Probable Cause in DUI Cases — What do police officers look for when deciding whether to make a vehicle stop for a suspected DUI?

The following is a list of symptoms — in descending order of probability — that police are trained to look for in evaluating whether a person is driving while intoxicated (DUI). The list is based upon research conducted by the National Highway Traffic Safety Administration (NHTA):

• Turning with a wide radius
• Straddling center of lane marker
• “Appearing to be drunk”
• Almost striking object or vehicle
• Weaving
• Driving on other than designated highway
• Swerving
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane FST’s
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

PA DUI Law: If I am stopped by a Police Officer in PA for a suspected DUI and am asked if I have been drinking, what should I say?

You are not required to answer potentially incriminating questions during a DUI – or any other – investigation. A good reply would be to politely say “I would like to speak with an attorney before I answer any questions”.

The problem with answering this question is that there is no good answer if a person has been drinking. If you answer “no” and a later chemical test shows that you had been drinking, a prosecutor will argue that you were being dishonest at the scene. If you answer something along the lines of “only two or three” drinks, you have provided police with the probable cause to continue the DUI investigation, and will still look dishonest if the chemical test shows a result higher than two or three drinks. And, obviously, if tell the police you have had a lot to drink, your comments may be used against you at trial.

What Do I Do If I am Pulled Over By Police?

The Law Office of Erik Petersen, has successfully defended hundreds of clients against charges of drunk driving (DUI) since 1999. Rather than panic when you get involved in a police situation, try to stay calm and seek to do the following:

If You Hear a Siren

Pull over to the side of the road as soon as is safely possible. Make it as easy as possible for the officer to safely approach you. Do not get out of your car. Roll down your window. Turn off your engine. Make sure your hands are visible as officers are on guard against hands that may be carrying weapons.

Be Polite, But Do Not Speak to the Officer Unless He or She Speaks to You

Let the police officer tell you what he or she wants. Do not ask questions such as, “What is the problem?” or “Why did you pull me over?” When you are asked for your driver’s license, politely produce it. Know where your driver’s license, registration and insurance information are located in your wallet.

What Do I Do If the Officer Says He or She Is Going to Search My Car?

The general rule in PA is that the police need a warrant to search a vehicle. There are numerous exception to this general requirement. The police may look in the vehicle from outside the windows for anything in “plain view”. They may also search a vehicle if the person “consents” to the search. A common police technique is to tell motorists that they can either consent to a search or “wait a couple hours while I get a search warrant.”

It is absolutely appropriate to politely tell the police officer that you are exercising you basic privacy rights as an American citizen and that you will not give consent to search your car.

What If Police Officer Sees An Open Container In My Vehicle?

If the police officer sees an open bottle of alcohol in “plain view”, he or she may seize the bottle and use it as evidence against you.

Do I have a right to an attorney when I’m stopped by an officer in PA for a suspected DUI and asked to take field sobriety tests?

With respect to a DUI arrest in Pennsylvania, a person does not have a right to an attorney until the person has been formally charged and/or arrested. A DUI suspect has no right to counsel prior to blood, breath or urine testing.

What is the officer looking for during the initial detention at the scene of a possible DUI arrest?

Police officers are taught to look for the following indication of intoxication when they stop someone for a suspected DUI:

• Red, watery, glassy and/or bloodshot eyes
• Flushed face
• Odor of alcohol on the breath or emanating from the car
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer’s questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other “inappropriate” attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

What should I do if I’m asked to take field sobriety tests?

There are a wide range of field sobriety tests (“FST’s), but the tests most used in the eastern Pennsylvania counties (Montgomery, Berks, Bucks, Chester and Delaware) are the walk-and-turn, one-leg stand and the horizontal gaze nystagmus. It is important to note that the National Highway Traffic Safety Administration (NHTSA) has concluded that all other performance FSTs used by the police are scientifically unreliable.

There is no requirement in PA that people submit to FSTs and the police are not permitted to use such a refusal against anyone in deciding whether to arrest for DUI. The reality is that police have typically made up their minds to arrest someone for suspected DUI – or at least take them for chemical testing – when they conduct these FSTs. In such cases, the “failed” FSTs simply become additional evidence that the police will use against someone if they charge them with DUI.

Many people believe that the best course of action is to politely refuse to take the tests. Of course, if a person has not been drinking at all, there is little risk in taking field sobriety tests because they will presumably demonstrate to the officer that you are sober and perfectly capable of safely operating a car.

Why did the officer make me follow a penlight with my eyes to the left and right?

This is the “horizontal gaze nystagmus” (“HGN”) test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to “jerk” (“nystagmus” is a medical term for a distinctive eye oscillation or movement). If the eye jerks when following an object before 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the object is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has been frequently criticized partly based on the question of whether a non-medically trained officer can properly recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, HGN test results are not admissible as evidence in Pennsylvania. However the police continue to use this test because the results can be used to develop the probable cause to make a DUI arrest and pursue chemical testing.

