How to Avoid a DUI conviction in Pennsylvania

Pennsylvania's DUI Law - The Basics

Pennsylvania's DUI Law also known as Act 24 (Title 75 Pa.C.S.A. §3801 et. seq.) , lowered Pennsylvania's legal limit of alcohol from .10 to .08, was signed into law on September 30, 2003.  Pennsylvania's DUI Law creates a tiered approach toward DUI enforcement and treatment, and includes many changes to the penalties, terms of suspension, fines and other requirements. The combination of an individual's Blood Alcohol Content (BAC) level, and prior offenses, determines the licensing requirements and penalties. Title 75 Pa.C.S.A. §3801 et. seq. focuses on treatment for first-time DUI offenders, rather than strictly punishment and suspension.

There are three levels of DUI under Title 75 Pa.C.S.A. §3801 et. seq.:

  1. General Impairment (.08 to .099% BAC)
  2. High BAC (.10 to .159% BAC)
  3. Highest BAC (.16% and higher)

Under Title 75 Pa.C.S.A. §3801 et. seq., minors, commercial drivers, school vehicle or bus drivers, and offenders involved in an accident that injures someone or causes property damage may be subject to the high BAC penalties even if their BAC is not in the high category. Offenders who refuse breath or chemical testing may be subject to the highest BAC penalties. The following charts show the penalties for each of the BAC categories:

General Impairment penalties

(Title 75 Pa.C.S.A. §3802(a) --- Undetermined BAC, .08 to .099% BAC)

No prior DUI offenses

  • ungraded misdemeanor
  • up to 6 months probation
  • $300 fine
  • alcohol highway safety school
  • treatment when ordered

1 prior DUI offense

  • ungraded misdemeanor
  • 12 month license suspension
  • 5 days to 6 months jail time
  • $300 to $2,500 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock

2 or more prior DUI offenses

  • 2nd degree misdemeanor
  • 12 month license suspension
  • 10 days to 2 years prison
  • $500 to $5,000 fine
  • treatment when ordered
  • 1 year ignition interlock

The law creates a higher set of penalties for those having higher BAC levels. It allows for treament at all levels, and requires alcohol highway safety school for all first and second time offenders.

High BAC penalties

(Title 75 Pa.C.S.A. §3802(b) ---.10 to .159% BAC)

No prior DUI offenses

  • ungraded misdemeanor
  • 12 month license suspension
  • 48 hours to 6 months prison
  • $500 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered

1 prior DUI offense

  • ungraded misdemeanor
  • 12 month suspension
  • 30 days to 6 months prison
  • $750 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock

2 or more prior DUI offenses

  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock

3 or more prior DUI offenses

  • 1st degree misdemeanor
  • 18 month license suspension
  • 1 to 5 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock

For those at the highest BAC levels, the law has stricter penalties, but also allows for treatment. This even-handed approach allows for individuals to receive counseling for their alcohol problem, while still penalizing those who choose to continue the dangerous practice of drinking and driving.

In addition, drivers under the influence of controlled substances and those who refuse breath or chemical testing are subject to the highest BAC category penalties.

Highest BAC penalties

(Title 75 Pa.C.S.A. §3802 (c) and (d) --- .16% and higher) or Controlled Substance

No prior DUI offenses

  • ungraded misdemeanor
  • 12 month license suspension
  • 72 hours to 6 months prison
  • $1,000 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered

1 prior DUI offense

  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,000 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock

2 or more prior DUI offenses

  • 1st degree misdemeanor
  • 18 month license suspension
  • 1 to 5 years prison
  • $2,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock

The following outlines specific components of the new law, and changes from the previous law that impacts DUI drivers.

Blood Alcohol Content (BAC) Levels
The Blood Alcohol Content (BAC) level for per se* DUI is lowered to .08%.
-Effective September 30, 2003

Penalties for DUI will be based on BAC and prior offenses.
-Effective February 1, 2004

Accelerated Rehabilitative Disposition (ARD)
Requires courts to impose suspensions for BAC ARDs based on the following BAC ranges:

  • Less than .10% - no suspension,
  • .10% to less than .16 - 30 day suspension, or
  • .16% and above or drugs  - 60 day suspension

-Effective February 1, 2004

License Suspensions
Suspensions will be imposed as follows:

  • BAC below .10% and incapable of safe driving: No suspension for first offense if the driver meets certain criteria; 12 month license suspension for second or subsequent offense.
  • BAC greater than or equal to .10% and less than .16%: 12 month license suspension for first and second offense. 18 month suspension for third or subsequent offense.
  • BAC greater than or equal to .16%: 12 month license suspension for first offense. 18 month suspension for second or subsequent offense.
  • Out-of-state DUI convictions: No suspension for first offense; 12 month license suspension for second or subsequent offense.

-Effective February 1, 2004

DUI Treatment and Evaluation
Treatment and evaluation processes are geared to rehabilitation.

