Pittsburgh Criminal Law Blog

Operation Safe Holiday 2011

Gerald B. McNamara — Mon, 21 Nov 2011 08:45:45 -0500

PennDOT and police are partnering again this holiday season for Operation Safe Holiday, which includes a "Click it or Ticket" enforcement push from November 18-December 4 and increased use of sobriety checkpoints between now and January 4. This enforcement initiative also includes safety patrols to crack down on speeding and aggressive driving.

Despite what we are led to believe, drinking and driving was not the leading contributing factor to traffic fatalities in Allegheny County in 2009 (the latest year for which statistics are available). Of the 58 traffic fatalities in Allegheny County in 2009, an occupant not wearing a seatbelt was a contributing factor in 28 cases, or nearly half. That is an amazing number to me and just goes to show how you can take a simple step such as wearing your seatbelt to reduce your chance of injury or death when in a motor vehicle. Drinking and driving was a contributing factor in 13 of 58 traffic fatalities in Allegheny County in 2009.

Statewide traffic fatalities in 2009 show that failing to use a seatbelt was a contributing factor in 36 percent of the fatalities. I do not know why there is such a difference in the percentage of unrestrained fatalities between Allegheny County and the rest of the state, but in this day and age, it makes absolutely no sense why anyone would ever get into a motor vehicle and not wear a seatbelt.

So, if you are going to be drinking during this upcoming holiday weekend or during the holiday season, please do not drink and drive. Remember, it's always a cheaper and more pleasant overall experience to call a friend, relative or a cab than it is to take a ride in the back of a police car. Also, please remember to wear your seatbelt, make sure your passengers wear their seatbelts and make sure your child seats are properly installed.

Pennsylvania Ignition Interlock Update

Gerald B. McNamara — Wed, 19 Oct 2011 10:15:58 -0500

On October 18, the Pennsylvania Senate Transportation Committee approved a new bill which would require ignition interlock devices to be installed in the vehicles of all first time offenders. The current Pennsylvania ignition interlock law does not require first time offenders to utilize ignition interlock devices. Interlock devices cost roughly $1,000, not to mention monthly monitoring and calibration fees, and they must be installed on all vehicles owned by the offender. So, if this bill passes and you own more than one vehicle, you will need to spend $1,000 to equip each vehicle with the interlock device and pay additional costs for monitoring and calibration fees, in addition to all the other onerous fines and costs involved with a first time DUI.

The impetus behind this bill is a belief that many people whose licenses are suspended due to a DUI continue to drive, even during the period of ther suspension. The new bill seeks to alleviate that problem and, in its current form, will make it easier for a person with a driver's license suspended for DUI to obtain an occupational limited license (which goes completely against the heavy-handed punishment approach that is usually taken against DUI offenders).

So, how effective is ignition interlock? Studies show that while ignition interlock seems to reduce subsequent DUIs, it is only effective for the duration that the device is on the offender's vehicle(s). Once the ignition interlock device is removed, the recidivism rate is essentially the same as DUI offenders who never used an interlock device. This means that, for all the hoopla, ignition interlock is only effective as a short-term solution and only delays repeat offenses, unless the next piece of legislation sentences drivers to a lifetime sentence of ignition interlock.

Are there any unforeseen problems with ignition interlock? Yes, a study by the California Department of Motor Vehicles found that installation of an ignition interlock device actually increases the odds of the motorist crashing. Why would using an interlock device increase crashes? The answer is simple, after blowing into the device to start the vehicle, the device will ask for a breath sample at random times after the engine has been started. If the breath sample is not provided in a certain amount of time, the device logs the event and starts up an alarm (lights flashing, horn honking) that continues until the ignition is shut off or until a clean breath sample is provided. It is not difficult to imagine a driver in this situation scrambling to get off the road to provide a breath sample and being distracted enough to cause a crash.

