I have often lamented that DUI is one of the most politically charged crimes in the Commonwealth of Pennsylvania.  There are a number of lobbies like MADD and the PA DUI Association that exert inordinate amounts of pressure on politicians to enact stricter Pennsylvania DUI Laws.  In my opinion, as Pennsylvania’s first and only national Board certified DUI trial attorney as recognized by the Pennsylvania Supreme Court, legal penalties should be based on factual research and scientific observations rather than the political clout of special interest groups.

Recently, I have noticed a surge in DUI related articles in newspapers across the country which only present a single-sided view of DUI related issues.  Here is a recent article from The Patriot News:

Refusing DUI test is ‘a big gamble’ for drivers in Pennsylvania

Abdul Walters has to get up at 4:30 a.m. and catch two buses to make it to work on time.

He rides his bike to his second job. He asks for rides from friends. He has trouble getting his two daughters where they need to go.

Walters, 28, of Harrisburg, saw his driver’s license suspended for a year after he refused to take a blood alcohol test after a crash in January.

Read the Full Article

There are a great many factual and legal inaccuracies to this article.  it shows a remarkable lack of due diligence by an otherwise great reporter.  Among the several inaccuracies include:

1. A DUI attorney says that blood and breath tests are “unbeatable”.  They are not.  There is a widespread lack of data to support a well-founded assertion that the magic number is true and oftentimes there are demonstrable issues in the collection, storage, testing and reporting of BrAC or BAC results.  You just have to know what you are looking for.  If you don’t know what to look for, then you will never find it.
2. A DUI Refusal in and of itself is a civil offense not a criminal offense.  A driver who refuses a DUI chemical test will not face jail time for the refusal as a standalone offense.
3. The roadside tests or the Standardized Field Sobriety Tests (SFSTs) are totally subjective without a base line of comparison to properly conclude that one is impaired.  The tests are not even designed by the test makers to record impairment.  In many cases they are not instructed correctly, administered correctly or scored correctly.  If the defense attorney understands the scientific and procedural intricacies surrounding these tests, then they can be exposed for what they truly are which are awkward high-pressure meaningless and purposeless roadside games of Simon says.  I have blogged before about how according to a study conducted by Dr. Lance Platt, PhD (a renowned NHTSA/IACP SFST Instructor and expert) that showed 93% of the time the police improperly administered these tests. If test is administered incorrectly, often times the results are contestable.
4. The article fails to mention that there are a separate set of hearings called  PENNDOT Statutory License Appeals that stand as a safeguard to arbitrary loss of a driver’s license.  When covering a topic like this, shouldn’t the readers be informed of all of their legal options?  It is not an “automatic” as you can appeal to a court and have your day in court.
5. It is clearly within your constitutional rights to refuse government intrusion into your life.  Isn’t that what our founding fathers did?

I can’t help but believe that this article has been influenced by political lobbyists. “Why?” you ask.

There was a recent MADD and NHTSA communiqué calling on state level organizations to prompt such writings in newspapers to highlight the “refusal problem”.  Thus there have been a number of articles published in local newspapers nationwide that, similar to one quoted above, provide a biased view of the issue.  Here are two more articles to prove my point:

Missoula City Council takes up refusal ordinance again

Ruling in favor of no-refusal strategy helps police keep roads safer

Their goal is to sway public opinion in favor of their national legislative drive to make all refusals to submit to a chemical test, regardless of reason, a standalone crime which it currently is not in the Commonwealth of Pennsylvania.  Several other states have also refused to make a refusal a standalone crime.  If enacted as proposed, such a law would really mean that if you exercise your rights to refuse Government intrusion into your bodily integrity, then you who may not guilty of DUI could serve jail time for simply exercising your rights.  Patrick Henry of “Give me Liberty of Give Me Death” along with Thomas Payne and all of the Founding Fathers would justifiable wag their fingers at us for the shame of it all.

My gripe here is elemental and philosophical in that laws and penalties should be based on academic research and studies not emotions.  I do not like true DUI drivers any more than anyone else.  I would be happy to be out of a job, but neo-prohibitionist nonsense and emotional-based decisions that lead to irrationally based laws is not the feature of sapience. Punishment should be rational, not emotional.  I’ve represented a lot of people who are innocent of DUI and have seen people suffer through being penalized for a crime they did not commit or there is insufficient or inaccurate proof of guilt.  By increasing penalties you are increasing the suffering of a lot of innocent people as well.

At the end- one final question: Will increasing penalties deter people from driving drunk?  This should be answered by scientists not lobbyists.

-Justin J. McShane, Esquire, Pennsylvania DUI Attorney

I am the highest rated DUI Attorney in PA as Rated by Avvo.com

You can follow me on Twitter, Facebook or Linkedin

Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency

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.