-Effective - Phased-In Through 2009

Ignition Interlock
Drivers who receive a second or subsequent DUI violation on or after September 30, 2003, can no longer serve an additional one year suspension in lieu of obtaining an ignition interlock device. Drivers are required to install ignition interlock on all vehicles owned (including leased) before driving privileges can be restored.

-Effective September 30, 2003

Additionally, the following exemptions and penalties have been added:

  • Financial Hardship Exemption:Drivers may apply for an exemption from the requirement to install the ignition interlock device on all of their vehicles. If the exemption is granted, ignition interlock installation will only be required on one vehicle.
    -Effective February 1, 2004
  • Employment Exemption:Under certain circumstances, ignition interlock restricted drivers may operate employer owned vehicles but only in the course and scope of employment. The employee must notify the employer of the ignition interlock restriction and carry proof of employer notification on a PennDOT form. The employer owned vehicle cannot be a school bus/vehicle or large passenger vehicle.
    -Effective February 1, 2004
  • Ignition Interlock Violations:Individuals convicted of driving without or tampering with the ignition interlock device will have their ignition interlock period extended 12 month from the date of conviction for the first offense and will have their driving privileges suspended for 12 months for the second or subsequent offenses. Upon restoration they must comply with ignition interlock for 12 months. Individuals, whose driving privileges are suspended during the ignition interlock period for a non-ignition interlock violation, must complete the ignition interlock period upon restoration.
    -Effective February 1, 2004

 

Occupational Limited Licenses (OLL's)
First time DUI offenders may be eligible for an OLL after serving 60 days of their suspension. Individuals whose licenses are suspended for 18 months (for DUI or refusing breath or chemical testing) and have no more than one prior offense may be eligible for an OLL with an ignition interlock after serving 12 months of their suspension. In addition, first time underage drinking violators may be eligible for an OLL.
-Effective February 1, 2004

Expungement of Accelerated Rehabilitation Disposition (ARD) Records
PennDOT will automatically expunge ARD records after 10 years providing a person's operating privileges were not revoked as a habitual offender and/or the person was not a commercial driver at the time of the violation.
-Effective February 1, 2004

Credit (Suspension)
Individuals suspended for driving a vehicle not equipped with an ignition interlock device or driving under a DUI-related suspension, with a BAC of .02% or greater cannot receive credit for their suspension until jail time has been served.
-Effective February 1, 2004

Implied Consent/Breath or Chemical Testing
Suspensions for individuals who refuse to submit to breath or chemical testing may be increased. Breath or chemical testing may now be required for individuals who are arrested for driving under a DUI-related suspension or driving without an ignition interlock device.
-Effective February 1, 2004

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

* "Per se" is a Latin phrase that means "by itself." Evidence that a person drove, operated or was in control of a motor vehicle with a BAC of .08% or higher is enough by itself to convict the person of DUI. A person with BAC less than .08% might still be convicted of DUI is there is evidence that he or she imbibed enough alcohol to make him or her incapable of safely driving, operating or being in control of a motor vehicle.

Biggest factor in a DUI stop? The police officer!

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself.

A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer's observations and conduct in the field:

"The officer's age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

"The officer's personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

"Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate often by a wide margin the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

"Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement particularly in municipal departments were found to lack this specialized training.

"Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties.

"Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.

"Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

"The suspect's attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

"The suspect's race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed the overwhelming majority of whom were white reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

"Suspect's age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

"Suspect's sex also plays a role in the arrest/no arrest decision . Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

What does all of the above mean? Quite simply this, the person who will most likely be the main witness against you in a DUI case comes with their set of human flaws, prejudices and biases. Knowing how to counteract those variables can mean the difference between a DUI conviction and a DUI acquittal.

See my blog for how to handle a traffic stop.
 
While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented.  It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances.  The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

You can be convicted of DUI because of the heat

You could fail a breathalyzer because you have A FEVER or because it’s really HOT OUTSIDE!

Another example of variability in Breathalyzer testing is body temperature. Weird, but true.

... Put simply, an individual's body temperature will have a direct effect on the results of a breath test. Yet another example of how breathalyzers are not actually testing you. Instead, they are testing an "average" person who does not exist.

Breathalyzers (the machines that estimate a person’s BAC from that person’s breath) work on the principle that alcohol in a person’s blood evaporates into the lungs. The machine assumes that a greater amount of alcohol measured in the lungs is congruous with a greater amount of alcohol in the blood. However, as with all assumptions, there are flaws.

Anyone who has watched a pot of water boil knows that the warmer a liquid gets, the more it evaporates. Alcohol is the same. The higher a person’s body temperature is, the less accurate the breathalyzer will be. This inaccuracy occurs because breathalyzers do not take a person’s temperature into account; the breathalyzers simply assume that person’s body temperature is normal (98.6° Fahrenheit or 37° Celsius) all the time when it calculates the BAC. However, if the driver’s body temperature is over 98.6°, the machine will return an erroneously high BAC reading. Consequently, if a person has a fever, is dressed too warmly, is suffering through a heat wave, or is even sitting in a hot police car too long, his breath test results may be inaccurate.