Incidentally, this California study also found that use of ignition interlock had no effect whatsoever on the percentage of first time offenders who commmitted a subsequent DUI offense. I guess that makes the point of this new legislation....pointless.

Pittsburgh DUI Frequently Asked Questions

Gerald B. McNamara — Thu, 22 Sep 2011 15:29:20 -0500

Here are a few questions that I have recently been asked by clients and potential clients:

1. Do police need to know your Blood Alcohol Contration (BAC) to charge you with DUI in Pennsylvania?

No, the police do not need to know your BAC to charge you with DUI. The most common scenario in which this arises is if a driver refuses to take a breath test or provide a blood sample. If someone refuses to provide a chemical sample, they are most likely going to be prosecuted for DUI. The police must then rely upon the personal observations they observed such as erratic driving, strong odor of alcohol, failed field sobriety tests, etc.

2. Do I have to do all of the field sobriety tests that the officer wants me to do?

No, in fact, you are not required to perform any field sobriety tests, including the preliminary breath test. All you do when you take a field sobriety test is give the officer ammunition to use against you when you are prosecuted for DUI...and make no mistake about it, by the time the officer has you out of your vehicle, 99 times out of 100 you are going to be arrested for DUI. Even if you thought you did well on the field sobriety tests. You have the right to refuse field sobriety tests. However, and this is important, please tell the officer politely that you do not want to do the field sobriety tests. There is no need to be argumentative or confrontational because, by doing so, you run the risk of escalating the situation and making it even worse.

3. Why is a preliminary (or portable) breath test result not admissible in court?

Preliminary breath test results are not admissible as evidence against you because these breath testing instruments are not usually calibrated or checked for accuracy as rigorously as the evidentiary breath testing instruments that are generally kept at the police station. The only thing that the officer may say about the PBT is that it tested positive for the presence of alcohol.

4. If I am charged with driving under suspension DUI-related, may I receive a sentence of probation?

No, driving under suspension DUI-related carries with it a minimum mandatory jail sentence of60 days in jail, plus a $500 dollar fine. However, if your BAC is .02 or higher, the penaltiesincrease. A first offense with a BAC of .02 or higher carries with it a minimum mandatory 90 days in jail, plus a $1,000 fine. A second offense with a BAC of .02 or higher carries with it a minimum mandatory jail sentence of 6 months, plus a fine of $2,500. A third offense with a BAC of .02 or higher carries with it a minimum mandatory jail sentence of 2 years, plus a $5,000 fine. "Minimum mandatory" means that the judge does not have the discretion to give you less jail time than called for by the statute. One size fits all sentencing is one of the "benefits" of the "tough on crime" stance that all politicians have been required to take over the last 30 or so years. These types of laws have lead to our society having overcrowded jails and prisons and have created an enormous burden on taxpayers to continue to build jails and prisons.

5. If I refuse a blood or breath test, can I keep my license?

No, when PennDOT issued you your driver's license, you agreed to what is known as the "Implied Consent Rule." What this means is that in exchange for PennDOT giving you adriver's license, you agreed to provide a breath or blood sample if a police officer ever arrested you for DUI. I have no recollection of knowing anything about this rule when I got my driver's license 26 years ago. Unless you can convince a Common Pleas Court judge that you did not knowingly refuse the test, you will lose your license for 1 year for a first offense and longer for subsequent offenses. If you do not believe that you knowingly refused to provide a breath or blood sample, you have the right to appeal your driver's license suspension. When you recevie your suspension notice from PennDOT, you have 30 days to appeal it. Appealing it means that you get to keep your license until you have your appeal hearing and the judge issues a final decision. In Allegheny County, it take a few months from the time that you file the appeal until your hearing date.

