Category Archives: Pittsburgh DUI

What does Birchfield v. North Dakota mean for Pittsburgh DUI cases?

I have received many calls over the past several months asking how the United States Supreme Court decision in Birchfield v. North Dakota 579 US __(2016) affects Pittsburgh DUI cases. Let me preface this discussion by stating that Birchfield does not apply to breath test requests by police because the Supreme Court held that breath tests are less intrusive than blood tests. Thus, if you submitted to, or refused, a breath test Birchfield will have no bearing on your Pittsburgh DUI case.

Birchfield v. North Dakota

The Court in Birchfield addressed two major issues regarding blood draw requests. First, whether police need to have a warrant to have blood drawn in DUI cases. Second, whether State DUI laws may impose enhanced criminal penalties for refusing a blood draw request.

 

 

WARRANTLESS BLOOD DRAW UNDER BIRCHFIELD AND PITTSBURGH DUI LAW

In Pennsylvania, when police request that a motorist submit to a blood draw for suspected DUI they must first read a DL-26 form to the person. At the time Birchfield was decided (June of 2016) the form told motorists that they did not have a right to refuse the test and that  if they refused their license would be suspended for at least 12 months. Further, some versions of the form stated that they could face additional criminal penalties for refusal. The Birchfield Court ruled that the combination of blood tests being intrusive and the form being coercive in nature required that police obtain a warrant before obtaining a blood sample.

The response of the government in Pennsylvania was to change the DL-26 form to make it less “coercive”. This change was enacted in July of 2016 and PA trial courts seem to believe that these changes to the DL-26 form negate the need for a warrant under Birchfield. Thus, in cases where blood was drawn prior to July of 2017 the blood test results cannot be used, however, those drawn after that date will generally  be admitted by PA courts.

ENHANCED PENALTIES FOR REFUSAL OF A BLOOD DRAW REQUEST

Pittsburgh DUI cases carry mandatory minimum sentences which are calculated, in part, on a three tiered Blood Alcohol Content system. Pennsylvania DUI Law states that refusal to submit to a chemical test places one in Tier III which results in a higher Mandatory Minimum sentence. However, the Birchfield Court stated that while it is legal for a state to impose a civil penalty involving license suspension for refusing a blood test it is unconstitutional for a state to impose an enhanced criminal penalty for refusing a blood draw. The court held that “It is another matter, however, for a State not only to insist upon an intrusive blood test, but to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Birchfield v. North Dakota 579 US ___ (2016) (emphasis added). Thus, pursuant to Birchfield, you may have your license suspended for refusing a blood draw but your mandatory minimum sentence must now be calculated as if you were in the lowest Tier.

WHAT DOES THE FUTURE HOLD FOR PITTSBURGH DUI CASES AFTER BIRCHFIELD?

First, It should be noted that it is possible that Pennsylvania’s appeals courts might rule in the future that the changes to the DL-26 form were not enough and circumstances could change once again. If that were to happen Police would no longer be able to ask for a blood test without a warrant and if they did so those results would be inadmissible.

Many Police Departments cannot afford the cost associated with using a certified Breath Test Machine and have no choice but to rely on blood tests. There is the possibility that the Pennsylvania Legislature could change the DUI Law to allow alternative types of testing as currently only blood or breath testing is allowed under Pennsylvania DUI Law. One possibility that has been circulating is that the DUI Law might be amended to allow Mouth Swabs to determine BAC. Whether these types of tests are actually accurate and whether they would be considered more intrusive than breath tests remains to be seen.

As you can see, Pittsburgh DUI Law – particularly involving blood tests – is an ever changing area of the Law. If you have been charged with, or stopped for, a Pittsburgh DUI you need to contact an experienced Pittsburgh DUI Attorney immediately to have your case analyzed by someone who is experienced and fully aware of the current state of the law.

Pittsburgh DUI Lawyer George Heym is a former DUI Prosecutor who now exclusively defends those charged with DUI. He offers a Free Consultation on all DUI cases. you can schedule a consultation via his website or by calling or texting him on his cell phone at 412-216-4984.

 

 

Marijuana related DUI Laws in Pittsburgh, Pennsylvania

pittsburgh marijuana DUI lawyerI am often asked questions regarding Pittsburgh DUI Law after ingesting Marijuana. Clients will ask me “I can’t be charged with DUI because I ingested Marijuana several weeks ago, right?” Unfortunately, this is not necessarily the case and this area of Pittsburgh, PA DUI Law can be very confusing. Thus, I am providing an overview of Pennsylvania Law in this area and how it affects motorists.

The first thing to note is that Marijuana is classified as a Schedule I drug under Federal Law. This means that it has been defined as having no medical or research value and it cannot be prescribed by a physician – despite many state laws being to the contrary. This is important because Pennsylvania DUI Law uses the Federal designations of controlled substances.