The effects of changes in body temperature from the norm of 98.6 degrees on breath testing was discussed in an article entitled "Body Temperature and the Breathalyzer Boobytrap", 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio used by breathalyzers will be altered so as to produce a 7 percent higher test result.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this. In an article entitled "Physiological Errors Associated with Alcohol Breath Testing", 9(6) The Champion 18 (1985), he notes that even the average body temperature of a normal, healthy person "may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit". Not only can the normal mean body temperature of an individual vary from that of other persons, but the "temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade".

Result? The partition ratio for alcohol in blood is altered meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature. So whether you have a fever, have a "high" normal temperature, or you're out in 90 degree heat (and that will raise your body temperature), the breathalyzer will give a higher reading not because you are drunk but because your body temperature is higher than normal.

An error rate of 6.3% to 7% because of body temperature? While reasonable doubt is not a mathematical certainty, being off by that much should mean that police, prosecutors, and Pennsylvania courts should not accept breathalyzer results as proof beyond a reasonable doubt.

If you are arrested for DUI and are hotter than normal, let the arresting officer know. Roll down the window, sit by the fan, drink water, and make sure that the arresting officer knows you are too hot. Informing the arresting officer will allow you to either have time to cool down or be able to testify in court that you were too hot when tested.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063
 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Women and DUIs and breathalyzers...


If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are guilty. It does not matter, of course, whether you are a man or a woman: the laws do not discriminate. Maybe they should....

Researchers at the University School of Medicine in Trieste, Italy found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less than men. To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much; with weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists' conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, "High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism", 322(2) New England Journal of Medicine 95 (1990).

Yet another study has found that women have lower "partition ratios" of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person's breath. But what we really want to know is the amount of alcohol in the person's blood. So how do we get that? Simple: a small computer in the Breathalyzer multiplies the amount of alcohol it detects in the breath sample by 2100 times. This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath. (Note: that's an average, " but it varies from person to person.)

According to the study, women have a significantly lower partition ratio. Jones, "Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma", Analytical Toxicology 193 (July/August 1983). And the lower the ratio, the higher the reading even though the true BAC does not vary. Example: a woman with a true BAC of .06% and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09%" above the legal limit.

Put another way, the breath machine will show an average man accused of drunk driving to be innocent but a woman with the same blood alcohol level to be guilty.

And then there's the problem of birth control.

Scientists in Canada have found that "women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S." Papple, "The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman, 15(1) Canadian Society of Forensic Science Journal 17 (1982). That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one hour later.

Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases. So what? Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don't really measure alcohol, rather they measure any compound which contains the "methyl group" in its molecular structure. And acetaldehyde is one of these compounds. Result: a higher "blood alcohol" reading on the Breathalyzer. Jeavons and Zeiner, "Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans", 8(4) Alcoholism: Clinical and Experimental Research 352 (1984).

It's always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same.
While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!


Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063
 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

BURPS, BELCHES AND DUI

One of the most common causes of falsely high breathalyzer readings is the existence of mouth alcohol.

The breathalyzer's internal computer is making a major assumption when it captures a breath sample and then analyzes it for blood alcohol concentration (BAC): It assumes that the alcohol in the breath sample came from alveolar air -- that is, air exhaled from deep within the lungs. Since we are trying to measure how much alcohol is in the blood, rather than in the breath, the computer applies a formula to translate the results. This formula is based upon the average ratio of alcohol in the breath to alcohol in the blood. This “so-called” partition ratio is 1 to 2100 -- that is, in the average person there will be 2100 units of alcohol in the blood for every unit measured by the breathalyzer in the breath. Put simply, the machine's computer multiplies the amount of alcohol detected in the suspect's breath sample by 2100 and reports that as the blood alcohol level. (This ratio is used regardless of lung capacity, physiology, weight, pulmonary health, genetics, or sex.)

If the alcohol in the sample is not from the lungs, the machine can’t distinguish whether the alcohol comes from alveolar air (i.e. from the lungs) or from the inside of your mouth. If there is even a miniscule amount of alcohol in the DUI suspect's mouth or throat, it will be greatly magnified by the breathalyzer and it will report a much higher BAC than the true one.

While taking a law school course on Alcohol, Motor Vehicles, and the Law, pejoratively referred to “Cars and Bars” by fellow students; I was ask to take full shot of vodka into my mouth and then immediately spit it back out. Five minutes later, I took a breathalyzer. The reading was 0.50 BAC, more than 5 times the legal limit. After 10 minutes, I retook the breathalyzer and it was still reading at 3 times the legal limit. After 15 minutes, I retook the test again and the reading had dropped to just below 0.10 BAC. Was I drunk? No, of course not. But the breathalyzer was still measuring the alcohol that had been in my mouth 15 minute later.

