Top Ten PA DUI Defenses
1. The police cannot prove that you had actual physical
control of the movement of a motor vehicle.
The Pennsylvania DUI Law
requires actual physical control over the movement of a vehicle before
a conviction can result. Were you in the passenger seat? Were the keys
in the ignition?
2. The police cannot prove that you had a blood or breath
alcohol level of .08% within two hours of your having actual physical
control of a vehicle.
If police cannot prove
when you had control of the vehicle, they cannot prove that your blood
was drawn within two hours of the time of driving, which is required
under the statute.
3. There was not "reasonable suspicion" that a crime was
being committed, thus the traffic stop was illegal.
Without a "reasonable
suspicion" that a crime was being committed, an officer does not have
the ability to make a traffic stop. Crossing the yellow line or the
white fog line a couple of times has been found not to constitute
enough reasonable suspicion to make a stop. There are many other
examples where courts have found that there was not enough reasonable
suspicion to make a stop.
4. Due to variances inherent in chemical testing, the police
cannot prove beyond a reasonable doubt that your blood alcohol level
was over .08%.
In Pennsylvania, there
are three tiers of DUI offenses. If you blood alcohol is within twenty
percent of one of these tiers, it may be possible to offer evidence
that you were not "beyond a reasonable doubt" over the legal limit.
5. According to Commonwealth v. Haag, you cannot be charged
as a second offender until you have been sentenced on a first offense
or you have accepted ARD on a first offense. Make sure you are being
It also follows that you
cannot be charged as a third offender until you have been convicted or
found guilty of a second offense. This is due to a very recent caselaw
change and many prosecutors are not fully aware of the ramifications.
6. Breath testing equipment was not calibrated correctly.
Many times the breath
testing equipment used in the Commonwealth is very old. Many times the
machines are not calibrated correctly. Without proof of calibration,
the breath test results cannot stand.
7. An observation period was not used before breath testing
In order for the breath
test results to be accurate, the police must follow a strict twenty
minute observation period before they can ask for a breath sample. They
must closely monitor you to ensure that you do not eat or drink
anything during this time. Without proof that this period took place,
the breath tests are invalid.
8. The police did not have jurisdiction to make the stop.
Pennsylvania has a
multitude of different law enforcement bodies, each with jurisdictional
boundaries. If you were stopped by an officer who was outside of his
jurisdiction, the stop is most likely no good. Although exceptions
apply here to hot pursuit and other situations, many of these out of
jurisdiction stops can be successfully challenged.
9. The police did not have probable cause to make an arrest
after they made the traffic stop.
Once you have been
stopped, police have to have probable cause to arrest you. Many times
police use field sobriety tests that are not recognized by the National
Highway Transportation Safety Board. Many times police do not
have the required probable cause to arrest. When are arrest is made
without probable cause, a court cannot consider the evidence which came
10. The checkpoint was not valid.
To determine if a DUI
checkpoint is legal, courts look at 5 different factors. If any one of
the factors is missing, a court must find that the checkpoint was an
illegal stop, and the evidence produced cannot be used in court.
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