Should I agree to take a chemical test as part of a DUI investigation? What happens if I refuse to do so?

In PA, if a person is asked to undergo a blood, breath or urine test as part of a DUI investigation, the person has an absolute right to refuse that request. However the law is clear that if a person does refuse such a test, PennDOT must suspend that person’s driver’s license for one year. This suspension is in addition to any other that the person may receive for any DUI conviction or ARD disposition.

There is no right or wrong answer with respect to whether a person should take a chemical test. A person must weigh the likelihood of a high blood alcohol reading (which would obviously make a DUI case much easier to prove) against the consequences of refusing to take such a test (an additional one-year license suspension).

Do I have a choice of chemical tests in MontCo? Which should I choose?

Under PA law, people suspected of DUI do not have a choice of the type of chemical tests to which they will be subjected. A police officer who feels like being nice may entertain a person’s request, but the officer is under no obligation to comply and usually will not do so.

The officer never read me my rights (“Miranda” warnings). Can I get my case dismissed?

Probably not. A police officer is supposed to provide people with their 5th Amendment warnings after a person has been taken into custody. If they do not, they cannot use any of your answers to questions against you if the case goes to trial. This can be very important in cases (such as robbery, sex offense and homicide cases) where the most important police evidence is often a person’s confession. In DUI cases, however, the police rarely need a person’s “confession” or any statements he made to prove the case. This is why, in DUI cases, may defendants are never read their rights.

Why am I being charged with two or three DUI offenses when I was only stopped once?

The Pennsylvania DUI statute has several different definitions or “counts” of DUI. For example, one count provides that the elements for DUI are satisfied if a person is driving under the influence of alcohol to a level that renders him or her incapable of safe driving (regardless of the blood alcohol content). Three other DUI counts provide that the elements for DUI are satisfied if a person is driving with a BAC of between .080 percent to .099 percent, between .100 percent and .159 percent, and above .159 percent, respectively.

Sometimes the police will charge a person with violating more than on count (or definition) of DUI so that it appears that he or she has been charged with multiple DUIs. However notwithstanding the number of DUI counts a person is charged with, it is only one charge for DUI and a person can only be sentence (or receive ARD) for one DUI.

What is “mouth alcohol” and how does this effect a DUI investigation?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If mouth alcohol is present during a DUI breath test, the results can be falsely high because the breath machine assumes any such alcohol is emanating from the lungs. For reasons beyond the scope of this answer, even small amounts of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have significant impact on a person’s BAC reading.

Mouth alcohol can be caused in many ways such as burping, hiccupping or vomiting. Any such mouth alcohol generated within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener which has alcohol in it (such products as Listerine, Binaca and some cough syrups) can result in an artificially high BAC calculation. Additionally, a chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings and some dental bridges and dental caps can trap alcohol.

What defenses are there in a DUI case?

It is impossible to list all the potential defenses to a DUI case because every DUI case is different. Most defenses to DUI cases, however, are typically based on one or more of the following theories:

• Was the person actually driving? To prove a DUI case, the prosecution must prove that the defendant was physically in control of a motor vehicle on a roadway. If the police cannot prove the person was actually driving (such as in the case of an accident where no one witnessed who was driving) or that the person was driving on a roadway (such as when a person is stopped in certain parking areas or driveways), the person cannot be convicted for DUI.

• Did the police have probable cause to stop the vehicle and question the defendant? In Pennsylvania, like in all American jurisdictions, the police need to have probable cause to stop a person’s vehicle and/or question that person unless a Constitutionally-recognized exception applies. Generally speaking, evidence will be suppressed in a DUI case if the officer did not have probable cause to (a) stop the vehicle, (b) detain the person, and (c) arrest that person. Sobriety roadblocks present particularly complex issues regarding probable cause to arrest in DUI cases.

• Was the person read his rights / Miranda warnings? Incriminating statements may be suppressed if the proper Miranda warnings were not given at the appropriate time. Miranda warnings are usually not an issue in DUI prosecutions because prosecutors rarely seek to use a person’s words against them at a DUI trial. However, if the prosecutor does seek to use the person’s words at trial, the Miranda warnings can become an issue.

• Was a person informed of the Implied Consent warnings? If the officer did not advise a person of the consequences of refusing to take a chemical test as part of a DUI investigation, or gave inadequate or incorrect information, then any PennDOT suspension for failing to take such a test cannot stand.

• Did the person truly appear to be “under the influence”? At a DUI trial, the police officer’s observations and opinions with respect to intoxication can be questioned and examined. Appropriate questioning can include (a) the circumstances under which the field sobriety tests were given, (b) the subjective (and perhaps predisposed) nature of what an officer considers as “failing”, (c) whether the officer fully complied with FST guidelines set forth by the National Highway Traffic Safety Administration (NHTSA), and (d) whether the FSTs were videotaped or whether there are any witnesses to corroborate the police officer’s conclusions.