6. How do the police know that I need to have an ignition interlock system on my vehicle?

When you are required to use an ignition interlock system, you must apply for a restricteddriver's license. This license clearly states that you are required to use an ignition interlock system when you are driving. So, if an officer stops you, he/she will be able to see on your driver's license that you need to be driving with an ignition interlock system. If you do not have your driver's license on you, when the police run your name in the computer to see if you have a driver's license, they will be informed that you have a restricted, ignition interlock driver's license. If you are caught driving without an interlock ignition system, a first offense carries with it a sentence of up to 90 days in jail (this is a not a minimum mandatory sentence), a fine between $300 and $1,000 and an additional 1-year suspension of your driver's license. These penalties only increase if you have a BAC of .025 or higher when you are stopped.

7. Why am I being treated as a minor even though I am over the age of 18?

In Pennsylvania, for purposes of a DUI or underage drinking, a minor is a person under the age of 21. If you are 21 or older, the law states that you are driving under the influence of alcohol if your BAC is .08 or higher. For a minor, the level is .02 or higher.

Pittsburgh Police Plan Weekend DUI Patrols

Gerald B. McNamara — Fri, 29 Jul 2011 12:59:35 -0500

Pittsburgh Police have anounced plans to conduct sobriety checkpoints and roving DUI patrols over this weekend, July 29-31. The patrols will be concentrated in the West End and South Hills areas of the city.

As always, the best ways to avoid a sobriety checkpoint or a roving DUI patrol are: (1) Do not drink and drive; (2) Use a designated driver if you plan on drinking; (3) Call a cab, friend or relative to come pick you up. These are all much better options than being arrested for DUI and facing fines, mandatory license suspensions, mandatory jail time, increased insurance rates, etc.

If you need to go back to the South Side, the Strip District, Oakland, or wherever, to get your car the following morning, it is better to do that without the DUI arrest hanging over your head. You're probably going to have a hangover no matter what, but your hangover is going to be a lot worse if you also got arrested for DUI the night before.

Boating Under the Influence in Pennsylvania

Gerald B. McNamara — Tue, 28 Jun 2011 01:03:26 -0500

With the long Independence Day weekend coming up, boating season in the Pittsburgh and Western Pennsylvania area is in full swing. This also means that Pennsylvania Fish and Boat Commission officers are patrolling local waterways looking for drunken boaters (BUI) and for violations of Pennsylvania's boating regulations.

There are many events planned in Pittsburgh during the holiday weekend, including the annual regatta, a concert Saturday night at Heinz Field and the annual fireworks show Monday evening. The area around Point State Park will be jammed with boats. Rest assured that the Pennsylvania Fish and Boat Commission will be out in full force as well. Please do not let them spoil your fun. If you are going to have your boat on the water this weekend and you plan on drinking, please do not operate your boat.

If you are arrested for BUI, you face mandatory jail time, fines and suspension of your boating license. There is also a push on in Harrisburg to make a BUI the equivalent of a DUI; meaning that if you are arrested for BUI you will face a mandatory suspension of your driver's license, as well as mandatory jail time, fines, etc.

One final thing to consider if you are thinking of drinking and boating this weekend in Pittsburgh, or any other time, is that when the the Fish and Boat officers arrest you for BUI, they usually take you as you are...meaning that if you are a male and you are shirtless, shoeless and wearing nothing but shorts and a life jacket, this is how you will be taken for the chemical testing. I saw this many times when I worked at the Traffic Division and Fish and Boat officers brought in their arrests for the breath test. Just an extra ounce of humiliation for you, as if getting a BUI is not enough. Not to mention the fact that you really do not want to go to the Allegheny County Jail wearing just your shorts and your life jacket.

How Police Enforce DUI Laws: Part 1 - When the Vehicle is in Motion

Gerald B. McNamara — Mon, 23 May 2011 11:18:04 -0500

According to a pamphlet produced by the National Highway Traffic Safety Administration (NHTSA), there are 24 driving cues that may predict that a driver's BAC is .08 percent or greater. These cues are divided into four categories:

Problems in Maintaining Proper Lane Position:

Weaving
Weaving Across Lane Lines
Straddling a Lane Line
Drifting
Swerving
Almost Striking a Vehicle or Other Object
Turning With a Wide Radius, or Drifting During a Curve

Speed and Braking Problems:

Stopping Problems (Too Far, Too Short, Too Jerky)
Accelerating for no Reason
Varying Speed
Slow Speed.