Alcohol can be found in the mouth for a number of reasons. The most obvious is that the individual has recently consumed some alcohol; it usually takes 15-20 minutes for the alcohol to dissipate through the rinsing action of saliva. Or the person may have recently used mouthwash or breath freshener (most contain fairly high levels of alcohol) -- possibly to disguise the smell of alcohol when being pulled over by police.

The most common source of mouth alcohol is from burping or belching (eructation if you want to be medically accurate.) This causes the liquids and/or gases from the stomach -- including any alcohol if it is there -- to rise up into the soft tissue of the esophagus and mouth, where it will stay until it has dissipated. For this reason, police officers are required to keep a DUI suspect under observation for at least 15 minutes prior to administering a breath test (in reality, however, many if not most officers are unwilling to stand around watching a suspect for a quarter of an hour). Sometimes, the officer will swear he was watching you in the rear view mirror while you were sitting in the back of the police car (and while the police officer was driving!) to cover part of the observation period.

Acid reflux can also greatly exacerbate this problem. The stomach is normally separated from the throat by a valve. When this valve becomes herniated, there is nothing to stop the liquid contents in the stomach from rising and permeating the esophagus and mouth. The contents -- including any alcohol -- is then later breathed into the breathalyzer. Since it has not yet been absorbed through the stomach wall and into the blood and eventually into the lungs, this alcohol should not be read as breath from the lungs and multiplied by 2100. Of course, the breathalyzer doesn't know this. See the article by Kechagias, et al., "Reliability of Breath-Alcohol Analysis in Individuals with Gastroesophogeal Reflux Disease", 44(4) Journal of Forensic Sciences 814 (1999).

The mouth alcohol problem can also be created in other ways. Food stuck between teeth can and does hold alcohol. Dentures will trap alcohol for much longer than 15-20 minutes. A cracked tooth, a lost filling and periodontal disease can also create pockets in the gums which will contain the alcohol for longer periods. And so on....

As the American Medical Association's Committee on Medical Problems concluded in its Manual for Chemical Tests for Intoxication: "True reactions with alcohol in expired breath from sources other than the alveolar air (eructation, regurgitation, vomiting) will, of course, vitiate the breath alcohol results."
 
While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063
 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

How Anthony got convicted by a machine?

An early breathalyzer prototype

Anthony is presently facing criminal charges for driving under the influence of alcohol.

Except that he wasn't under the influence of alcohol. He had one beer after work and was stopped at police car looking for speeders and drunk drivers who arbitrarily pulled him over. The officer smelled the alcohol on his breath and asked Anthony to step out of the car to take some field sobriety tests. He did fairly well on the tests but, to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .09%.

Anthony was arrested for DUI, handcuffed and taken to jail. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Anthony have only consumed one beer but registered .09% on the machine at least four times higher than would be expected?

Well, to begin with, breath machines (commonly referred to as "Breathalyzers", although there are many competing makes and models) are notoriously inaccurate and unreliable. Calibration, maintenance, repair and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being "non-specific" for alcohol that is, they don't actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as "alcohol". Another recurring problem is "mouth alcohol".

What is "mouth alcohol" and how could this have caused Anthony's false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Anthony's mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Anthony is facing DUI charges.

So what was alcohol doing in Anthony's mouth or throat?

Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Anthony had "one for the road" just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Anthony may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus. But what actually happened was that Anthony suffers from a very common condition: GERD, or "gastroesophageal reflux disease". This causes "acid reflux", often experienced as heartburn.

Acid reflux is commonly caused by a "hiatal hernia" - damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Anthony is now ordered to breathe into the machine's mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny invisible amount of absorbed alcohol to cause a disproportionately high reading. In Anthony's case, an "innocent" reading of perhaps .02% became a "guilty" .09%. And now Anthony has to try to prove his innocence in court.

Prove his innocence? We are supposed to be presumed innocent in America. This is the notorious "DUI exception to the Constitution." Anthony is not presumed to be innocent as we all thought: Pennsylvania like almost all states legally presume a person is under the influence of alcohol if the machine's reading is .08% or higher.

Yes, we have a legal system where citizens can be convicted by a machine...a very fallible machine.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Does slurred speech mean you are DUI?

Accent, speech impediment or alcohol impaired? Gilda Radner doing Barbara Walters and John Belushi doing Henry Kissinger.
Just like the phrase "odor of alcohol on the breath", few police reports will fail to include an observation by the arresting officer that the arrestee exhibited "slurred speech". The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and it is a psychological fact that we tend to "hear" what we expect to hear. And "hearing" slurred speech supplies the officer with confirmation of his suspicions.

Even assuming the accuracy of the officer's perception that the defendant's speech was slurred, there is little evidence that this is symptomatic of intoxication. Impairment of speech is, for example, a common -- and sober -- reaction to the stress, fear and nervousness that a police investigation would be expected to engender; fatigue is another well-known cause. However, consider the following excerpt from Discover magazine:

Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people's alcohol levels by the way they talk.

Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes.

He thinks his research could encourage police to be more wary of making snap judgments: Mild drinkers might come under needless suspicion. . ." Saunders, "News of Science, Medicine and Technology: Straight Talk", 21(1) Discover (Oct. 2000).

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063
 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Probable cause for Chemical Testing in DUI arrests?

How will the police prove you are drunk in a DUI arrest? Police officers are trained to note the following "symptoms of intoxication" on their report:

1. Flushed face (How does he know your "normal" coloring?)

2. Red, watery, glassy and/or bloodshot eyes (Been up 20 hours?)

3. Odor of alcohol on breath (Doesn't non-alcoholic beer smell just like Bud?)

4. Slurred speech (How does he know your regular speech patterns?)

5. Fumbling with wallet trying to get license (Maybe you're nervous because the police are there with lights on?)

6. Soiled, rumpled, disorderly clothing (Do you work construction or in a kitchen or warehouse? You could just dirty from a long work day and tired or been driving for a long period)

7. Combative, argumentative, jovial or other "inappropriate" attitude (Trying to talk your way out of a DUI is the best way to get arrested for it)

8. Staggering when exiting vehicle (Field Sobriety Test)

9. Swaying/instability on feet (Field Sobriety Test)

10. Leaning on car for support (Field Sobriety Test)

11. Failure to comprehend the officer's questions (Field Sobriety Test)

12. Stumbling while walking (Field Sobriety Test)

13. Disorientation as to time and place (Field Sobriety Test)

14. Inability to follow directions or to "divide attention." (Field Sobriety Test)

Items 1 through 6 are just what a police officer sees not knowing you from Adam. In court, they can and should be challenged by your attorney

I meet and represent a lot of people who commit Item 7. Everything you say to the police is going to used against you. Stick with giving your Name, address, license, proof of insurance and registration and nothing else. To anything else "Officer, I know you have a job to do but I think I need to remain silent until I speak with my attorney." or "Officer, I have been advised not to answer these types of questions until I speak with my attorney, nothing personal"

Items 8 through 14 are going to severely limit potential defenses you may have. The Field Sobriety test (FST) is designed for failure and just bolsters the police officer's probable cause to get a Breathalyzer and Blood Test. In many cases, injuries, poor hearing, being overweight, bad eyesight and other medical ailments may prevent the police from having you perform a FST

If you decline to take a Field Sobriety test, the Police are stuck with your driving patterns before the traffic stop. I read a lot of Affidavits of Probable Cause for DUI arrests. In the vast majority of cases, more ink is devoted to what you did after exiting your vehicle for the Field Sobriety Test than why the police stopped you initially.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Can you beat the Breathalyzer?

Want to trick that breath machine into a false reading?

Not that difficult: just vary your breathing pattern.

Breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies. In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.

The results:

Holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%.

Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%.

Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%.

"How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law 275. For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

"By far, the most overlooked error in breath testing for alcohol is the pattern of breathing.  The concentration of alcohol changes considerably during the breath.  The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC.  Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC.  The last part of the breath can be over 50% above the alcohol level.  Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%." 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgment that the person they arrested is intoxicated, they won't look good. So when they tell the arrestee to blow into the machine's mouthpiece, they'll yell at him, "Keep breathing! Breathe harder! Harder!"  As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher but inaccurate reading.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Driving under the influence of drugs

Driving under the influence of drugs, also known as DUI(D), or drugged driving, is a criminal offense under Pennsylvania law that is taken very seriously.  Drugged driving arrests have increased significantly over the past several years as a result of increased drug recognition training programs used by police statewide, including Chester, Delaware, Montgomery and Philadelphia Counties.  Driving Under the Influence of Drugs carries severe penalties - the same as the highest level of DUI under Pennsylvania law.  Moreover, if the police find drugs in your car at the time of the alleged drugged driving offense, you may face multiple drug charges.

If you have been charged with drugged driving in Chester, Delaware, Montgomery and Philadelphia Counties, you should contact the Law Office of Kevin Mark Wray as soon as possible to learn what defenses, mitigating circumstances, or other options that may be available to you, including first-time offender programs.  Criminal Defense Attorney Kevin Mark Wray offers free initial consultations for pending drug DUI matters in Chester, Delaware, Montgomery and Philadelphia Counties.  Contact the Law office of Kevin Mark Wray at (610) 619-0011 or (610) 800-5487 to schedule an appointment.

Pennsylvania Drugged Driving Statute

Pennsylvania law, at 75 P.S. § 3802(d), outlines the criminal offense of Drug DUI as follows:

75 P.S. § 3802(d) – Penalties the same for highest rate DUI

Controlled substances

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 controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

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 a substance under subparagraph (i) or (ii).

