Driving Under the Influence

Up until December of 2018, the only time you could be charged with a felony related to a DUI offense is if someone was seriously injured or killed. If someone was seriously injured the charge would be Aggravated Assault by Vehicle While DUI. If someone was killed the charge would be Homicide by Vehicle While DUI. The actual DUI charge itself was still graded as a misdemeanor even if someone was hurt or killed.

On December 24, 2018, that all changed. On that day the new DUI grading and sentencing law came into effect in Pennsylvania. Certain DUI offenses are now graded as felonies. A felony DUI now has a mandatory minimum of one year with a maximum of seven years. The way the law is written now the jail time has to be served in state prison.

A person’s third offense in ten years with a BAC of .16 % or higher or if the DUI is drug-related is now graded as a felony. All fourth DUI offenses in ten years are now felonies. The only exception to the one-year mandatory minimum in state prison is if it is a fourth offense and a person has a BAC below .10 % or is charged with a general impairment DUI. A person can be charged under the general impairment section in Pennsylvania if that person has imbibed a sufficient amount of alcohol to make them incapable of safe driving.

As I said above drug-based third or fourth offense DUI charges in ten years mean a person is facing a minimum of one up to seven years in state prison. Drugs include prescription drugs that are legally taken as prescribed, as well as prescription drugs that are prescribed. It also includes prescribed medical marijuana.

People who call us for representation in these matters often ask how we defend against these DUI charges. The answer is more than just aggressively and hard like most lawyers say. Aggressive and hard are not enough. We defend these charges using decades of experience and most importantly science. My team is trained in field sobriety testing, analytical chemistry, pharmacology, and many more areas relevant to defending DUI cases. We are constantly learning to know as much, if not more than, the police, lab technicians, and toxicologists the government always calls as witnesses in these cases. This firm also keeps up on new developments with the law.

Here is one example of how knowing analytical chemistry and what to look for saved a client from state prison in an alcohol-based DUI. The person was charged with her third offense in 10 years. The lab said her BAC was .17 % with an uncertainty of +/- .01. with 99.87% uncertainty. That means the lab was 99.87% certain that her blood is anywhere from .16 %to .18 %. In Pennsylvania .16 %or greater is the highest tier and for a third offense in ten that is a mandatory minimum of 1 year in state prison. The DA was unwilling in this case to lower the offense to a middle-tier first-degree misdemeanor offense with a mandatory minimum of 90 days that can be spent in county jail.

What we did was subpoena all of the data on the test from the lab. About 250 pages worth of data. The data was revealing. Turns out there were three test results and .17 % was none of them. They had three different test results and the lowest was .167 %. The lab averaged them to .17 % and reported it to the police. The lab never told the police officer that the lowest test result was .167 %. That is significant. That means with an uncertainty of +/- .01 and a confidence interval of 99.87% the range of possible test results was now .157 % to .177 %. The lowest possible result,  .157 %, is less than .16 %. The confidence interval of 99.87% means that every test result is equally as likely to be the true test result. Thus, .157 %is equally as likely to be the true test result as .177 %. As a result, the prosecution would not be able to prove beyond a reasonable doubt that our client’s blood was greater than .16 % thus making it a felony DUI. Once we showed this data to the DA the case was settled favorably for a county sentence.

A good example of keeping up with the law recently helped another of our clients who was facing a felony DUI based on Medical Marijuana. In Pennsylvania, it is still illegal to drive with any amount of THC in a person’s blood, even if the THC comes from lawfully prescribed medical marijuana because THC is a Schedule I drug. However, a case was recently decided that takes Medical Marijuana out of schedule I if the medical marijuana patient is complying with the medical marijuana laws. We presented this new case to the prosecutor and it resulted in a very favorable result for our client. Our client will not be a felon or go to state prison because of the case law we presented to the prosecutor.

