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Current Issues in the Law


The 10 Year Look Back Period for DUI’s.

by Michael Waltman, Esq., February 5, 2016


The laws of the Commonwealth of Pennsylvania grade the seriousness of a D.U.I. on a number of things. Among those things considered, two stand out as generally the most important: 1) the level of alcohol in the person’s blood, and 2) the number of prior D.U.I. convictions the person has.

For instance, if a person has a prior D.U.I. conviction, and they are charged with a second D.U.I., the second DUI becomes far more serious than the first, even if the level of alcohol in the blood is coincidentally the same in both instances.

But what exactly constitutes a “prior conviction?” To calculate a “prior conviction,” for the purposes of grading a current D.U.I. charge, the Commonwealth has what we call a ten year look back period. If your prior conviction is over 10 years old, then the new charge of D.U.I. is not a second offense at all, but a first.

This leads us to an interesting problem: How do we calculate the ten years? At first, this seems like an easy question, but as you consider all of the possible dates that one could use to calculate ten years, the question quickly becomes complicated. Do you start counting at the offense date of the first offense or the conviction date? And when do you stop counting? The offense date of the new offense, or some other time in the court proceeding?

The law that answers this question has changed twice in the past six years, leading to three different methods of calculating what initially seemed like a simple calculation to make. Because the first two methods are now obsolete, we only need to concern ourselves with the current state of the law.

Per 75 Pa.C.S. 3806 (which can be found here ), which was adopted in December of 2014, we begin calculating the ten year period from the conviction date of the first offense. This makes perfect sense. However, it’s where we end our calculation that makes things very interesting. For the purposes of calculating whether your current offense is a second (or greater) offense, we don’t use the current D.U.I.’s offense date. We don’t eve use the current D.U.I.’s conviction date. Strangely, we use the current D.U.I.’s sentencing date to determine whether the current offense is inside or outside of the ten year look back period.

This method of calculation can lead to illogical results, but results that are incredibly beneficial to a client charged with a D.U.I. As an example, if you were convicted of a D.U.I. on January 1, 2007, and were then pulled over and charged with a D.U.I. on January 1, 2016, you would assume that this new charge would be inside the 10 year period. In fact, you would believe that it had been exactly 9 years since your last D.U.I.

As true as this logically is, cases can take a long time to go through the system. If by chance your case were to take a year plus one day to move through the system to your sentencing date, i.e, January 2, 2017, your second offense D.U.I. becomes a first offense D.U.I.

As is always true, it’s incredibly important to hire an attorney who understands all the intricacies of the law, so that your rights are protected. As with the issue above, this small nuance in the law can have a great effect on your life. What at one point might mean mandatory jail time, might become minimal probation an attorney that pays attention to all of the details of your case. Attorneys Waltman and Riester are the attorneys you can count on to make sure every angle of your case is covered, from start to finish.




Gun Bashes, Gun Shows, and the DUI from 2005

by Michael Waltman, Esq., January 22, 2016


Gun bashes can be a lot of fun and they’re normally held to benefit the local community. Good people, free beer, and the chance to win a new firearm. What could possibly go wrong?

Here’s the scenario: Your friend who works at the local fire station runs into you at the supermarket and asks if you’d like to buy a ticket to the Gun Bash they’re having this weekend. Sure, why not, you’re not much of a gun person, in fact, you don’t even own a gun. But it sounds fun and you don’t have anything else to do, so you buy the ticket and a few days later show up at your first Gun Bash. You eat a hamburger or two, drink a free beer or two, and look at the local gun store’s display tables. After a few more free beers, somebody asks you if you bought your raffle ticket yet. A raffle ticket? A raffle ticket for what? You love raffle tickets. So you buy 5. An hour and two more beers later, low and behold, your ticket gets called. You won! Specifically, you won a brand new Smith & Wesson M&P9. You just have to fill out a few forms…

The clerk behind the table hands you a Federal ATF Form 4473 (which can be found here). The 4473 is a six page document, the first two pages of which are questions, the last four pages of which are instructions in small print. You start filling it out. The first 10 questions are pretty easy: name, address, birthdate, etc. But then you get to question 11. This one’s a big one. It has twelve subsections under it, A through L.

You get to 11(c), “have you ever been convicted in any court of a felony, or any other crime, for which the judge could imprison you for more than one year?” Hmmmm, you remember that you plead guilty to your second DUI a decade ago, but you know it wasn’t a felony, and you only got a few months of house arrest and some probation. There’s a note beside the question indicating that you should look in the back for further clarification. So you do. Lots of fine print written by lawyers. But you look at it pretty closely. Ok, you found it. Even though the actual question asks about anything punishable by more than one year, the instruction specifically says that the question doesn’t mean what it says it means. The instruction says that question 11(c) “doesn’t include state misdemeanors punishable by imprisonment of two years or less.” Ok! You’re certain now that you’re in the clear. Although there’s no lawyer hanging around to ask, you’re certain that there’s no way your second offense DUI from a decade ago could have resulted in you going to prison for 2 years. So you check off the “No” box, answer the rest of the questions, sign the verification that everything is true and correct to the best of your knowledge, and hand it to the clerk.