Pennsylvania DUI Law creates a “zero tolerance” rule for all Schedule I drugs. The standard applied to Pittsburgh Marijuana DUI cases is whether you have ANY amount of the active ingredient of Marijuana in your blood. Pennsylvania DUI Law does not require that it be proven that it actually affected your ability to drive. Contrast this with prescribed Schedule II drugs where it must be proven that the drug “impaired” your ability to drive, or alcohol where it must be proven that you were “under the influence to the extent that you were rendered incapable of safe driving”.

Further, PA DUI Law states that having ANY amount of the metabolite of Marijuana in your blood also qualifies as DUI. The metabolite of Marijuana is what is produced by your body when it breaks down Marijuana after ingestion. The metabolites of Marijuana can remain in your system for up to 30 days. Obviously, this can create bizarre and unfair situations. For example, you could ingest Marijuana where it is legal (under state law) and then travel to Pennsylvania. Weeks later, you could be pulled over and charged with DUI despite the fact that you are no longer under the influence and broke no state law in ingesting it.

Is this fair? Of course not, but it is the current Law in Pennsylvania!

Generally, it is understood that for a criminal law to pass Constitutional muster the requirements must “rationally relate” to what it is trying to protect against. PA DUI Laws are to protect society from people who might be dangerous while driving under the influence. Charging someone who is no longer under the influence (and may not have even broken state law to ingest it) does not seem to “rationally relate” to the DUI Law’s purpose.

However, all drivers should be aware that this is the current state of Pittsburgh, PA DUI Law regarding Marijuana. If you have been stopped after ingesting Marijuana with the last month or so you should immediately contact a DUI Lawyer to seek a consultation. There may be legal defenses that do apply to your case which could mitigate the danger that you face. Pittsburgh DUI Lawyer George Heym offers a Free Consultation on all DUI cases.

What you need to know after being charged with a Pittsburgh DUI

DUI Laws in Pittsburgh: What You Need to Know

If you’ve been arrested for a Pittsburgh DUI Pittsburgh DUI Lawyer George Heymyou could be facing fines, license suspension, and a mandatory jail sentence. Receiving a DUI is a serious legal concern and should be handled cautiously. If you have been charged with a DUI in PA, you will need to know certain things before taking action.

Your BAC (Blood Alcohol Content) and your number of prior DUI’s are used to calculate your Mandatory Minimum Jail Sentence.

If your BAC is tested when you are stopped for a Pittsburgh DUI the percentage of alcohol found in your blood stream places you in one of three BAC tiers set by Pennsylvania DUI Law. Tier I is the lowest level, ranging from 0.08% to 0.099% BAC. Tier II ranges from 0.10% to 0.159% and Tier III is 0.16% and higher. Tier III also includes those driving with controlled substances, a combination of alcohol and controlled substances and those who refuse a blood or breath test.

Persons who refuse testing are prosecuted under The General Impairment section of the DUI Statute which states that being under the influence of alcohol to the extent you cannot safely drive qualifies as DUI. This is a subjective standard based upon the testimony of the police officer and does not require a BAC reading. There is also an additional civil penalty of 12 months driver’s license suspension for refusing a breath or blood test which is in addition to any suspension imposed as a result of the DUI charge.

If you are convicted of a DUI in PA, penalties, fines, and punishments range depending on the number of DUIs you have in the previous 10 years combined with which BAC tier you fall into, mandatory minimum sentences on a first DUI offense include:

Tier I  BAC .08 – .099 %

  • 6 months of probation
  • Up to a 1 year driver’s license suspension
  • Possible Ignition interlock system for 1 year

Tier II  BAC .10 – .159 %

  • Driver’s license suspension from 1 year to 18 months
  • Mandatory minimum 48 hour jail sentence
  • $500 – $10,00 fines
  • Ignition interlock system

Tier III  BAC .16 % and higher

  • Driver’s license suspension from 1 year – 18 months
  • Mandatory Minimum 72 hour jail sentence
  • $1,000 – $10,000 fine
  • Ignition interlock system

Being charged with a DUI does not mean that you are guilty. There are very often defenses that only an experienced DUI Defense Attorney will know to raise in your particular case. Further, it is very often possible to avoid jail, shorten license suspensions and even avoid a criminal record.

Underage drinking and DUIs

Pennsylvania has strict laws against underage drinking and driving. As a part of the “Zero Tolerance” policy, PA underage drinking laws are some of the harshest in the United States. A minor only has to have a BAC of .02 % to fall under the DUI Statute.

If you or a loved one has been charged with a DUI in PA, you need to take immediate action. Contact George Heym, Pittsburgh DUI Lawyer for a free consultation.