- How can the police determine whether I am driving under the influence?
- What are the police looking for when they are searching for DUI drivers?
- What happens after the police pull me over?
- What are field sobriety tests (FSTs)?
- Do I have to take field sobriety tests (FSTs)?
- Why did I have to blow into a device on the street and still have to take a blood or breath test later?
- What are the different tests that the police can use to determine my blood alcohol concentration?
- What happens if I refuse to take a chemical (blood or breath) test?
- Am I entitled to an attorney prior to deciding whether to take a chemical test?
- The bottom line is I was driving, I got arrested, and the test showed that I had been drinking, what can be done for me?
- Can I represent myself?
- What are the potential defenses in a DUI case?
- What are some of the problems with breath testing?
- Are blood tests more accurate than breath tests?
- Can medical issues present a defense against DUI?
- What happens if I drive on a suspended license?
- What is an interlock device?

How can the police determine whether I am driving under the influence?

There are a variety of ways in which a police officer in Pennsylvania may determine that a driver is driving under the influence. "Reasonable suspicion" is the term most used to satisfy the court standard in this regard. This simply means that the officer must have a "reasonable suspicion," based on something abnormal that the officer observes, about the way a person is driving. This is a VERY LOW standard and it can be satisfied by virtually anything which appears out of the ordinary and that might be a sign of a driver being under the influence. In addition, if you’ve been involved in an accident, even though the police officer did not see you driving, you may still charged with DUI. Another way that police officers arrest drunk drivers is through the use of sobriety checkpoints, where they routinely stop every driver who passes through the checkpoint. Sobriety checkpoints do not require the officer to observe anything suspicious about a person before stopping and investigating someone; however, in Pennsylvania, checkpoints must satisfy certain administrative standards such as advance publicity and use of a random system of stopping motorists. With my training and experience as the head of the Pittsburgh DUI Task Force for several years, I am well versed in helping a person understand why they were stopped and whether a police officer had a reason to stop and arrest them for DUI.

What are the police looking for when they are searching for DUI drivers?

The National Highway Traffic Safety Administration (NHTSA), part of the United States Department of Transportation, has produced a guide that contains 20 driving patterns that NHTSA states are "cues" that police officers look for when determining whether to stop a driver for possible DUI. The driving patterns are listed in descending order of probability:

Turning with a wide radius (65%)
Straddling the center of lane marker (65%)
Appearing to be drunk (60%)
Almost striking an object or vehicle (60%)
Weaving (60%)
Driving on other than a designated roadway (55%)
Swerving (55%)
Speeding (55%)
Stopping without cause in a traffic lane (55%)
Following too closely, or tailgating (50%)
Drifting (50%)
Tires on the center or a lane marker (45%)
Braking erratically (45%)
Driving into opposing or crossing traffic (45%)
Signaling inconsistent with driving actions (45%)
Slow response to traffic signals (40%)
Stopping inappropriately (35%)
Turning abruptly or illegally (30%)
Accelerating or decelerating rapidly (30%)
Headlights off (30%)

What happens after the police pull me over?

Usually, the police officer will attempt to engage you in conversation and attempt to observe some indication of impairment. This could be an odor of alcoholic beverages on your breath, bloodshot eyes, slurred speech, or most likely all 3 of these factors (the “big 3”) because these are the most common factors cited in police reports. Interestingly, an inability to produce your driver’s license, registration and proof of insurance may be a sign of impairment. This is simply the driver who is frantically looking through his/her wallet for their driver’s license, not realizing that they’ve passed it up several times, or that the police officer is keeping count of how many times they’ve passed it up. If this happened to you, you were undoubtedly asked to perform field sobriety tests and were most likely charged with DUI.

What are field sobriety tests (FSTs)?

Field sobriety tests (FSTs) are numerous balance and coordination tests that are used by police officers both to determine whether you are intoxicated and as evidence to be used against you to prove that you were driving under the influence. These tests range from the ones most people are aware of, such as walking a line, touching your nose with your index fingers and reciting the alphabet, to more obscure tests such as standing on one leg, counting backwards from 100, and picking up coins from the ground.