After a few minutes, the clerk comes back and tells you that the form came back “denied.” Denied? Denied for what? The clerk can’t tell you because the clerk doesn’t know. What do you mean the clerk doesn’t know? The clerk really doesn’t know. He wasn’t given a reason. They never are. All he knows is that you were denied and you can’t take the gun. You shrug your shoulders in indifference, the fire station gives you the cash value instead of the new Smith & Wesson, and you walk home happy with $400 in your pocket. Fast forward seven months.

You just got the mail. There’s a certified letter. Never a good sign. You open it up. Your heart sinks. You need to sit down. You’ve just been served with a Felony Criminal Complaint. You’ve been charged with 18 Pa.C.S. 6111(G)(4)(i), Sale or Transfer of Firearms. You have absolutely no idea what this is about. You don’t even own a gun. This must be a mistake. You read through the complaint to try to decipher what’s going on.

As it turns out, remember that Gun Bash you went to? The one where you won a gun but got denied? That DUI you had ten years ago… was punishable by up to 5 years in prison. And now, the Commonwealth of Pennsylvania is going to make you a Felon because you weren’t aware of that fact. All because you didn’t know the maximum possible penalty from your DUI.

When I tell people that this scenario is a true story, they normally laugh for a couple reasons. First, non-lawyers have no idea that most second offense DUI’s are punishable by up to 5 years in prison. Second, non-lawyers can’t believe that the police prosecute cases like this. However, the truth is that the police prosecute every case like this. As a result, good hard working people who were just trying to support their local community have their lives turned upside down by the very real possibility of going to prison.

The take away from this is (1) if you’ve ever been convicted of anything, call your lawyer before you turn in any firearm related form, and (2) if you don’t, you’re going to have to call your lawyer anyway.



To Refuse or Not To Refuse. The Duality of Chemical Testing in DUI Cases

by Michael Waltman, Esq., September 18, 2015


As Hamlet contemplated two distinct unfavorable choices, either of which would have far reaching repercussions, so too must a person who is placed under arrest for Driving Under the Influence: To refuse chemical testing or not to refuse chemical testing?

Shortly after your vehicle has been pulled over and you subsequently and inevitably fail the field sobriety tests (heel to toe, finger to nose, recitation of the alphabet backwards (really), etc.), you are going to be transported to one of two places: 1) the local police station or 2) the local hospital. If you are taken to the police station, you can expect that you are going to be asked to blow into a breathalyzer. It should be noted that this machine is different than the handheld device the officer may have asked you to use on the scene of the traffic stop. The handheld device is simply a tool the police use to detect the presence of alcohol in your system, whereas the breathalyzer machine is intended to measures the actual level of alcohol in your system. If, on the other hand, you are transported to the hospital (which is the more likely scenario), you can expect that you are going to be asked to submit to a blood draw conducted by a member of the hospital staff.

In either event, the police officer is going to present you with a Pennsylvania Department of Transportation form called a "DL-26," which, as far as PennDot is concerned, explains your rights to either accept or refuse the testing. The form can be found at: http://www.padui.org/pdf/chem_test_warn.pdf

If you have found yourself in this position, you might not be in the clearest mental state. You might be intoxicated, you might be crying, you're nervous, you're scared, you're trying to figure out what to tell your family, you're experiencing emotions that you didn't even know existed an hour ago. But now you're being presented a two page form written in Legalese that makes little to no sense to you, and you have to make heads or tails of it within a few seconds.

To be abundantly clear, the DL-26 and the law on the matter, make it clear that almost anything but an affirmative "yes, I will submit to chemical testing," is deemed a refusal to chemical testing. This means you can't ask for an attorney, hesitate for more than the time it takes you to read the form, or phone a friend. This decision is on you and you alone, and your options are either to 1) say "yes" or to 2) do or say anything other than yes, which will have the effect of immediately deeming you a refusal.

This, like many decisions in life, is a decision you should make ahead of time if you find yourself to be the type that might at some point get behind the wheel of a car. You'll notice I didn't say "the type that might at some point drink and get behind the wheel of a car." Because remember, you may end up in this position despite the fact that you've had nothing to drink in years. Maybe you're just a bad driver, maybe you naturally have blood shot eyes, maybe you have a speech impediment that causes you to slur your words, maybe you suffer from vertigo, or maybe you otherwise exhibit any sign whatsoever that a brand new police officer is unable to distinguish from being related to alcohol. In that event, you could very easily be asked to submit to chemical testing.