On December 24, 2018 the grading of some DUI offenses in Pennsylvania became felonies. Yes – felonies! Prior to that day, the highest grading a DUI in Pennsylvania could get was a first-degree misdemeanor. The maximum punishment was no more than 5 years and a $5,000.00 fine. Now with felony DUI, they are graded as a third-degree felony with a maximum punishment of up to 7 years and a $15,000.00 fine. What is worse is in all but one instance the mandatory minimum is one year and that has to be served in state prison. Our legislators did not see fit to allow a person to be able to serve a one year minimum when it is a felony in county jail like they did when the grading was a first-degree misdemeanor.

It used to be that the only time that a felony was charged in relation to a DUI is if a person died or received serious bodily injury. Those charges are Homicide by Vehicle While DUI and Aggravated Assault While DUI. However, the underlying DUI was always a misdemeanor. Now the DUI can be a felony all by itself.

To be charged with a felony DUI in Pennsylvania a prosecutor must show one of these scenarios: That the DUI is a third offense in the past 10 years and the driver’s BAC is equal to or greater than .16. That the driver was impaired by drugs, or that the driver had certain drugs or metabolites of drugs in their blood whether impaired or not. Another way a person can be charged with a felony DUI is if it is their fourth offense in 10 years regardless of the BAC or if drugs are involved.

The only time a felony DUI does not have a mandatory minimum is if a person has a BAC less than .1 or is found guilty of incapable of safe driving. Incapable of safe driving is equivalent to the old-fashioned drunk driving charge. The government needs to prove a person drank a sufficient amount of alcohol that they are incapable of safe driving. If the BAC is less than .1 or incapable of safe driving the mandatory minimum is 10 days, but the maximum is still seven years.

I must stress that either 10 days or 1 year are just mandatory minimums. Judges do not have to give minimums. The prior DUI offenses a person has been convicted boost their prior record score points which raises the possible sentence past the mandatory minimum. Having lots of points is not a good thing.

Now the only good thing I can say, well good in a bad situation, about felony DUI charges is you defend them the same as you would any other DUI. You get all the police reports, check out the scene of the pullover and the road leading up to the pullover. You get the video and body camera recording if they exist.

Police car videos, body camera videos, and the audio recordings are pure gold in terms of defending DUI. Just two weeks ago from the date of this blog this firm defended a felony DUI based on marijuana intoxication that led to an offer of two traffic tickets. It was a medical marijuana DUI.

The State Trooper pulled our client over for illegal equipment on his truck. That led to field sobriety tests. Our client did well on the field sobriety tests. In fact, it was the cop who stumbled while demonstrating the field tests. If a person just read the police officer’s report it sounded like our client was impaired and should not have been on the road. The police officer did not note in his report that he himself stumbled. Surprise surprise.

In another recent case this firm received a reduction of a felony DUI down to a misdemeanor DUI. The sentence went from 1-year minimum offer in state prison to 120 days minimum in county jail with work release. The BAC alleged was .170 with an uncertainty of +/- .010 and a confidence interval of greater than 99 percent. That means every possible result from .16 to .18 was equally as likely. Since the law for the highest tier DUI in Pennsylvania is .160 or greater on the face of it the uncertainty (margin of error) did not help our client. However, we were not satisfied, and never are, with a one-page piece of paper with a number on it that makes our client look guilty. Since the test was done using gas chromatography at a private lab, we ordered all the testing data from that lab. All 200 plus pages. Well the data was revealing. There were several issues with the test but the most obvious one was the reported test result was inflated and did not exist. There were three test result. One was .167 and two (done at the same time on a duel column injection) of .172 and .173. So, this lab reported the average as .170. That test result was made up. They did not report the lowest test result of .167.

Not reporting the lowest test result of .167 was significant. Applying the uncertainty of .167 takes the lowest test result to .157 and with the confidence interval of greater than 99 percent that means .157, .158, .159 were just as likely the true result as was .177. Therefore, using proven science the government could not prove that the BAC was .16 or greater beyond a reasonable doubt. There were other issues that put doubt into the test result itself, but this issue was blatantly obvious, and an expert was not needed to expose this.

While felony DUI are very serious with significant consequences, merely being charged with them does not equal guilt, as the two case examples above show. Well as long as the case is defended properly using science and the knowledge of field sobriety testing as well as getting ALL of the evidence. Not just what the government gives you.

– Brian Manchester, Esq.