Vigilance Problems:

Driving Without Headlights at Night
Failure to Signal a Turn or Lane Change, or Signaling Inconsistently With Actions
Driving in Opposing Lanes or the Wrong Way on a One-Way Street
Slow Response to Traffic Signals
Slow or Failure to Repsond to Officer's Signals
Stopping in the Lane for No Apparent Reason.

Judgment Problems:

Following Too Closely
Improper or Unsafe Lane Change
Illegal or Improper Turn (too fast, jerky, sharp, etc.)
Driving on Other than the Designated Roadway
Stopping Inappropriately in Response to an Officer
Inappropriate or Unusual Behavior
Appearing to Be Impaired.

If you were stopped by the police and arrested for DUI, chances are one of these cues are going to be the reason that the police stopped you. However, what I find interesting about the 24 cues are that there are some other other classic moving violations that are not included, such as failing to stop for a red light or stop sign, speeding and u-turns, and no mention whatsoever of equipment violations such as having a burned out headlight or taillight. Supposedly, these were not included because they do not correlate to the driver’s BAC being over the .08 limit. However, I sure have many clients who were stopped for failing to stop for a red light, speeding or having an equipment violation and were eventually arrested for DUI. It makes me wonder about the validity of these 24 cues, much like the studies that I mentioned in my earlier post on standardized field sobriety tests that call into question their validity.

Preliminary Breath Test - PBT

Gerald B. McNamara — Mon, 09 May 2011 23:59:15 -0500

I get asked many questions about the preliminary breath test, or PBT, so I want to try and answer some of the more common ones here.

1. What is a preliminary breath test? A preliminary breath test, or PBT, is just another field sobriety test. The officer asks the driver to blow into a small, handheld breath testing device. The BAC reading cannot be used as evidence against the driver. However, the officer is allowed to write in the report and testify that the test was positive for the presence of alcohol.

2. If I am pulled over, do I have to take a PBT? No, there is no requirement in Pennsylvania that you take a PBT. It is the same as refusing any other field sobriety test.

3. Will I lose my driver's license if I refuse to take a PBT? No, since you are not obligated to take the PBT, you will not lose your driver's license if you refuse to take it.

4. Are the results of a PBT test admissible in court? No, the results of a PBT test are not admissible in Pennsylvania courts because these devices are not subject to the strict administrative requirements that an evidential breath testing instrument must meet.

5. If the results are not admissible in court as anything more than "testing positive for the presence of alcohol," why do the police use them? The police use a PBT result in the same manner as they use the result of any other field sobriety test, which is to build probable cause to take you to the police station to take the evidentiary breath test or to the hospital to provide a blood sample.

Remember, do not confuse the PBT with the evidential breathalyzer instrument. A PBT is a small, handheld device that the officer will ask you to blow into while you are pulled over on the side of the road. If you are at the police station and the police are asking you to blow into a large device that an officer cannot hold in his or her hand, this is the evidential breath instrument and if you refuse to provide breath samples for the evidential test, you will lose your driver's license for at least one year.

Some departments may also use their evidential breath testing instrument at a field sobriety checkpoint, but this is very rare.

Public Shaming for DUI

Gerald B. McNamara — Mon, 28 Feb 2011 14:22:25 -0500

"Driving drunk may lead to Facebook shaming" reads the headline. A city council person in Huntington Beach, CA has sponsored legislation to post the mug shot of anyone arrested for DUI more than once in Huntington Beach. The council person was quoted as saying, "If it takes shaming people to save lives, I am willing to do it."

