PENNSYLVANIA’S DUI LAWYER

The initial method for determining intoxication during the traffic stop is the field sobriety test. After the police officer pulls you over, factors such as whether or not you have alcohol on your breath, slurred speech, or red eyes and glassy eyes will be considered. If the officer suspects that you’re intoxicated, you’ll be asked to get out of the car and perform several tests, such as the one-legged stand, walk a straight line, and horizontal gaze nystagmus. The purpose of field sobriety testing is to help the officer determine if you are intoxicated or otherwise impaired and should be arrested for DUI. At least two clues of intoxication must be detected. Field sobriety tests are given at the discretion of the police officer and are considered voluntary.

The Portable Breath Test machine, commonly known as the Preliminary Breath Test or PBT, is usually given at the scene to the driver to determine if he is over the legal BAC limit of .08%. The difference between a PBT and a formal breath test is reliability. Although PBTs offer an advantage of a hand held machine in terms of mobility, these devices are far less accurate than those used at the police station or a DUI Center. Thus, a hand held PBT machine is more likely to deliver false readings than an Intoxilyzer 5000 or Datamaster Breath Test Machine. Therefore, these devices should only be used to establish probable cause for your arrest and their numeric results cannot be used as evidence against you in court. Officers are only allowed to testify that the PBT results indicated only the presence of alcohol. Unlike formal breath tests, PBTs are entirely voluntary and you are not required to blow into the PBT breath machine when you are being investigated for a PA DUI. However, if you refuse to submit to a portable breath test, you can still be taken to the police station or DUI Center for a formal breath, blood or urine test. It is important to know that, due to implied consent laws, you are required to submit to any type of formal chemical testing (such as breath, blood, or urine).

In fact, if you refuse to take a formal breath, blood or urine test, you may face more severe penalties than if you would have taken the test and failed.

Horizontal Gaze Nystagmus (HGN)

Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person may have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a person as the person follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three (3) indicators of impairment in each eye:

– Eyes cannot follow a moving object smoothly.
– Jerking is distinct when the eye is at a maximum deviation.
– Angle of the onset of jerking is within 45 degrees of center.

The HGN test is complicated. Frankly, there are countless police officers with little or no training in accurately conducting this test. Further, the test is usually conducted in less than ideal settings, such as at night, on the side of the highway, with bright lights within view. Further, Nystagmus may be a medical condition you were born with or acquired. Finally, Nystagmus can be caused by numerous other substances or exposure to various chemicals.

Walk and Turn (WAT)

The Walk-and-Turn test and One-Leg Stand test are “divided attention” tests. They require a suspect to listen to and follow instructions while performing physical movements that have no relationship to driving. These tests are not on the driving test and their relevancy is questionable.

In the Walk-and-Turn test, the driver is (in theory) directed to take nine steps, heel to toe, along a straight line (usually imaginary). After taking the steps, the driver must turn by taking a series of small steps and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment:

-Cannot keep balance while listening to instructions.
-Begins walking before the instructions are finished.
-Stops while walking to regain balance.
-Does not touch heel-to-toe on each step.
-Steps off of the line.
-Uses arms to balance.
-Makes an improper turn.
-Takes an incorrect number of steps.

Only Seventy-Nine Percent (79%) of individuals who exhibit two (2) or more indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998). Further, Officers regularly give incorrect or insufficient instructions. Officers also fail to demonstrate the test or demonstrate it incorrectly. And again, these tests are conducted under often impossible circumstances (ie: on the side of the interstate with cars speeding by at 90mph). Also, a persons own physical limitations or previous injury may impact their ability to perform this test.

One Leg Stand (OLS)

In the One-Leg Stand test, the driver is instructed to stand with one foot approximately six inches off the ground and count out loud by thousands until he or she is told to put the foot down. The test should last no longer than Thirty (30) seconds. The officer looks for four (4) indicators of impairment:

– Sways while balancing.
– Uses arms to balance.
– Hops to maintain balance.
– Puts foot down.

Only Eighty-Three Percent (83%) of individuals who exhibit two (2) or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998). Here again, there are countless issues with officer training, test conditions, improper instructions/demonstrations, and physical limitations.

The breathalyzer test, usually administered at the police station, is important evidence used against you by the prosecution. This machine measures the amount of alcohol in your blood, referred to as BAC. Since 2003, and the passage of Act 24, the illegal blood alcohol content for drivers 21 years old and over in Pennsylvania is .08 or higher. If you are under 21, you are considered to be DUI if your BAC is .02 or greater. Breath machines require maintenance and calibration, and sometimes give faulty readings. There is also the possibility of human error from the police officer administering the test. According to the National Highway Traffic Safety Administration (NHTSA) an estimated 23 percent of drivers tested with a breathalyzer will have a BAC higher than their actual blood alcohol content.

Law enforcement officers typically administer a blood test, also used to determine your BAC. For some of his clients, Attorney Kellis has discovered that the BAC was lower than the legal limit after retesting blood samples through a private lab. An expert needs to examine every detail of a DUI charge in order to provide a successful defense.

There are three different warnings, and the officer must read the correct warning. This warning gives you the option of either taking a “Chemical test” (or tests) or “refusing the test”. The officer designates which type of test (blood, urine, or breath). Occasionally an officer will not read the Implied Consent warning at the time of arrest, or does not read the Implied Consent Warning properly. This may be grounds for the exclusion of the Chemical test. You do not have the right to have an attorney present at this point, however, you have the right to refuse to take these tests. The implied consent warning (in relevant part) indicates that should you choose to refuse the tests “your driver’s license may be suspended for a minimum period of one (1) year.”

They must prove (in many cases, where a test was given) that the test was done properly and on a machine that was working properly and had all of its electronic and operating components attached and in good working order. They must prove (in the case of adults, and on DUIs where alcohol is the alleged intoxicant) that your BAC was over a 0.08 within two (2) hours of driving. While officers can and do request the three types of chemical tests, breath tests and blood tests are the most common. They must prove (in the case of drivers under 21, and on DUIs where alcohol is the alleged intoxicant) that your BAC was over a 0.02.

Steven Kellis has successfully defended more than three thousand DUI cases in various jurisdictions around the Commonwealth of Pennsylvania. Mr. Kellis regularly takes DUI cases to trial and has a high success rate. Many times these cases involve traffic accidents, eye witnesses, high blood alcohol (BAC) levels, prior arrests, and refusals. Further, because of Mr. Kellis’ reputation and expertise in DUI defense, and because he is known for taking DUI cases to trial, he is often able to secure a dismissal or reduction of charges.