Here is where it's important to realize that once the DL-26 is in front of you (and whether you have been drinking or not), two separate proceedings have begun: 1) The DUI itself, which will be handled in criminal court, and 2) the PennDot issue, i.e., your drivers' license privileges, that will be handled in civil court. Neither two journeys are connected, despite the fact that it would seem logical that they are, as further described below.

The DUI Criminal Charges: If you refuse the chemical testing, the very fact that you refused can be used against you at your trial. "But Mike, I thought I had a right to remain silent or not consent to searches and that my decision couldn't be used against me? How can this be?" Because the legislature and the courts have taken the position that your ability to drive isn't a Constitutional right. It's a privilege bestowed onto you by the government. In a nutshell, the logic goes that by applying for and using your drivers' license, you have given the government implied consent to search your body when you're driving a car. "Will the prosecutor be able to prove my blood alcohol content ("BAC")?" No. But in Pennsylvania, the prosecutor doesn't need to prove your BAC to prove that you were incapable of safe driving due to the ingestion of alcohol or a controlled substance. Through circumstantial evidence, you can still be found guilty of 75 Pa.C.S. §3802(a)(1), Driving Under the Influence of Alcohol or Controlled Substance, General Impairment. This isn't to say that you definitely will be found guilty, just that you can be found guilty without a BAC. Being found guilty of a DUI can, and in most cases does, cause your license to be suspended. But the suspension caused by your criminal conviction is separate and unrelated to the suspension you can receive for refusing chemical testing (as discussed below).

PennDot Issues: If you refuse to submit to chemical testing, the outcome of the criminal charges (whether you're found guilty or not guilty) is inconsequential to the action that PennDot is independently going to take. The mere fact that you refused chemical testing is going to trigger a one (1) year license suspension (more if you have a prior refusal). You might be thinking to yourself, "but Mike, the Judge not only found me not guilty, she went on and on about how great I was, and that she didn't believe that I refused the chemical testing. How is it humanly possible that I'm still going to lose my license?" The short answer to that incredibly reasonable question is that PennDot doesn't care what the judge said in your criminal case. If you want to challenge the officer's determination that you refused chemical testing, you have to file a separate appeal in civil court, and that judge will not in any way be bound by the findings of the judge in criminal court. If the civil judge doesn't rule in your favor, you will still lose your license for a minimum period of one (1) year. If you are found guilty in criminal court and you refused chemical testing, you will possibly face a license suspension from the conviction and definitely will face a license suspension from the refusal, and they will run consecutively to each other. As an example, if you refused testing on a second DUI and are found guilty of a 75 Pa.C.S. §3802(a)(1) General Impairment, you will lose your license for one (1) year because of the conviction and one (1) year because of the refusal. For a total of a two (2) year license suspension.

This area of the law can be incredibly complicated and can be incredibly nuanced. The above information is factual only and applies to the specialized sets of facts presented above. This information is intended as an academic piece of writing and in no way meant to give legal advice. As always, if you have been charged with a crime or have questions about your rights, contact an attorney immediately.



SPEEDING VIOLATIONS AS A COMMON GROUND TO STOP A MOTORIST FOR DUI

Commonly, motorists that speed are stopped by police officers on a daily basis. Some percentage of these individuals is also impaired due to alcohol. One would think that there is a direct correlation between these two offenses so that when an officer sees a person speeding, he can also surmise that the person is likely under the influence of alcohol. Surprisingly, the leading authority for law enforcement, the National Highway Transportation Safety Administration (NHTSA), has concluded that there are "21 driving clues" for which an officer can utilize in determining whether a person is driving while DUI impaired. Speeding is not one of the enumerated offenses.

In the event that a person is stopped for speeding and then arrested for DUI, one of the first legal issues that arise is whether the stop was valid. Kim Wm. Riester, Esquire, DUI lawyer of Meyer Darragh, has been extraordinarily successful in defending DUI cases based upon this issue. At first glance, speeding, however, appears to be much more difficult to defend than other types of moving violations. Typically, the officer's use a variety of speed timing devices from the speedometer, to stopwatches, to other computerized timing devices, to beam-like devices to radar (in the case of the Pennsylvania State Police). A thorough legal analysis of these devices, the procedures used, and the ability and certification of the operator is necessary to determine whether or not the speed was properly timed, giving rise to the stop of the vehicle.

For example, we have been very successful with respect to VASCAR-related prosecutions in which lines are painted on the highway at a prescribed distance and the officer monitors an electronic device in his police car, either while sitting or moving, which times the speed of travel. Search the web for the term-" parallax." One can readily discern that it is the juxtaposition of the officer within the confines of the speed trap which can create significant errors. In addition to the placement of the timing device in reference to the timing points, human error, of course, is always a factor. Concededly, such human error is often very difficult to prove in a given case, but the subject of cross-examination of the operator and common sense experience of every one of us.

