DUI – General Impairment and Defenses
Pennsylvania’s DUI statute criminalizes driving while under the influence of drugs and alcohol. DUI – General Impairment, charged as 3802(a)(1) is essentially a “catchall” provision whereby the individual’s blood alcohol content (BAC) is 0.08-0.10 or the officer doesn’t know the content of alcohol in a suspect’s blood. By the statute a general impairment crime is an allegation that the subject (1) operated or was in actual physical control of a motor vehicle; (2) while the subject was intoxicated to a degree such that he/she was incapable of safely operating a motor vehicle.
Contrary to many beliefs, a police officer does not actually need a blood test result to charge you with DUI. The officer can look at many factors to determine if a suspect is or was driving under the influence – smell of breath, glassy/red eyes, movements, speech, open containers, spilled drinks, etc. The Court may look at the officer’s knowledge and experience in determining whether there was a DUI offense, and Courts usually give a great deal of deference to an officer’s testimony regarding suspected alcohol use because officers are very familiar with what an intoxicated person looks like.
The police officer has a litany of tools to help them with a DUI arrest and prosecution. The first being the authority to pull someone over for a traffic infraction, and the ability to unilaterally pull someone out of a vehicle following any lawful traffic stop. Traffic infractions can be as minor as speeding 1 mph over the speed limit, failing to stay in lane (even for a brief amount of time), driving too fast for the conditions, or event swerving within the lane. So, if an officer follows a vehicle long enough he/she is almost guaranteed to observe some traffic infraction.
Following a pull over, the officer can ask basic questions without infringing on Miranda rights, such as the name of the individual, where they are coming from, where they are going, etc. Often at this point people admit right away they were drinking which puts the officer in a different state of ability to ask questions and investigate. From there, the officer can request the individual to perform standard field sobriety tests (SFSTs), which consists of the walk and turn, horizontal nystagmus, and the one leg stand. However, the horizontal nystagmus test is not admissible in a Pennsylvania trial. The officer can use a PBT or Portable Breath Test, though it too is inadmissible in Court.
The officer can also request ARIDEs or Advanced Roadside Impairment Detection Evaluations, which typically consists of looking up for 30 seconds, the silent count with eyes closed, etc. There are more tests out there but they are infrequently used by the Pennsylania State Police.
As an example, if an offer pulls someone over and they see and confiscate an open container of alcohol in the vehicle, the officer may reasonably suspect that a DUI has occurred. They will then ask the individual out to perform tests. If the person refuses, the officer can request a blood draw. If the person refuses again, the officer, if he/she believes that a DUI has occurred, may charge someone with DUI – General Impairment, without knowing what particular BAC was in the person’s blood.
DUI charges are usually difficult to beat, particularly outside of Philadelphia where judges and police officers are more sensitive to DUI crimes and allegations. However, there are some very important defenses to a DUI general impairment charge your attorney should be aware of. The first is contesting actual physical control of a motor vehicle. Generally, the Commonwealth must prove that the defendant was actually driving a vehicle (operating) as opposed to merely in the vehicle. For example, if someone was drinking at a bar and enters a vehicle to “sleep off” the alcohol, they may be able to avoid a DUI conviction by arguing that they didn’t have actual physical control of a motor vehicle. This is a classic, and often successful, defense in many different scenarios.
A second defense is that the defendant was not impaired to such a degree that he/she couldn’t operate a motor vehicle. Somewhat ironically, dash cam video can assist a defendant in these scenarios, particularly if it shows adequate driving but for a small traffic offense. This defense also relies crucially on the defendant’s performance on the SFSTs and other tests. If the police rely solely on minimal evidence, they may not be successful in obtaining a conviction.
Another defense that is rarely used is that the alleged DUI did not occur on a “trafficway or roadway” such that a DUI offense is inapplicable. Technically, Pennsylvania’s DUI statute is under the traffic code, which only criminalizes behaviors on traffic ways or roadways. Therefore, a person cannot be convicted of a DUI if they are driving on a field or, in very rare cases, a private roadway that is not connected to a public roadway.
Finally, there is the option to try and suppress the charges – usually by challenging the traffic stop itself. A key reason why most traffic offenses are recorded by dash cam (or State Trooper MVR) is to give the Commonwealth evidence to support a lawful stop so as to avoid suppression of the evidence. In a motion to suppress, the defense attorney challenges the constitutionality of the stop. If the officer did not have probable cause to pull someone over for a traffic offense, a person may also be able to avoid a DUI conviction as evidence subsequent to that illegal stop is “fruit of the poisonous tree.”