The individual is under the influence of 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 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 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

You can be pulled over for drugged driving in Pennsylvania just like any other alcohol-based DUI stop.  If there are PA Drug Recognition Experts (DREs) available, they may be called to the scene to check factors such as blood pressure, pulse rate, pupil size and other measurements. Drug Recognition Experts may also scan you for injection marks and other telltale signs of drug use.  Sometimes the DREs will administer additional field sobriety tests as well. 

Any person who drives in Pennsylvania has implicitly given consent to chemical tests of blood, breath, or urine for the purpose of testing for the presence of a controlled substance.  If you are under arrest in Pennsylvania and you refuse to submit to testing, testing will not be performed; however, the Pennsylvania Department of Transportation will suspend your driver's license regardless of whether you are ultimately convicted, and your refusal can be used as evidence against you at trial.

There are many legal arguments that an experienced criminal defense lawyer can make in defense of drugged driving charges in Chester, Delaware, Montgomery and Philadelphia Counties.  The fact that certain drugs, such as marijuana, remain in an individual's system for weeks, or even months, after consumption means that even if a blood test reveals the presence of marijuana in a person's system, this does not necessarily mean that the person was impaired by the drug at the time he or she was pulled over.

Just like any DUI charge, being arrested for drugged driving is a serious offense that can significantly affect your future.  It is important for anyone who is charged with drugged driving in Pennsylvania to hire an experienced criminal defense attorney who is able to challenge the validity of the traffic stop, the interpretation of the signs of drug use, the chemical tests performed, and the procedures done by the police.

The Law Office of Kevin Mark Wray represents clients for DUI, drugged driving, and other drug charges in Chester, Delaware, Montgomery and Philadelphia Counties.  If you have been charged with drugged driving in Chester, Delaware, Montgomery and Philadelphia Counties, your best opportunity for success hinges on whether you retain a skilled criminal defense attorney lawyer to defend you.  

Contact the Law office of Kevin Mark Wray at (610) 619-0011 or (610) 800-5487 to schedule an appointment.  The initial consultation is always free.

 

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

They took Blood instead of Breath during my DUI test, they’re 100% accurate right?

Typical lab tray of blood samples for testing

One of the many tests used by police to ascertain sobriety relating to driving under the influence (DUI) cases, the common blood test, is supposedly the most reliable.  

The DUI blood test is typically not subject to the exact same scrutiny regarding reliability is a breath test DUI case; however, there are still many ways the blood test results can go wrong, or be misinterpreted.  Blood testing, like virtually all testing protocols, is subject to errors and the results of any testing can be misinterpreted.  Knowing this exposes the best ways how to fight to beat a blood test DUI case based on these results.  

Blood tests are becoming a preferred BAC test in many jurisdictions in Chester, Delaware, Montgomery and Philadelphia Counties, not only because they are more reliable in showing exact blood alcohol level results, but also because they often show the presence and concentrations of any/all illegal and prescription drugs which may be in the driver’s body.  Blood tests, however, are strictly limited under the law in how they are administered.  Just because the DUI blood test is considered the most reliable in DUI testing, there are still potential problems in blood testing that may invalidate DUI blood test results and may keep them from being used as evidence in court.  The only way to know if your results can possibly be suppressed with any errors in how it was processed, is by having your arrest details evaluated first and then use any discoveries made by your attorney at your court date.

Although it is true that a DUI blood test can offer greater reliability, it has also led to many problems for prosecutors.  For instance, when driver gets a DUI and the officer demands a blood test, the prosecutor has to show that the officers had “probable cause” to test your blood.  Prosecutors recognize that ‘blood test prosecutions’ (which prosecutors tend to be less familiar with) tend to be more time consuming and thus much more expensive for the state.

In Pennsylvania, the Commonwealth has a responsibility to show that the DUI blood test was taken by a properly trained, certified, and neutral medical professional.  The Commonwealth must also prove to the judge and potential jury that the blood testing professional did everything right.  If the DUI blood test was handled improperly at any point, anything discovered after your arrest details have been examined – your attorney could demonstrate ways how to have DUI blood test results evidence omitted from your case by reason of violation of "chain-of-evidence" procedures, when it applies to your case.

It is with all blood test cases, that an area of inconsistencies and confusion exist.  This is where the tactics and methods that may be used after knowing the specific details of what happened during your arrest, could assist to help suppress improperly collected test evidence, which in turn will be used to affect the case to your benefit with your legal counsel.  With so many ways that blood testing for DUI can go wrong, the eventual results are rarely of significant enough in and of themselves to bring a conviction on their own.  Through the skilled and careful work from analyzing your arrest details with an experienced criminal defense attorney, you can then fight and potentially beat the DUI blood test results and preserve your rights under the law.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

Drug Recognition Experts and your DUI(D) arrest

This badge of "expertise" may be used to convict you

When people think of DUI, they often think of Drunk Driving meaning drinking too much alcohol.  There is, of course, another form of DUI that is referred to as DUI(D) or Driving Under the Influence of Drugs, both legal prescription drugs and illegal drugs.  As such, it now becomes very important for DUI defense attorneys to be well versed in DUID and in not only analytical chemistry, but also in the so called Drug Recognition Expert (DRE) protocol.

