in the individual’s bloodstream. The analytical process used to generate a concrete BAC from a given sample is a highly complex process and can be accomplished through a myriad of scientific tools and testing procedures. For blood tests, the process relies on a trained medical professional obtaining the sample correctly; the sample must be preserved properly through a chain of custody; the laboratory testing the sample must be an approved, registered facility; the devices used in the laboratory must be approved devices, tested and calibrated periodically; the technician must be trained in using said devices and must perform the tests correctly; and the results generated must be scientifically reliable. If any of these steps are lacking, the BAC may be challenged, and it is the Commonwealth’s burden to show each step was satisfied correctly in order to introduce the BAC numerical value as evidence. For breath tests, the process is more abbreviated, but the same principles hold true. The police officer obtaining the sample must be adequately trained in doing so and must do so correctly. The machine he is using must be an approved testing device and must have been calibrated and tested periodically. Look to the 2013 case of Commonwealth v. Schildt for more information about calibration and testing. Finally, if the subject tested is suffering from certain medical conditions like GERD or acid reflux, auto-brewery syndrome, or has undergone gastric bypass surgery, then the test results may not be reliable.
The DUI checkpoint did not comply with relevant rules and standards.
When police erect roadblocks and pull motorists over to check for DUIs, they may not do so arbitrarily. There are a number of rules that must be met for the checkpoint to be valid, and the officers must execute the process properly. Generally speaking, they must be systematic, non-discriminatory, and non-arbitrary in order to satisfy constitutional search & seizure principles. More specifically, examples of the multitude of rules applicable to them are as follows. The checkpoint must be stationary (as opposed to roving), well-marked, and must last for several hours. The officers manning the checkpoint may not have been the ones deciding where and when to create the checkpoint; the decisions must have been made by supervisory officials acting in an administrative or managerial capacity, not by patrol officers. The checkpoint location must be substantiated by statistics which indicate that the area is known to have had drunk drivers. The officers must select the target vehicles objectively and not selectively. The officers’ initial contact with each vehicle must be limited and specific. The officers may not stop a vehicle merely for legally avoiding the roadblock. There are many more standards, and each checkpoint and vehicle stop emanating thereof may be dissected based upon the rules the police officers must follow.
The Field Sobriety Tests were administered incorrectly or the results are unreliable.
FSTs (Field Sobriety Tests) themselves are very subjective, both in their administration and their scoring. Therefore, the subjective nature makes interpretation of them highly variable. The officer may not have explained the test properly. The officer may have chosen a poor site for the test to have been performed. The officer may have prematurely terminated the test. The officer may have been judging the test unreasonably. The officer may have made a determination that is scientifically or medically unreliable. The officer may not have accounted for individual circumstances on the part of the participant. The challenges available to FSTs are widely varied, and we have extensive experience in evaluating field sobriety testing and comparing those that were administered to those suggested in the NHTSA (National Highway Traffic Safety Administration) manual.
The driver was not informed properly of the implied consent laws prior to refusing chemical testing.
For a refusal under the implied consent laws to stand, the operator must have been adequately warned by the police officer that his/her operating privileges will be suspended if chemical testing is refused, and that upon conviction, plea, or adjudication for general impairment, enhanced penalties will apply. While there are a number of warnings a police officer is not required to provide, such as how long the suspension will last, the key warnings must have been clearly communicated. If the officer neglected to do so, the enhanced penalties may be challenged, as well as the suspension attributable to the refusal.
NOTE: All of the above listed defenses are subject to fact specific circumstances. They are intended only as a list of examples. There are many more defenses which are available to defending a DUI charge. Relying on competent, high quality legal advice is the only way to guarantee that the range of defenses available to a given case are applied correctly.