If you are driving in Pennsylvania, this may be the most important blog post you’ll ever read. Over the holidays, Pennsylvania State and local police are busy planning out more DUI roadblocks and DUI focused patrols. So what do you do if you get stopped?
OK. Here’s the truth that no one will tell you but me. If you are stopped by the police at night and if they even think that you are drunk or think that they smell alcohol, you are going to be arrested no matter what you say or what you do or what the evidence is. Most police officers adopt a “better safe than sorry” approach because if they are wrong and they turn out to not arrest someone who later turns out to be drunk and that person hurts property or people or kills someone, then they will be fired and the municipality or state will be sued. So, the bad news is, if you hear the words “Have you been drinking?” or “How much have you had to drink?” or “Please step out in the car,” you are going to be arrested. There is nothing you can do about it other than try to protect yourself from a conviction.
That is why I have put together a short and handy guide of what you should do if you are pulled over by the police for DUI in PA.
Shut Up!
No one can talk their way out of a DUI so don’t try it. You can only hurt yourself by talking. Don’t admit to drinking any amount of alcohol or say anything, and most especially don’t lie (don’t say “I had a few” or “I had 2”). Just politely say, “Officer, I choose to remain silent”. Provide the necessary documents and remain silent. Talking will only give the officer more evidence against you. Staying silent is the best thing you can do for yourself and it is your right.
Refuse the Roadside DUI tests
There are two types of tests the officer may ask you to perform at roadside. First are the awkward high-pressure and purposeless game of Simon Says called the Standardized Field Sobriety Tests (SFSTs). With the SFSTs you will be told to:
- follow the officer’s finger (Horizontal Gauze Nystagmus test-which is inadmissible in Pennsylvania, yet police all across the state continue to conduct it for some unknown reason),
- walk a straight line (Walk and Turn test) and
- stand on one leg counting out loud (One Leg Stand).
These tests are not scientifically valid and are designed for failure. Furthermore, police officers incorrectly administer these DUI tests leading to many false arrests. Once again this can only be used as evidence against you and will not help you. These test are totally optional and your best bet is to politely refuse. You will not be penalized for not doing them. In fact, by not playing the high-pressure meaningless game of Simon says at roadside, you will provide the officer with less data to justify his reason to arrest you. Less data and information means that their justification in arresting you is weaker and in fact they may have no justified reason at all. It may result in there being insufficient evidence to justify your arrest and therefore suppressing all of the after-acquired evidence causing your case to be dismissed.
The other test the police may ask you to perform is the portable breath test (PBT). You may think to yourself that these tests are accurate and valid. You may even think that because in truth you only had one drink that you could not possibly be over the limit. You would be wrong. These hand-held PBT’s are not precise and create false positives.
Once again this is voluntary. You are not required to do a PBT test. If you do not perform a PBT upon request at roadside you cannot be charged with a refusal for it and the jury will not hear about your refusal either. In fact, you should not do it. As these things are not specific to alcohol and are not accurate, you are voluntarily providing the police with more evidence against you. To do so, does not make sense even if you are 100% innocent. These tests are optional and you should politely refuse.
Request an Independent Blood Test
If the police take you to the station for a full evidentiary breath test or the booking center or hospital for a blood test, you have the right to to request an independent blood test. They won’t tell you that you have a right to an independent test, but you do. You simply tell them that you want them to follow the law. In Section 1547 of the Vehicle Code, we find the following language:
(h) Test by personal physician.–The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test.
Therefore any unreasonable delay in your release could frustrate your ability to get this second test and cause the original police-generated test to be suppressed. Oh yeah don’t worry if you are over the limit as the police will likely delay and not give you the opportunity to perform a second test any way.
Also, remember that the DUI crime labs that the police use are often overworked and underpaid and at times do not follow proper standards. Very few attorneys check their work. We always do. We frequently find errors that lead to a challenge of the validity of the result. The risk of a false positive from a lab error is high. (Read more about problems at forensic crime labs.)
Write things down
Another important piece of advice is to write things down. Try to establish a drinking history by going back and getting witnesses names and addresses so we can later go back and investigate it to make a true pharmacological history. People forget things and writing things down will help preserve the details. Remember, details provide for truth. The truth win cases.
The important things to take note of is who can confirm how little you had to drink and over what period of time as well as your stomach contents (what you had to eat). With this and other information we can construct what your BAC should have been at the time of driving or the time of the test to refute the state’s evidence. In addition, we want to talk with everyone who saw you so we can present witnesses that refutes the officer’s claim that you appeared drunk and instead that you were in charge of your faculties, that you made sense and that you weren’t stumbling when they saw you. Finally, we want to interview any passengers in your car or those who did not stop you from driving, so that we can gain their estimation from those who know you better than the officer who is a stranger to you as to whether or not you were capable of safe driving and how they thought that you were fine to drive and that they care about you and others and would not let you drive if they thought you were even possibly drunk.
Call a Qualified PA DUI Attorney Immediately
The best way to help yourself is to call a Qualified PA DUI Attorney Immediately. We have a 24 hour DUI helpline at 1-866-MCSHANE. As mentioned before, details win cases. The earlier you get us involved, the better we can prepare your case.
There are also time sensitive steps that need to be completed early on. For example, if your license is suspended due to a DUI refusal, you must appeal within 30 days or else your license suspension will stand. You will also want to consult a qualified attorney for your preliminary hearing. The preliminary hearing is an important legal step for your DUI defense and you should have an attorney present to represent your case.
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.