Before even reaching the equipment and procedures used, Kim Wm. Riester of Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., will examine the jurisdiction authority and power of the police to enforce the traffic laws in the area. As stated in a previous "Developments" entry on this issue, we have defended several cases on the basis that the local police department was not authorized to enforce speeding laws on highways normally patrolled only by the Pennsylvania State Police. A mere agreement between the Pennsylvania State Police and the police department is insufficient under the Motor Vehicle Code, which requires an ordinance or resolution approving said agreement.

Additionally, the police officers themselves may not be properly authorized by enter another municipality even though there has been enacted a "cooperative agreements" enforce DUI laws, known as DUI Task Forces. An in-depth knowledge of the various municipal codes, whether it be a county, city, township or borough police department, is essential in defending similar DUI cases. In the event you retain an experienced DUI attorney, this defense should be investigated because the courts have held without refute that if the stop of the vehicle for speeding was invalid, then all of the evidence that was obtained thereafter (to include the signs and symptoms of intoxication such as odor of alcohol, bloodshot eyes, slurred speech, the "failure" of field balancing tests and/or the chemical test results [BAC percentage] are all directly derived from the stop). If all of this evidence is suppressed, then the case will likely be dismissed.



BLOOD TESTING II

Blood tests are very time consuming for a police department because it requires them to take the motorist to an emergency room in a local hospital for the collection of the blood sample. This is not only time-consuming, but takes the officers out of their normal patrol duties. For years, many police departments have used breath testing devices, which are currently on the market, being patented and produced on a routine basis. However, as noted in my previous blood testing Developments, breath testing devices are subject to numerous challenges for their precision, accuracy, reliability and types of margins of error. As previously stated, depending on when one completed his drinking and had fully absorbed the alcohol, the scientific literature states that these breath testing devices may be inaccurate by as much as 100%. Accordingly, police departments have and will continue to use blood testing at hospitals and even sobriety checkpoints using phlebotomists who are outside of the emergency room/department to obtain a blood draw.

It is recognized by everyone in the judicial and scientific community that blood test analysis is far more accurate than breath testing. One type of blood test is actually conducted by the hospital in which the blood was drawn. The equipment used, however, is not forensically approved, specific for ethanol (the chemical component of alcohol) and subject to a wide variety of errors from which some courts have ruled that the results are inadmissible into evidence.

The other type of testing is when the police take the blood to the toxicology department of a crime laboratory in and around their jurisdiction. This testing of the blood is done with gas chromatography, which is far more accurate than breath testing and hospital testing, if done properly. Many individuals, including judges, prosecutors, inexperienced or unlearned defense lawyers, assume, nevertheless, that these results are infallible. To the contrary, Kim Wm. Riester, Esquire, DUI lawyer of Meyer Darragh, and his colleagues, who concentrate in DUI defense, particularly through the National and Pennsylvania College of DUI Defenders, are well aware of numerous scientific and legal issues surrounding these types of tests, as well.

Indeed, in our experience, it is rare to find that the collection, transportation and later testing of the blood sample has been done in accordance with even the most fundamental scientific principles. Scientific literature on the subject is abundant as it has even been published in various national standards. Inexplicably, the laboratories fail to follow these standards and that of the manufacturer.

There have been many highly publicized cases in which a laboratory was fraught with fraud due to malevolent or biased technicians. Other cases are less heinous in that there may be "merely" a systematic negligence in the processing of the samples. Still other cases are unique to the individual case.

In summary, no attorney, judge, or jury should consider a blood test result as infallible. It is believed and taught by this author, primarily through the Pennsylvania Bar Institute, that such a position constitutes an ineffective assistance of counsel. Representing citizens requires that counsel obtain the proper documentation in order to assure themselves and defense experts that the results are, indeed, supportive of a conviction. See Developments regarding expert witnesses.



EXPERT WITNESS II

Many persons charged with crimes to include DUI are fearful that to have a thorough review of the case by an experienced lawyer is extremely expensive. Some percentage of these persons, however, will undergo the financial burden to obtain such legal counsel. Most people, in my experience, either do not have the financial resources or do not wish to expend same for an expert witness to counsel and advise the attorney of the factual issues involving the testing of the blood or breath. Moreover, most citizens do not want to expend their resources to have an expert appear in court.

How can a case be defended without expert witnesses? First, and most obviously, the more learned the attorney, the less need for an expert witness. Second, these experienced attorneys will have a plethora of resources available to them to obtain legal treatises and scientific literature on the subject. One of the main sources of this literature for attorneys who are members such as Kim Wm. Riester, Esquire, DUI lawyer of Meyer, Darragh, Buckler, Bebenek & Eck, is the National College of DUI lawyers which has extensive archives. In addition, its members have immediate access to numerous, renowned experts, both legal and scientific, who have extensively published peer-review articles and treatises on these forensic issues -- forensic meaning that the subject matter will be presented in a court of law.