• Was the person’s blood-alcohol concentration tested accurately and appropriately? There are a wide range of potential issues with blood, breath and urine testing for blood-alcohol content. Blood testing involves a recognized margin of error and variance which should be considered by toxicologists performing the tests and prosecutors evaluating test results. Indeed, the Department of Health requires laboratories conducting blood-alcohol testing to test within 9 percent of a “known sample” in order to maintain their accreditation. Accordingly, many toxicologists contend that the margin of error of blood testing at such accredited labs should be presumed to be no less that 9 percent. With respect to breath tests, it is widely recognized by many experts that all breath tests have a margin of error of plus-or-minus 10 percent. All breath testing instruments are based on the assumption that the ration of breath to blood is 2100:1. That is, the amount of alcohol in one ml of blood is equal to the amount of alcohol in 2,100 ml of exhaled air. This is based on the average individual, but the ratio for human population has been shown to vary from 900:1 to 3,400:1. Accordingly, without analyzing the physiological makeup of the person charged, the possible margin of error or variance can be significantly higher.

What is an interlock ignition device?

An ignition interlock device (IID) is installed on the steering column of the car and requires a breath sample in order for the car to start. In addition, it will beep at intervals and require breath samples. If any alcohol is detected, the car will shut off. In PA, an interlock device is required on all second DUIs within a 10-year period.

Who determines whether a person may be admitted into the ARD Program?

According to Pennsylvania law, only the District Attorney may admit move for an offender’s admission into the ARD Program. A Common Pleas Court judge must approve the admission, but a judge may not move a person into the ARD Program unless that person has first been approved by the DA’s Office.

For anyone charged with a crime such as a DUI, it is important to retain an attorney counsel who is familiar with how prosecutors analyze various cases and what they are looking for in an ARD application.

Will a prior DUI or conviction make me ineligible for the ARD Program?

The general rule in most PA counties is that a prior conviction for any crime, including DUI, or a prior admission into the ARD Program, for a DUI or any other offense, will make you ineligible for admission into the ARD Program. However the PA state legislature has permitted counties to establish their rules with respect to ARD admissibility and the various counties do have differing rules regarding ARD.

Anyone arrested for a DUI in any of the 5-county Pennsylvania area (Montgomery County, Berks County, Bucks County, Chester County and Delaware County) should consult with an experienced criminal defense attorney to ascertain whether they may be eligible for admission into the ARD Program.

What is the punishment for a DUI?

The punishment for a DUI depends on a variety of factors. First, it depends on whether a person can gain admission into the ARD Program in which case there is no jail time and the charges are ultimately dismissed. If a person cannot get into the ARD Program, then the possible punishments vary depending on a person’s blood alcohol content and the number of prior DUI offenses in the past 10 years.

The penalties also vary depending on other factors such as whether the driver is a commercial driver or a minor The varying punishment possibilities for a DUI conviction are set forth below.

Pennsylvania DUI Laws and BAC (Blood Alcohol Concentration) Limits

ALL DRIVERS — BAC LIMIT = 0.08%

In the Commonwealth of PA it is crime for ANY driver to drive with a BAC (blood alcohol content / concentration) of 0.08% and above.

COMMERCIAL DRIVERS (drivers with a CDL License) — BAC LIMIT = 0.04%

In the Commonwealth of PA, it is a crime for commercial vehicle operators (people with a CDL license operating a commercial vehicle) to drive with a BAC (blood alcohol content / concentration) of 0.04% or above.

MINORS (defined as under the age of 21, not 18) — BAC LIMIT = 0.02% 

In the Commonwealth of PA, it is a crime for persons under 21 years of age to drive with a BAC (blood alcohol content / concentration) of 0.02% or above.

Do the Penalties for DUI increase for additional arrests or convictions?

In Pennsylvania, people convicted of DUI face mandatory minimum penalties. These mandatory minimums increase for people who have have prior DUI convictions. By PA law, admission into the Accelerated Rehabilitation Disposition Program (ARD Program) counts as a prior DUI conviction even though the successful completion of ARD is not, legally, a conviction.

The following chart sets forth a summary of the mandatory minimum sentences for DUI convictions in PA.

First Offense (DUI/Drunk Driving)

Second Offense (DUI/Drunk Driving)

Third Offense (DUI/Drunk Driving)

Fourth and Subsequent Offense (DUI/Drunk Driving)

Should I hire a lawyer to help me with my DUI?

Naturally, this is a personal question and there is no “right” answer for everyone. There is no doubt, however, that the DUI laws are complex and that you will likely not know your various rights and options without an experienced DUI defense attorney helping you. The truth is that even lawyers who get charged with a DUI generally hire DUI criminal defense lawyers for representation.

Certainly, at the very least, it makes sense to consult with a DUI and criminal defense lawyer as part of your decision-making process. If you or a loved one are charged with a DUI please feel free to contact the Law Office of Erik Petersen to discuss your case.