In Washington, there is a push to pass a law that publicly identifies DUI offenders by requring them to purchase and display on their vehicles license plates that end in an upper case Z. These are known as whiskey plates, and originated in Minnesota, whose legislature passed a law requiring DUI offenders to purchase and display on their vehicle(s) a license plate that begins with an uppercase W (thus the name). Minnesota's whiskey plates are easily distinguished from their standard license plates.

The problem with these so-called collateral consequences for a DUI offender is that they do not punish just the offender, but they potentially punish the offender's family as well. To those who support these types of collateral consequences, imagine that you are arrested for DUI, your license is suspended and you have to get rides or take public transportation for the duration of your suspension. However, life goes on for your family and you now have to put a whiskey plate on every vehicle that you own. So, if your child takes your car to school, it looks like he or she has the DUI under their belt. If you and your spouse own two cars then your spouse gets a whiskey plate and wears your scarlet letter.

I think that the penalties for DUI are getting to a point that some of them no longer have a rational relationship to the offense. Penalties for DUI offenses in Pennsylvania and most other states have increased dramatically in recent years. I don't understand how something like a whiskey plate acts as any further deterrent than things such as potential mandatory jail time, large fines, license suspensions, etc. If these things do not cause someone to stop and think before they drink and drive, I doubt that a special license plate will help much. In my opinion, if a penalty does not help deter a crime, it is worthless.

There is no current push that I know of in Pennsylvania for a whiskey plate, but there is plenty of public shaming that goes on here, from the police blotters in neighborhood newspapers to the unified court system's public docket sheets.

For the holier than thou crowd out there who like ideas like public shaming, I will share something that I learned a long time ago; unlike most other crimes, anyone can be arrested for a DUI....and that means you too.

Thanksgiving: Pennsylvania's Deadliest Holiday

Gerald B. McNamara — Wed, 24 Nov 2010 19:02:45 -0500

According to PennDOT, Thanksgiving is the deadliest holiday for vehicle crashes. Statistics show that over the 2009 Thanksgiving weekend, there were 4,500 crashes and 41 fatalities. As a result, this year PennDOT is partnering with state and local police between Thanksgiving through the New Year's holiday for "Operation Safe Holiday."

Operation Safe Holiday is an increased enforcement effort by police using a combination of sobriety checkpoints, roving DUI patrols and increased safety patrols to identify and stop drivers showing dangerous behavior such as speeding, aggressive driving or impaired driving.

In addition, police departments across Pennsylvania and the nation are participating in another Click It or Ticket campaign between November 19 and December 3.

Please buckle up, drive safely, obey the speed limits and if you have been drinking, please call a cab or a friend.

Welcome to the Pittsburgh DUI Hotel

Gerald B. McNamara — Fri, 01 Oct 2010 19:24:06 -0500

Due to the draconian mandatory sentences involved with a DUI arrest in Pennsylvania, Allegheny County's electronic monitoring program is overwhelmed and cannot keep pace with all the people who have been sentenced to some form of electronic monitoring (house arrest). This includes around 1,200 first-time DUI offenders who have been sentenced to house arrest.

A first-time DUI offender sentenced to house arrest is a person who was not eligible for the ARD program and must serve a mandatory jail sentence. Many times, this jail term can be served as house arrest instead. However, so many people in Allegheny County are wearing these ankle bracelets, the system cannot keep up. In fact, it is not unusual to get sentenced for a first or second time DUI and have to wait several months to serve the house arrest sentence because an ankle bracelet and the monitoring equipment are not available at the time of sentencing.

Cue in the Hotel DUI. This is a 4 day program in which a first-time offender does not have to serve a jail or house arrest sentence. Instead, Allegheny County plans on renting space in local hotels and first-time offenders will check in for a 4-day stay and receive their alcohol evaluation, complete mandatory classes and start whatever treatment has been ordered for them.

This is a novel concept and it will be interesting to see if it works. Of course, all this could be avoided if the words "minimum mandatory" could be removed from DUI offenses and judges could have discretion again in sentencing, but that is a topic for another day.