Once the discovery materials have been obtained and reviewed at least by counsel and discussed with his colleagues, then the preparation for pre-trial and trial can commence in earnest. If the client does not have the means to obtain an actual expert to come into the courtroom, there are still various ways that experienced counsel has circumvented this dilemma. Trained lawyers know that there are many ways to make a record, rather than introducing the actual testimony of a witness. While merely introducing documents constitutes purportedly objectionable hearsay, often there are notable exceptions to this evidentiary requirement. Remember, it is not the obligation of the defense present evidence, but rather the unwavering burden of the prosecution to do so. Once an issue is raised concerning the unreliability of the chemical testing processes, the prosecutor through its experts must prove otherwise.

In conclusion, there are numerous ways in which a record can be made for the judiciary to review the abundant scientific literature and legal principles that can assist in defending a DUI case.



PROPOSED LOWERING OF BLOOD ALCOHOL LEVEL

The National Transportation Safety Board has, in 2013, recommended the lowering of the legal threshold from 0.08% to 0.05%. A political debate will commence as to whether the federal government will adopt these levels, thus requiring states to modify their pre-existing DUI statutes. However, a brief historical perspective is illustrious. Prior to October 2003, the statutory threshold was 0.10%. The threshold of 0.10% was based upon years of accumulated scientific evidence that led scientists, as well as legislators, to conclude that a person would be too impaired due to alcohol ingestion to operate a motor vehicle safely. The courts recognized that the statutes basing DUI laws on this level were reasonable because any citizen would have been aware of the levels of impairment. The courts even referred to the charts that were contained in places such as liquor stores.

By 2003, the Pennsylvania legislature succumbed to pressure from the federal government, which was in turn under pressure from lobbyists such as Mothers Against Drunk Driving (MADD) to further lower the rate to 0.08%. This movement was not based on any novel scientific studies, but rather, determined that the level of impairment should be at the lowest level under previous scientific literature. The Supreme Court, in cases such as Commonwealth v. Barud, invalidated a section of the DUI law which made operating a vehicle at such level an absolute crime, known as a per se violation. The legislature then, in response to Barud, created a statute in 2003-2004 which in essence makes it a violation to have alcohol in your system above the threshold level within two hours of operation.

Now, the movement is to lower the level to 0.05%. The disingenuous philosophical support for this proposition is that, once again, there are no new scientific studies which would lead one to conclude that a person is impaired at this threshold level also. In short, the science has not changed, but the social and political influences have -- thus, making convictions for DUI violations much easier.

The obvious constitutional challenge should this law be enacted is that the statute is not rational in that it is not based upon scientific principles relating to the physiology of the human body. Other obvious problems will arise in that the chemical testing devices for breath testing have not been modified since the pre-2003 era. Breath testing devices are still calibrated and accuracy checked at 0.10%. Ergo, there is no correlation between the testing and precision of the machine at the levels related to the statutory thresholds because the regulations never required that the manufacturers and others involved in the testing programs test at 0.08%. Should the new threshold at 0.05% be enacted, again these devices are not accuracy tested at that level. They are calibrated in one of three tests at 0.05%, but only as the lower end of the spectrum. Fundamental notions of calibration require that there be three levels of testing, with the minimum statutory standard, whether it be 0.10% or, later, 0.0% being the middle of the testing range. Common sense tells us that if you only test at one end of the spectrum, then there is far less accuracy and precision in the testing device.

More problems exist since the statute prior to 2003 provided that there were certain levels which could be introduced into evidence in criminal trials for DUI prosecutions. If the level exceeded 0.10%, the person was presumed to be under the influence and thus, the chemical test results would be admissible into evidence. If the results were from 0.05% to 0.10%, then the results were not automatically admissible, but dependent on the facts and circumstances in each particular case. Finally, less than 0.05%, the person was absolutely deemed not to be under the influence and thus, the results were inadmissible in a criminal trial.

In 2003-2004, the legislature did not repeal the section and replace it with provisions relating to the new statutory threshold (i.e. 0.08%), but rather deleted the section altogether. This term used by the Legislature has never been used before. Since 2003, it is still unclear whether a result under 0.08% would be admissible at trial. One argument is that, since the Legislature lowered the threshold to the very bottom of the scientifically based impairment threshold, that any result less than that (i.e. 0.0799% to 0.001%) would not be admissible. However, a prosecutor could assert that any amount of alcohol could be admissible along with other factors, even though less than the statutory threshold because there is nothing in the statute that precludes them from doing so.