DRE is a twelve step National Highway Traffic and Safety Administration (NHTSA) standardized national curriculum that has been designed, but have yet to be vigorously tested, to supposedly detect impaired drivers at roadside.  The base principles of DRE are the Standardized Field Sobriety Tests which interestingly enough were not designed to record or quantify impairment yet form the crux of detecting impairment in the DRE context.  The twelve (12) published steps of DRE are as follows:

1. Breath Alcohol Test - The arresting officer reviews the subject’s breath alcohol concentration (BAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BAC.  If so, the officer will not normally call a DRE.  If the impairment is not explained by the BAC, the officer requests a DRE evaluation

2. Interview of the Arresting Officer - The DRE begins the investigation by reviewing the BAC test results and discussing the circumstances of the arrest with the arresting officer. The DRE asks about the subject’s behavior, appearance, and driving. The DRE also asks if the subject made any statements regarding drug use and if the arresting officer(s) found any other relevant evidence consistent with drug use.

3. Preliminary Examination and First Pulse - The DRE conducts a preliminary examination, in large part, to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs.  Accordingly, the DRE asks the subject a series of standard questions relating to the subject’s health and recent ingestion of food, alcohol and drugs, including prescribed medications.  The DRE observes the subject’s attitude, coordination, speech, breath and face. The DRE also determines if the subject’s pupils are of equal size and if the subject’s eyes can follow a moving stimulus and track equally.  The DRE also looks for horizontal gaze nystagmus (HGN) and takes the subject’s pulse for the first of three times.  The DRE takes each subject’s pulse three times to account for nervousness, check for consistency and determine if the subject is getting worse or better.  If the DRE believes that the subject may be suffering from a significant medical condition, the DRE will seek medical assistance immediately.  If the DRE believes that the subject’s condition is drug-related, the evaluation continues.

4. Eye Examination - The DRE examines the subject for HGN, Vertical Gaze Nystagmus (VGN) and for a lack of ocular convergence. A subject lacks convergence if his eyes are unable to converge toward the bridge of his nose when a stimulus is moved inward. Depressants, inhalants, and dissociative anesthetics, the so-called “DID drugs”, may cause HGN. In addition, the DID drugs may cause VGN when taken in higher doses for that individual. The DID drugs, as well as cannabis (marijuana), may also cause a lack of convergence.  [It should be noted that Pennsylvania does not regard the horizontal gaze nystagmus as a valid Field Sobriety Test to determine  probable cause for DUI.]

5. Divided Attention Psychophysical Tests - The DRE administers four psychophysical tests: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests.  The DRE can accurately determine if a subject’s psychomotor and/or divided attention skills are impaired by administering these tests.

6. Vital Signs and Second Pulse - The DRE takes the subject’s blood pressure, temperature and pulse. Some drug categories may elevate the vital signs. Others may lower them. Vital signs provide valuable evidence of the presence and influence of a variety of drugs.

7. Dark Room Examinations - The DRE estimates the subject’s pupil sizes under three different lighting conditions with a measuring device called a pupilometer.  The device will assist the DRE in determining whether the subject’s pupils are dilated, constricted, or normal.  Some drugs increase pupil size (dilate), while others may decrease (constrict) pupil size. The DRE also checks for the eyes’ reaction to light.  Certain drugs may slow the eyes’ reaction to light. Finally, the DRE examines the subject’s nasal and oral cavities for signs of drug ingestion.

8. Examination for Muscle Tone - The DRE examines the subject’s skeletal muscle tone. Certain categories of drugs may cause the muscles to become rigid. Other categories may cause the muscles to become very loose and flaccid.

9. Check for Injection Sites and Third Pulse - The DRE examines the subject for injection sites, which may indicate recent use of certain types of drugs. The DRE also takes the subject’s pulse for the third and final time.

10. Subject’s Statements and Other Observations - The DRE typically reads Miranda, if not done so previously, and asks the subject a series of questions regarding the subject’s drug use.

11. Analysis and Opinions of the Evaluator - Based on the totality of the evaluation, the DRE forms an opinion as to whether or not the subject is impaired.  If the DRE determines that the subject is impaired, the DRE will indicate what category or categories of drugs may have contributed to the subject’s impairment.  The DRE bases these conclusions on his training and experience and the DRE Drug Symptomatology Matrix.  While DREs use the drug matrix, they also rely heavily on their general training and experience.

12. Toxicological Examination - After completing the evaluation, the DRE normally requests a urine, blood and/or saliva sample from the subject for a toxicology lab analysis.

One of the problems with DRE evaluation is in the process itself.  The process itself is immediately and perhaps irreparably removed from the realm of the supposedly objective and empirical into the subjective and interpretive with step number two (2): Interview of the Officer.

