BAC 101
BAC 101:
A driver’s BAC is determined in three basic ways: Through a breath test, blood test or urine test.
Breath Test:
Most municipalities and the state have their police officers administer breath tests at a police station with a breath test machine. There are rules governing the maintenance and operation of the machines as well as the licensing of persons to operate the breath test machines. Failure of the police to follow these rules can lead to the dismissal of a DUI charge.
Blood and Urine Test:
The police are authorized to transport a DUI suspect to a hospital and have blood drawn or a urine sample obtained for the purpose of determining the suspect’s BAC. The samples that are obtained are sent to the crime lab where they are analyzed to determine the BAC. There are rules governing the testing and custody of blood and urine samples. Failure of the police to follow these rules can lead to the dismissal of a DUI charge.Test Warning
Before a breath test can be administered to or blood or urine sample obtained from a driver suspected of DUI, a driver must be given a warning that a knowing failure to cooperate and provide the breath or blood or urine sample will result in an automatic suspension of the driver’s license ranging from 6 months to 18 months (depending upon a number of factors including the number of prior refusals and DUI convictions). Further the driver that refuses to provide a sample may be subject to additional penalties including jail time and fines. Failure of the police to issue a refusal warning can result in the avoidance of the suspension and/or additional penalties. Charges Based Upon the Officer’s Observations
Sometimes a police officer can’t obtain a blood, urine or breath. As a result, the police officer may charge a driver with DUI if the officer believes that the driver is incapable of safely operating the vehicle. Typically, the police officer will support a charge of DUI on personal observations including field sobriety test results, the driver’s speech and appearance, the presence of the odor of alcohol, erratic driving and the driver’s involvement in an accident.
DUI and the Criminal Process:
A DUI charge is a criminal charge and is processed just the same as any other criminal charges. Click here for a description the Criminal Legal Process. However, there are some important issues unique to DUI.
Evidence Issues:
A DUI charge can be dismissed if the evidence gathered by the police is found to be inadmissible. The Courts require that the police follow the state and federal constitution, statutes, procedures and case law when gathering evidence to support an arrest for DUI. Questions that Delta will ask and that bear on evidence include:
Did the officer have probable cause to stop you?
This is a big issue in criminal law cases. Generally, a police officer cannot stop you without a good reason. A good reason includes: Investigating a violation of the motor vehicle code or some other law; Attempting to render assistance; or Participating in a DUI check point. Sometimes, a police officer will claim that the driver was violating a section of the Motor Vehicle Code like crossing the centerline or speeding in order to justify a stop. However, if the underlying criminal charge, like speeding, can’t be supported (for example if the officer failed to record your speed) then most likely the DUI charge can’t be supported and both charges will be dismissed.
Was the officer in the officer’s jurisdiction when gathering evidence and/or making the arrest?
Generally, a police officer must gather evidence and make an arrest of a suspect while the officer is located in that officer’s jurisdiction. There are some exceptions including hot pursuit (i.e. the officer gathered evidence sufficient to support an arrest while in the in the officer‘s jurisdiction and then followed the suspect out of the jurisdiction and made the arrest there).
Was the BAC measuring equipment properly tested, calibrated and certified?
Pennsylvania has rules governing the maintenance, calibration and certification of breathalyzer equipment and failure to follow these rules can lead to the exclusion of evidence obtained by the machine.
Was the BAC testing personnel properly certified?
Pennsylvania has rules governing the personnel who can operate breathalyzer machines and failure to follow these rules can lead to the exclusion of evidence obtained by the machine.
NOTE: This list of evidence issues is not exhaustive and there are endless evidence issues that can arise in a DUI case.
Sentencing Issues:
A person found guilty of a DUI can receive a sentence that can include all or some of the following:
Jail Time:
The amount of jail time or imprisonment a person convicted of DUI can receive depends on a number of factors including prior criminal convictions, prior DUI’s, the BAC level and whether there was an accident involving damage to property or injury to persons. Generally, the sentence will be served in the county jail for sentences under 1 year and in a state prison if the sentence is 1 year or more.
Home Detention:
The Judge has the option to order that a person convicted of DUI serve time under home detention aka house arrest. The person is required to pay for the home detention monitoring devise (consisting of an ankle bracelet and phone monitoring device). The person is permitted in certain circumstances (e.g. doctor visits and employment) to leave the home.
Detention Center:
The Judge has the option to order that a person convicted of DUI serve time in a halfway house or detention center. Sometimes the judge will allow release during the day to allow the person to go to a place of employment and return.
Probation:
Often, a person convicted of a DUI will be required to serve a period of probation. Probation is a form of punishment in which a person must abide by certain rules specified in a probation order. The rules include a requirement to obtain permission to travel outside of the state, refrain from future criminal activity and attend classes and pay fines ordered by the court.
Fines, Court Costs and Restitution:
Punishment for a DUI can include fines, court costs and restitution. The fines for a DUI conviction can run from $300.00 to $5000.00 depending upon a number of factors including the number of prior convictions for DUI and/or other offenses, the BAC, other offenses committed at the same time as the DUI and the discretion of the judge. Court costs vary based upon the number of charges and can run in the hundreds of dollars. Restitution is money damages paid to victims and can be ordered by the court when there is a victim that suffered financial loss as a result of the DUI (e.g. costs associated with the repair of a vehicle).
Drug and Alcohol Treatment:
Every person convicted of a DUI must undergo an evaluation to determine that person’s involvement with alcohol and/or drugs. If it determined after the evaluation that the person requires treatment, then the court can order that person to undergo treatment as required.
Community Service:
A driver convicted of a DUI may be ordered to complete up to a maximum of 150 hours of community service.
Ignition Interlock Device:
If a person is convicted of DUI more than one time, then they must have an ignition interlock device installed in all vehicles that are titled to that person. This requirement includes motorcycles. The interlock device randomly requires the driver of a vehicle (in which it is installed) to provide a breath sample by blowing into a tube attached to the device. If the device detects and impermissible level of alcohol in the breath then the vehicle becomes inoperable. The person must also obtain and maintain a special driver’s license that permits the person to only drive a vehicle equipped with the interlock device.
Driver’s License Suspension:
A person convicted of DUI may receive, non-criminal court sanctions which include suspension or loss of driver license privileges. The suspension period that a person may receive as a result of a DUI conviction can range from 0 months to 1 year or more. In general, the suspension period is 1 year for a DUI conviction. However, there is an exception to this general rule for some first time offenders that are accepted into special programs set up by each county’s District Attorney’s offices.
PLEASE NOTE! This is a basic description of issues associated with DUI law and the criminal legal process and does not include other steps and issues including filing motions and filing appeals. Every criminal case is unique and must be evaluated on its own facts and issues. Statutes and case law can and do change on a regular basis and can affect the outcomes of each case. Also, this description is of the Allegheny County process and the process in other counties may differ. Please note that the information on this page is not meant to be legal advice but purely for informational purposes only.