Kim Wm. Riester, Esquire, DUI lawyer of Meyer Darragh, has asserted in his teachings and in cases representing clients that such amounts (i.e. 0.0799% to 0.001%) should not be admissible because the Legislature did not expressly authorize same. Without such authorization, since the prosecution has the burden of proof, a court cannot simply assume that the Legislature intended that it is automatically admissible. And moreover, there is no scientific evidence or even a common sense basis (from the traditional DUI charts [Not only does a person merely need to view the "charts" depicted in the State Stores, but can search online to determine various alcohol levels consistent with such a degree of impairment that one cannot drive an automobile safely.]) that would lead one to conclude that anybody at any of those levels from 0.0799% to 0.001% is impaired by alcohol to drive. Accordingly, the laws are passed by the legislatures of various jurisdictions based upon political and social concerns as opposed to scientifically valid conceptions. it is then up to the courts to decide if such failure would violate the fundamental rights of a citizen. Remember, simply stated, it is not a crime to drink and drive, but only to drive while impaired due to alcohol to such a degree that one is incapable of safe driving.



WHAT IS PADDDA?

PADDDA is a collegial association of attorneys who advocate on behalf of the motorist among us who has been accused of a DUI or DUI-related offense by the Government. We hold PACLE board approved continuing legal education courses to educate advocates. PADDDA is duly organized and registered with the Pennsylvania Department of State. Members of PADDDA are among the most qualified and experienced DUI defense attorneys in the Commonwealth of Pennsylvania. They share a commitment to honest, skillful, and determined DUI defense for all citizens of the Commonwealth of Pennsylvania. We represent the motorist and citizen among us accused in the courtroom.



POLICE OFFICER CREDIBILITY (PART II)

In Commonwealth v. Cruz, DUI Attorney Kim Wm. Riester's client was stopped for a minor equipment violation, smelled of an alcohol-like odor, and was frisked by police for weapons. Drugs were found in his pocket and, according to a police officer, observed in plain view in the console. A typical scenario in a DUI practice.

The Court found that the police officer had, however, failed to tell the truth regarding his observation. Furthermore, the Judge ruled that the officer illegally seized from drugs from his pocket because it was not apparent as a weapon. Cruz was readily acquitted of very serious drug charges, although convicted of the DUI.



POLICE OFFICER CREDIBILITY

When a highly decorated DUI police officer charged DUI Attorney Kim Wm. Riester's client, the client asserted, as most do, that the recitation of the incident by the officer was not entirely factually accurate. Although the license plate number and description of the vehicle were precise, he submitted that he was not on the roadway as reported.

Based upon previous successes, DUI Attorney Kim Wm. Riester obtained over 100 police reports from this very same police office for prior DUI arrest. Virtually every arrestee was alleged to have driven on the same roadway, and in the exact same manner (e.g. weaving across the centerline a distance of 12 inches).

Many of the other details of the purported signs and symptoms of intoxication (odor, eyes, speech, gait, balance test results, etc.) were precisely the same. Not surprisingly, however, the BAC% varied from unknown (in cases of refusal or malfunction of equipment) to very high.

How could 100 different individuals have the same effects from varying amounts of alcohol? Scientifically, toxicologically and intellectually, this was impossible. This officer used a "boiler plate" report, without taking the time to alter the vast majority of the details including the roadway traveled. Commonwealth v. Ryan Miller, 149 P.L.J. 176 (2001); Commonwealth v. Nye, CC No. 8308774.



CHARGES FILED TOO LATE

In 2012, DUI Attorney Kim Wm. Riester, relied upon a decision published in 2005, in which he successfully persuaded a Common Pleas Judge to dismiss DUI charges against a citizen because the police department failed to file the charges within five (5) days of the arrest. While in the past such a violation of the Rules of Criminal Procedure resulted in dismissal of the charges merely upon the delay in filing, the Supreme Court of Pa. later ruled that dismissal was warranted only if the motorist could show prejudice from the delay. This has been demonstrated to be a very difficult standard to prove. Merely because the charges were filed late, how could a motorist prove that he would have taken additional action had the charges been filed on time?

In Commonwealth v. Kearney, 155 P.L.J. 135 (2007), Riester showed this prejudice through expert testimony. When a blood sample was taken from Kearney, the hospital, police, and crime laboratory neglected to freeze the sample, but only refrigerated it. DUI Attorney Kim Wm. Riester proved that the sample was not properly preserved so that bacteria could likely have entered the vial which can cause an increase in the blood alcohol concentration (BAC%) and, had it been frozen, it would have been suitable for retesting indefinitely. This failure was held to have deprived Kearney of his constitutional right to test the prosecution evidence (blood sample). The Court agreed with DUI Attorney Kim Wm. Riester's expert that the sample should not have been tested under national standards.

Since 2005, DUI Attorney Kim Wm. Riester has used this precedent to obtain dismissal of other client's charges under similar circumstances. The key is knowing the intricacies of the blood testing process.