From an officer’s point of view, Step two (2) or “Interview with Officer” is problematic and subject to bias and predisposition.  From a science point of view, Step two (2) or “Interview with Officer” removes the exercise from empiricism into subjectivity.  This second step carries within its application, even subconsciously, a very real risk to shortcut thinking.  Step two (2) or “Interview with Officer” should be eliminated or at the very least removed to after the DRE examiner makes a determination, which is really an quasi-educated guess, as to the class of impairing substance, if there is indeed any at all.

It is small wonder that someone comes to the conclusion of a Central Nervous System (CNS) stimulant when the arresting officer tells the examiner in the beginning of the DRE evaluation that he has seized bags of cocaine, use paraphernalia and the evaluator is made privy to an admission of use of cocaine.  So much of the DRE evaluation is truly subjective or subject to interpretation whether it is fudging or coloring.

Why not move “Interview of the Officer” to step eleven (11), if one wanted to eliminate contextual bias?  Should all of this not be based upon primarily the quasi-objective clues of the physical and psychomotor symptomology INDEPENDENT of the context?

To be clear, contextual bias is really confirmation bias which is the tendency to search for or interpret information in a way that confirms one’s preconceptions; this is related to the concept of cognitive dissonance.

In the body of knowledge referred to as cognitive forensic psychology, there is a well-researched and well-documented phenomenon known collectively as the “cold” biases.  These “cold biases” come about due to ignoring relevant information (e.g. Neglect of probability), perhaps involve a decision or judgment being affected by irrelevant information (for example the “Framing effect” where the same problem receives different responses depending on how it is described) or giving excessive weight to an unimportant but salient feature of the problem (e.g., Anchoring).

Daniel Kahneman and Amos Tversky in 1972 introduced in a formalized manner a conceptual framework, the modern notion of cognitive bias. What initially began as their anecdotal observation of people’s inability to reason intuitively with the greater orders of magnitude (innumeracy) has developed into the accepted field of science. They designed a series of experiments that have been successfully replicated over the decades to record ways in which humans make decisions, evaluate judgments and form conclusions that differ from rational choice theory. Ultimately, the settled academic weight of the research concluded that human decision-making and conclusion formation could be explained in heuristics or a series of rules which are simple for the brain to compute, but introduce systematic errors as they may not be based upon reason and empirical data.

The “Framing Effect” is of particular note for DUI practitioners especially in a DUID context.  Technically explained, the “Framing Effect” is when one seeks to explain an event, the understanding often depends on the frame referred to or the context.  To clarify by way of example, the following is offered.  If a friend rapidly closes and opens an eye, we will respond very differently depending on whether we attribute this to a purely “physical” frame (s/he blinked) or to a social frame (s/he winked).  Though the former might result from a speck of dust (resulting in an involuntary and not particularly meaningful reaction), the latter would imply a voluntary and meaningful action (to convey infatuation, for example).  Observers will read events seen as purely physical or within a frame of “nature” differently than those seen as occurring with social frames.  But we do not look at an event and then “apply” a frame to it.  Rather, individuals constantly project into the world around them the interpretive frames, even involuntarily or subconsciously, that allow them to make sense of it; we only shift frames (or realize that we have habitually applied a frame) when incongruity calls for a frame-shift. In other words, we only become aware of the frames that we always already use when something forces us to replace one frame with another.

As long as Step two (2) or “Interview with Officer” remains in the position that it is among the twelve (12), then DRE protocol will always be subject to criticism and perhaps proper exclusion from presentation in the Courtroom.

While a DUI is part of the Motor Vehicle Code and is considered a Traffic Offense, you need an experienced CRIMINAL DEFENSE ATTORNEY. Many attorneys claim to know DUI law only handle 1st offense DUIs and ARD eligible cases. (Chances are they know little or nothing about the about DREs, how to challenge an "expert witness", and have never tried a case before a jury.)  They do not practice criminal defense so they frequently do not know many of the nuances of the DUI statute and the subtleties of DUI jurisprudence. When your rights are at risk ---- hire a criminal defense attorney who knows everything that can go wrong in a DUI case and can help you steer clear of problems that can affect your rights and your freedom!

Law Office of Kevin Mark Wray
200 West Front Street
Media, PA 19063

 
(610) 800-5487 (mobile)
(610) 810-2999 (office)
(610) 566-1002 (fax)

This web posting is for general information and does not contain a full legal analysis of the matters presented. It should not be construed as legal advice or relied upon as legal opinion on any specific facts or circumstances. The invitation to contact Kevin M. Wray, Esquire is not a solicitation to provide professional services and should not be construed as an availability to perform legal services in any jurisdiction in which Kevin Wray is not licensed to practice.

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Karla | Reply 27.07.2013 23.23

Wish I had know this stuff 5 years ago

John Phillips | Reply 27.07.2013 23.20

great drunk driving info

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