At The McShane Firm, we know that when you are charged with a DUI in Pennsylvania, it can be a trying and nerve racking time, which is why we are here to help. If you have been charged with drunk driving in PA you have a right to fight DUI charges. Don’t let the complicated PA drunk driving laws prevent you from exercising your rights as a citizen. Don’t hesitate to contact us for more information on PA drunk driving laws and how you can fight DUI charges in Pennsylvania. We want to help you understand the PA drunk driving laws and regulations and how you can fight DUI charges in Pennsylvania. It is important to know the 4 categories or subdivisions of DUI laws in PA as well as how BAC, BrAC and license suspensions can play into your DUI charges.
The 4 Categories of DUI and DUID under PA Legislation
In 2004, new Pennsylvania legislature, entitled “Driving After Imbibing,” sub-divided the new DUI law into 4 basic categories including “incapable of safe driving”, BAC levels, controlled substance levels and a combination of BAC and controlled substance levels.
The first category is incapable of driving. Under the incapable of driving category, there is no direct attachment to a particular BAC level (level of alcohol in your blood); however, the Commonwealth must prove beyond a reasonable doubt that when the offender was driving, the person was substantially impaired by either controlled substances, alcohol or a combination of the two to a degree that they were rendered incapable of safe driving. Substantial impairment and inability to safely operate the vehicle must be proven without being attached to tangible peripheral matters. Judge or Jury may consider a driver’s BAC level but their BAC level arises no presumption under the law.
The second category is the per se DUI offense levels. A per se statute, such as Pennsylvania’s, means that even absent of any sort of evidence of impairment, you may be held criminally culpable simply by driving within two hours and having beyond a statutorily prohibited level of alcohol in either your breath (BrAC) or blood (BAC). Meaning you could be 100% fully functioning both cognitively and physically but if you have previously consumed alcohol and still maintain a BrAC or BAC level that is prohibited, you can be held criminally liable. This per se statute is further divided into 3 tiers depending on the BrAC or BAC levels of the driver. The three tiers or levels are General Impairment, High and Highest. In addition, there are specialized per se levels depending upon certain circumstances such as the age of driver or class of driver (CDL driver in a commercial vehicle or bus driver).
The third category deals with DUI with controlled substances (Driving under the Influence-Drugs, DUID). In Pennsylvania, you may not have any level of a controlled substance in your system while driving. Just like the alcohol per se law as mentioned above, this is independent of your level of impairment. Simply having the metabolites in your system and driving, if proven beyond a reasonable doubt, can lead to a conviction. For DUID, although the statute prohibits any amount, the Department of Health has established minimum threshold levels and publishes a schedule of them in the Pennsylvania Bulletin.
The fourth category is a combination of BAC and controlled substance levels. If you are found to be under the influence of a combination of both drugs and alcohol to a degree that you are incapable of safe driving or safely operating a vehicle, you would fall in the fourth category.
Understanding BAC and BrAC
While many people who have received a DUI in Pennsylvania don’t know about DUI laws in PA, The McShane Firm is well-versed in the rules and regulations and which rights are available to those charged with drunk driving in PA. We want to help you understand the basics of the law before you even begin to deal with your DUI charges. While many people believe that a recorded BAC (alcohol level in blood) or BrAC (alcohol level on breath) level is like a death sentence to a DUI case, under the new “Driving After Imbibing” legislation of 2004, that is no longer the case. The presumption of being incapable of driving when someone’s BAC is over.10 no longer exists. The “magic number,” .10, is no longer a magic number due to the fact that is now just one of many factors that a Judge or jury consider when examining a drunk driving in Pennsylvania case.
Understanding DUID
For DUID, or Driving Under the Influence of Drugs, the law prohibits any amount of drugs in the driver’s system while driving. However, the Department of Health has established minimum threshold levels and publishes a schedule of them in the Pennsylvania Bulletin, which can be used to fight DUI and DUID charges. In addition, BAC is simply a number, and in order for a conviction to come about, the BAC must be verified, reliable and proven as true. Likewise, in the United States of America, we have trials by Judge and Jury and not trials by machine, and oftentimes the machines used by the Government either blood analysis machines or breath analysis machines to be inaccurate or even broken. Faulty machinery cannot accurately record BrAC or BAC levels.
License Suspension for DUI or DUID
If you have been charged or arrested for a DUI, don’t hesitate. Some states do not have automatic suspension of licenses simply because someone is arrested or accused of a crime; many states have a 10 day rule. The 10 day rule allows the accused to challenge the immediate suspension of their license or face permanent loss of license. There is no such automatic suspension simply by being charged with a DUI in Pennsylvania or 10 day rule. All suspensions of Pennsylvania operator’s licenses are conviction based, except in the case of a refusal to take a blood or breath test upon demand.
In the case of a refusal, the Officer cannot automatically take your driver’s license on the spot. However, the Officer can send in a report called a DL-26 form and report the refusal to PennDOT. Typically, in the case of a refusal, shortly after the law enforcement officer turns in the DL26 form to PennDOT, PennDOT will issue you a letter setting a date typically not less than thirty (30) days but more than sixty (60) days for the beginning of a period of suspension that is separate from the conviction-based suspension. This suspension will become permanent unless you challenge the basis for it within thirty (30) days of the mail date as noted in the letter. A refusal is a very complicated case. These types of cases always have to be individually assessed. There are multiple winning defenses to a refusal case both in terms of the initial loss of license for the refusal itself and in terms of the criminal prosecution. A refusal, if proven beyond a reasonable doubt at your criminal trial, will carry with it the same penalty as if you were at the highest rate of BAC, meaning above a .16. The conviction based DUI suspension will run consecutively to the initial refusal based suspension. This is why a refusal case is so very serious.
- If you or a loved one has been charged with drunk driving in Pennsylvania, don’t hesitate to contact us. You have a right to fight DUI charges and you have rights under PA drunk driving laws. Contact us for more information or call at 1-866-MCSHANE.