THE IMPACT - "NEW" DUI LAW OF 2003-2004

As in the case of breathalyzers, blood tests are of paramount importance because the Pennsylvania DUI Law, as in all states, promulgates legislation that is interdependent upon the specific results of these tests.

Prior to 2003, the crime of DUI required proof that a person drove with a blood alcohol concentration (BA%) of greater than .10%. The Motor Vehicle Code provided that if a person's level was less than .05%, it was irrefutably not sufficient to prove a DUI charge. If the person's level fell within .05% to less than .10%, then it would depend upon the unique facts of each case. Even if the person was .10% or greater, the prosecution had to prove that the motorist had been over this limit at the time he drove, not the time that the breath or blood sample was obtained. This was very difficult for prosecutor's to prove, because most motorists would be less than the legal limit at the time they drove!

Undaunted, prosecutors and the organization, Mothers Against Drunken Driving, were successful in instituting a change in the law in 2003. First, the minimal level changed from .10% to .08%, which, for most people, constitutes approximately two (2) drinks.

Also, The ranges (below .05%; .05%-.099, above .10%) were "deleted" so that it is unclear whether any level (.001%) could be utilized to prove a person guilty of DUI. Obviously, I adopt the position that by removing these ranges, the Pa. Legislature has implied that any level below .08% BAC cannot be held as evidence to convict. Finally, the new Law removed the requirement that the DA prove what a person's exact level was at the time he/she drove. Now, as long as the sample was taken within two (2) hours of the time of the traffic stop, it is sufficient to convict. Despite the argument that many drivers would be less than .08% at the time of operation, as opposed to the level at the time of the test as long as two (2) hours later, the Pa. Supreme Court upheld this rule in May of 2007, in Commonwealth v. Duda 592 Pa. 164, 923 A.2d 1138 (2007).

The Law now codifies three levels which are important because the sentences for each vary significantly. These levels are .08%-.099%, .10% to .159, and greater than .160%. Hence, the "exact" percentage (%) of a person's BAC is paramount in a DUI case.

As you can readily see, it has become very easy for a prosecutor to obtain a conviction for DUI with the imposition of the Two Hour Rule. It should be just as equally clear that the BAC% as reported by a police officer in a breathalyzer case or a technician from a crime laboratory in a blood analysis case, are the most critical evidence in these types of cases. How does a person categorically demonstrate that the BAC% is not exactly or even close to the level that the Government wants you to believe? (See Challenging the Chemical Testing of Blood on this website).



CHALLENGING CHEMICAL TESTING OF BLOOD OR BREATH

A citizen does not have any burden of proof in any criminal prosecution. Rather, the prosecutor has the burden of both proof and persuasion, to show that the BAC% is precise, accurate , and reliable (i.e., in compliance with all statutes and regulations enacted by the Department of Health and Transportation). First, Kim Wm. Riester, Esquire, argues that the Legislation itself is invalid because it fails to address many fundamental notions of fairness, reasonableness, and scientific principles. This is done by presenting a comparison of statutes and regulations from other states, in addition to peer-reviewed, unquestioned scientific research. Pennsylvania does not even follow the nation standards, in this regard. This proposition was argued years ago successfully by another attorney in a case involving Penn Dot, in which the court said that due to this legislative failure, every police department in the state is free to adopt it own standards.

Next, DUI Attorney Riester, asserts that the Departments of Health and Transportation neglected to enact the regulations required by the Legislature.

Again, this requires a comparison between the regulations which have not changed in many years and the aforementioned national and state standards.

In addition, on behalf of our clients, we challenge the personnel, equipment and procedures used in a particular case. This is because a provision related to the DUI Law states that before the prosecutor can introduce the BAC%, proof of these elements must be established. Often times, it is not the fact that perhaps proof of these elements was not present, but rather that the district attorney, police officer, hospital, or laboratory does not properly authenticate the proof necessary to comply with the statutes/regulations.

I have previously discussed "Discovery Violations," where courts have dismissed DUI cases simply because the prosecution was unable to comply with a Court Order. Additionally, in blood testing cases where a blood sample is performed in a hospital emergency room, the nurse who performed the blood draw, known as venipuncture, may not be available or, even if available, does not have any documentation or recollection of a particular procedure. In such a case, obviously the DA is unable to show compliance with the law.



PRESENTING A DUI DEFENSE WITHOUT EXPERT WITNESSES

Obviously, it is preferable, if a motorist has unlimited financial resources, to hire the most esteemed experts so as to consult and prepare the defense attorney and later testify at pretrial hearings and/or trial. In reality, most citizens lack such funds. Nevertheless, DUI Attorney Kim Wm. Riester, Esquire, as a Member of the National DUI Defenders Association and Founding Member of the Pennsylvania DUI Defenders Association, has instant electronic access to many of these experts, who are also members. In addition, each association has vast archives of scientific as well as legal authority on all DUI matters, especially the testing of blood and breath for alcohol. We attend numerous seminars on this subject matter, where each attendee actually performs the procedures for educational purposes.

