The McShane Firm, LLC - Law Offices

About Us : D.U.I. F.A.Q.

Q: Can you tell me generally about the DUI law in Pennsylvania?

A: Pennsylvania faced with the prospect of losing lucrative federal highway funding on the 11th hour enacted legislation repealing the old DUI statute which would have been found under Section 3731 of the Pennsylvania Vehicle Code (Title 75), in favor a very complicated progressive recidivist multi-tiered model of criminal liability for the offense of Impaired Driving. Since the 2004 enactment of the new "DUI" law now re-codified in the Pennsylvania Vehicle Code (Title 75) section 3802 et seq. entitled "Driving After Imbibing", the Pennsylvania legislature has sub-divided the "new" DUI into 4 basic categories:

First is the "incapable of safe driving" subsection which has no attachment to a particular BAC level, but requires instead that the Commonwealth prove beyond a reasonable doubt that at the time of driving that the person was substantially impaired by either controlled substances or alcohol or a combination of both to a degree that they were rendered incapable of safe driving. The substantial impairment must be to the essential safe operation of the vehicle and not to tangential peripheral matters. The person's purported BAC level is but a factor that the Jury or Judge may consider but arises no presumption under the law.

The second subsection is the per se DUI offense levels. A per se statute such as Pennsylvania means that even absent of any sort of evidence of impairment (meaning you could be 100% fully functioning both cognitively and physically), you may be held criminally culpable simply by driving within two (2) hours and having beyond a statutorily prohibited level of alcohol in either your breath (BrAC) or blood (BAC). This per se level is further divided into 3 tiers: General Impairment, High and Highest. There are specialized per se levels depending upon certain circumstances such as the class of driver (CDL driver in a commercial vehicle, bus driver) or age.

The third subsection is to DUI with controlled substances (Driving under the Influence-Drugs, DUID) in that as the statute itself reads, 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 final subsection is 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 (as defined above).

Q: Well, I’m in really big trouble because in my case my BAC level is well over .16. Once they enter the number into evidence, I’m done, aren’t I?

A: Under the old version of Pennsylvania’s DUI there was a rebuttable presumption of incapable of safe driving if one’s BAC was above a .10. However, as of 2004, with the new Driving After Imbibing law, that presumption no longer exists. So, “the magic number” loses a lot of its old punch under the new law. The “magic number” is now but one of many factors for the Jury or the judge to consider in a DUI case. 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. There are many defenses that are available that can and do win in court. A BAC is simply a number. In order for a conviction to come about, the BAC must be verified, reliable and proven as true. We have trials by Judge and Jury and not trials by machine in the United States of America. Many times we have found the various machines used by the Government either blood analysis machines or breath analysis machines to be inaccurate or even broken.

Q: The DUI just happened, aren’t they going to take my driver’s license away right away?

A: No. A lot of other states have an automatic suspension just by the simple fact that someone is arrested and accused of a crime. Usually, in those states, one accused of a DUI must challenge their immediate suspension within ten (10) days or they face permanent loss of license (i.e., the 10 day rule). 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.

Q: What should I do?

A: Call us now at 1-866-MCSHANE. We want to evaluate and defend you in Court.