It seems that about once a year in the Harrisburg area someone gets arrested for a DUI while either riding a horse or while attempting to drive a horse and buggy.
We had our latest one and it hit the national media. The national media was all over it, of course…
Pa. police arrest Amish man in buggy for DUI
(AP)
LANCASTER, Pa. — Police in central Pennsylvania arrested an Amish man on drunk driving charges over the weekend after he was found asleep in his moving buggy. Police said a 22-year-old man was slumped over and asleep in a slow-moving buggy on Sunday night.
An off-duty officer from nearby reported seeing the horse pulling the buggy at a walking pace as it straddled the center line.
Police said a breathalyzer test snowed the man’s blood-alcohol content was 0.18, more than twice the 0.08 legal limit for drivers.
As funny and as quaint as this story may seem, it involves a real life human being who probably does not have access to the internet to learn that this type of arrest is in fact probably illegal and improper under prevailing Pennsylvania case law.
The law is settled and has been so since 2004 by the Pennsylvania Supreme Court in Commonwealth v. Noel that arresting a horse bound rider pursuant to 75 PS 3103 and subjecting him or her to the provisions of the Vehicle Code and specifically DUI is impermissible as the authorizing statute (law) (75 PS 3103) was found to be unconstitutionally vague.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
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Justin McShane
PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.
Mark Boston says:
Dear PA DUI Attorney,
After reading a number of post on this blog, it is pretty clear that many police officers in Pennsylvania are arresting innocent citizens for crimes they did not commit. I can only imagine the amount of stress and horror that this innocent people have to go through to clear their name of that DUI charge. My question is under Pennsylvania Law, is there any provision that punishes police officers who make clear transgressions like in this case the horse drawn buggy DUI?
Harrisburg DUI Lawyer says:
Mr. Boston,
That is a great question. it is outside of my typical area of expertise. However, I do know for a patently unlawful arrest or one that is in violation of one’s constitutional rights, the victim (the arrested person) can sue under a federal cause of action for a civil rights violation under what is called a 1983 claim.
____
-Justin J. McShane, Esquire-Harrisburg DUI lawyer
Mark Stevens says:
Justin your comments on this bizarre case are timely and on point, as always. The public’s initial reaction when the police make an arrrest for a “crime” that doesn’t really seem like a crime is sometimes a sarcastic laugh, like in this case, but then they’ll ask, “can they (the cops) do that?” And you answered the question!
Best regards,
Mark Stevens
ByeByeDWI.com
Justin McShane says:
In Pennsylvania there is a very famous case that stands for the proposition that it is not illegal to be on a horse and drunk. It cannot be prosecuted as a DUI.
Patrick says:
Actually, you guys may wish to double check this. It’s open to debate.
Section 3103 in the PaVC (pertaining to persons riding animals or driving animal-drawn vehicles) states that “Every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to a driver of a vehicle by this part, except those provisions of this part which by their very nature can have no application or where specifically provided otherwise.”
I am a Pennsylvania LEO. As such, here’s how I read that: Riding a horse? You are offered the same rights as a driver of a motorized vehicle. You’re also governed by the same laws–DUI included. The excluded provisions that, by their very nature, can have no application would apply to things like equipment violations. You obviously can’t be pulled over for a malfunctioning headlight on a horse.
If I’m misinterpreting this section, I’m more than willing to admit that I’m wrong. If you find a good attorney that gets a DUI charge dropped, that’s also good for you. But I’d hate for people to go out there under-informed, and get jammed up. Contrary to popular belief, police aren’t just out there to arrest everyone and make quotas… We actually care about people, and want them to make safe and educated decisions. 🙂
Justin McShane says:
Thank you very much for participating and doing so in a very respectful way. All humans are subject to error. We are all subject to error. I join in your idea that only complete information should come about so the public is not misinformed.
I am happy to provide a source of my opinion that a person on a horse cannot get convicted of a DUI.
You are correct in what the statute says, but there is legal life beyond a statute that is case law interpreting the statute. In Supreme Court of Pennsylvania case decided on September 22, 2004 found at 579 Pa. 546 and 857 A.2d 1283, we find Commonwealth of Pennsylvania v. Richard Carroll Noel, and Keith Douglas Travis.
Background: Arrestees filed petitions for writ of habeas corpus, contending that, as horse riders, they were not subject to state’s driving under the influence (DUI) statute. The Court of Common Pleas, Mercer County, Nos. 1020, 1023 CR 2002, Thomas R. Dobson, J., dismissed charges against them. State appealed, and the Superior Court relinquished jurisdiction and transferred appeal to the Supreme Court. Holding: The Supreme Court, Nos. 19, 20 WAP 2003, Nigro, J., held that Vehicle Code provision which treated horse riders like vehicle drivers except for those provisions “which by their very nature can have no application” was unconstitutionally vague.
I sent you the full case by way of email so you can read it.
Again thanks for participating.
Patrick says:
Mr. McShane:
I responded to you by e-mail, but I also wanted to respond in the forum to publicize what I said in the e-mail I sent you.
The case law you sent me is sound. That was extremely informative, and it seems as though I was incorrect. We don’t get them all right, and–as a police officer–I don’t claim to be above error. I’m extremely happy I found this out before being on opposing sides of a courtroom from you, as I would have hated to find out that I was was wrong in that venue.
It turns out that case law suggests you cannot be convicted of DUI in PA while riding a horse. I certainly still can’t condone it, as one could be seriously injured or killed by doing so (ask anyone who has been thrown from a horse). I agree that one could, perhaps, be cited for public intoxication… But that usually accompanies the fact that your intoxication couples some other illegal action (usually Disorderly Conduct) or an inconvenience to public, police or EMS.
I digress, however: Hats off to you and your knowledge of case law, Mr. McShane. I appreciate your response… And the education. To all others who might be reading: Please drink responsibly, no matter how you may be travelling (legally or not)–or even if you’re not travelling at all. I’ll reiterate: Not all police officers just want to hit you with a metaphorical hammer. We want you to be safe.
Thank you again, Mr. McShane.
Justin McShane says:
A sincere thank you for all that you do in keeping families safe. Your job is a very tough one. One that I do not think I could do well. That is why I do not do it. Life is a full time learning event. I learn stuff all the time. I thank you for engaging with us here. Again, thank you and your colleagues.