Furthermore, DUI Attorney Kim Wm. Riester, teaches other attorneys, law clerks, and judges legal issues related to blood and breath testing at the Pennsylvania Bar Institute - the premier legal continuing educational institution.

Using the knowledge gained through consultation with the experts and review of the scientific literature, I am prepared to address the facts of each case, to determine whether the prosecutor has the requisite proof to establish the elements required by statutes/regulations. Also, nationally recognized legal scholars provide daily recommendations for legal issues to be raised in each of DUI Attorney Kim Wm. Riester's cases.



DISMISSAL WHEN DISTRICT ATTORNEY/POLICE VIOLATE ORDER OF COURT FOR DISCOVERY

A client whose employment contract required him to possess a valid Pennsylvania Driver's License, was charged with DUI. If convicted, as a second offender, he would lose his job, even though he knew that he could use his finances to make alternative arrangements to travel for work. DUI Attorney Kim Wm. Riester began the defense at the Preliminary Hearing before the Magistrate District Justice court by requesting that the police department produce records of the breath test. They refused to do so. As the case proceeded through the Court of Common Pleas, extensive motions were filed to include a Motion to Compel the Prosecution to Produce Discovery materials along with all records pertaining to the breath testing device. The police department refused. The evidence of his breath test was suppressed, or excluded, from the trial! Simply stated, the prosecution violated that Order of Court granting discovery. The most serious charge was dismissed.

A lesser charge of DUI proceeded. However, a similar motion demanded production of records related to the "field (balancing) exercises" which the police like to call field sobriety tests. Again, through either bureaucratic error or recalcitrance, the prosecutor failed to comply with the Order of Court. Inexplicably, the same Judge ruled that evidence of these tests would be excluded, but that the officer could testify to what he saw -- swaying while balancing, etc.

In addition, the judge ruled that the District Attorney could present an expert (police officer) to testify to these "test results," thereby circumventing the failure to produce the documents. The motorist was convicted by the same Judge, despite Riester's assertion that he could not effectively present a defense without the use of these documents and sanctions against the prosecutor.

The case was appealed to the Superior Court of Pennsylvania, which upheld the conviction by not ever addressing this issue! The Court's opinion is unpublished which means simply that it has no judicial precedent.

The motorist was sentence to a mere six (6) months probation with no suspension of license. Despite the fact that client has previously accepted a diversionary disposition on a DUI charge within the ten (10 year) Look Back Period, Riester successfully convinced this Court that the prosecution could not employ the use of this prior record to enhance his penalty on the later conviction (i.e. as a Second offender) since they failed to properly file the charges in accordance with the law. The motorist has not lost his long-standing employment. This case, lasting over four (4) years, demonstrates the fortitude of the client to pursue his defense at great length.



WHAT IS A PRELIMINARY HEARING

A preliminary hearing in Pennsylvania is a court proceeding before a local magistrate, known as a district justice magistrate, who decide whether there is sufficient evidence that a case should proceed onto a jury or non-jury trial in the Court of Common Pleas of the county in which the crime is committed. In many jurisdictions and, particularly, in the federal judiciary, there is no right to such a hearing. Unless certain motions are filed, the case may proceed from the point of the arrest into the trial. In Pennsylvania, there is a right to this hearing.

Magistrate District Justices (formerly Aldermen, Justices of the Peace, etc.), are not lawyers. There is no requirement that they be a Member of the Bar. However, they are sworn and trained to follow the law. Some will take the time to review legal precedent and scientific evidence, while others do not. This should not dissuade a DUI Attorney from "making a record." If a Magistrate fails to follow fundamental Rules of Evidence, statutes, regulations, etc., the case can be reviewed by a "higher court"- the Court of Common Pleas (where the jurists must be Members of the Bar). This is accomplished by the filing of a pleading entitled, Petition for Issuance of a Writ of Habeas Corpus. If the Judge determines that a Magistrate has committed legal error, she/he has the authority to remand the case back to the JP, to conduct another hearing or to dismiss the case. In either way, the issues raised are reviewed.

Many attorneys and citizens perceive that a preliminary hearing is a meaningless judicial endeavor in that with the influx of pressure from Mothers Against Drunk Driving (MADD), courts are unlikely to dismiss DUI charges at this level. Accordingly, numerous clients are advised by lawyers to "waive" this proceeding, meaning that no hearing is conducted and the entire case will proceed to court. As stated, in many cases, the next opportunity for the accused and his lawyer to confront the witnesses (arresting police officer) is in a trial. Once at trial, there are only two alternatives -- guilty or not guilty. Would you like to be the person sitting in a courtroom, where your legal counsel has little or no idea what the witnesses against you are going to say. There are no depositions in criminal court, as are common in civil proceedings.