DUI Case Comes With Real Twist

The Lewistown Sentinel

August 1, 2006

By Linda Franz

Sentinel Reporter

A Carlisle man charged with driving under the influence even though he was a passenger hopes to have the case dropped in county court.

The incident started in the early morning hours the day after Christmas, when state police saw a vehicle driving erratically on Route 11 just west of Carlisle. Court documents say the car swerved from a turning lane back into the regular lane of traffic.

When police stopped the car, they saw the driver, Lucas Enbacker, holding a large hot dog sandwich in both hands and noticed a strong odor of alcohol. Court documents say the passenger, Derek R. Pittman, 26, of the 100 block of West North Street, leaned over and apologized, saying it was his fault the vehicle was swerving because he was steering while his friend was eating.

Pittman failed a field sobriety test and was taken to Cumberland County Prison where a .237 blood alcohol level – nearly three times the legal limit of .08 – was recorded.

Even though he was a passenger in the vehicle, troopers charged him with DUI, saying he had physical control of the vehicle.

h3. HEARING DELAYED

A county court hearing Tuesday was continued until Aug. 22.

Pittman’s attorney, Justin McShane, calls it a very unusual case and says his client has never been in trouble.

“Under the law, you either have to be driving the vehicle or be in actual physical control of the automobile,” McShane says. “Our defense is his conduct does not rise to being in actual physical control of the vehicle, even accepting the commonwealth’s case as truth.”

McShane says the trooper asked both Enbacker and Pittman if they had been drinking and both acknowledged they had. He says Enbacker passed field sobriety tests while Pittman did not.

The attorney calls the case an example of a “designated driver doing the right thing.”

“For a matter of seconds, my guy has his hands on the wheel but at all times the driver was in actual control,” McShane says.

The case first went to District Judge Jessica Brewbaker.

She would not sign the affidavit of probable cause to summon Pittman to court, writing that she did not believe the affidavit offered enough evidence to show he was in “actual physical control” of the vehicle.

The case was refiled before District Judge Vivian Cohick, who referred it to county court.

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