Most officers use 3 to 5 of these FSTs in their DUI investigations. Unfortunately, studies have shown that many of these tests have no bearing whatsoever on whether a person is intoxicated. There are only 3 FSTs that have shown a correlation between poor performance and intoxication; these are the one leg stand, walking in a straight line touching your heel to toe, and the Horizontal Gaze Nystagmus test. These 3 FSTs are known as Standardized Field Sobriety Tests and many police officers in Pennsylvania are now using these standardized tests.

Of all the field sobriety tests, the Horizontal Gaze Nystagmus (or HGN) is probably the most controversial test because of its quasi-scientific nature. For many years, Pennsylvania courts did not allow this test to be used as evidence; however, that has now changed. During this test, the officer will ask you to follow a penlight, the tip of a pen or even the tip of his/her finger as this "target" is moved slowly in a horizontal line from left to right. You will be instructed that you must keep your head still. The officer will try to estimate the angle at which he/she observes an involuntary bouncing or jerking of your eye as it tracks the target. If the bouncing or jerking is observed prior to 45 degrees it supposedly indicates a blood alcohol level of .05% or greater.

However the HGN test is fraught with problems, not the least of which is the officer's potential inability to accurately estimate the angle of onset. Further, a number of people have nystagmus naturally, and others will display the symptom readily after an accident.

Do I have to take field sobriety tests (FSTs)?

Although the police will never tell you, you do not have to take any of the FSTs. In fact, FSTs are used to make the police case against you stronger. You may think that you are doing well as you perform the tests; however, when you eventually see the police report you will more often than not find that the police officer failed you on each test for various reasons. Many times your recollection of the test will not be what is written in the police report. If you are going to refuse FSTs, politely tell the officer that you do not wish to take the FSTs. You should also realize that refusing to take these tests generally has no bearing on the officer’s decision of whether to arrest you; the officer does not necessarily need FSTs to justify your arrest if there are other signs of impairment present.

Why did I have to blow into a device on the street and still have to take a blood or breath test later?

More and more police agencies are using Preliminary Breath Tests (PBTs) as a final field sobriety test to obtain an estimate of your blood alcohol concentration on the street before the evidentiary test is given at a later time. The officers are supposed to tell you the test is voluntary and that, if taken, you still have to take the evidentiary blood or breath test at a later time. It is important to remember that these PBTs are not an evidentiary test and may not be used as a basis to charge you with DUI. If you happen to see the reading, which you probably won’t, this does not necessarily mean that you are going to test over the legal limit on the evidentiary breath test, as PBTs are not routinely calibrated like the instruments that are used to determine the results of the evidentiary test.

What are the different tests that the police can use to determine my blood alcohol concentration?

The two ways that police use to determine your blood alcohol concentration in Pennsylvania are obtaining a breath sample by having you blow into a machine called a breathalyzer/intoxilizer, or by having a sample of your blood drawn and analyzed. If your blood alcohol concentration is at or over .08%, you will be charged with DUI. If you are driving a commercial vehicle, or are a minor, the threshold is much lower. For DUI purposes in Pennsylvania, a minor is anyone under the age of 21. Not only will you be arrested for DUI, you will probably be charged with underage drinking too and will face an additional 90-day suspension of your driver’s license on top of whatever suspension is mandated by your DUI arrest.

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What happens if I refuse to take a chemical (blood or breath) test?

Two things will happen if you refuse to take a chemical test; you will face a longer driver’s license suspension and you will still be charged with DUI. If this is your first arrest, the longest license suspension that you will face, by statute, is 60 days if you agree to take a test (although a judge may add time to your suspension). Depending on your blood-alcohol concentration, you may face a 30-day suspension, or if it is at or above.08 but below 0.10%, you are not required by statute to have your license suspended. Deciding whether to take a chemical test is a decision that each person has to make on his or her own and, although I see opinions on this question on many other attorney’s websites, I offer no opinion on that decision. It is a personal decision and it is yours to make. In some cases, it may be better to take the test; in other cases, it may not be the best choice. The only thing that I will say is that refusing a chemical test is not going to get you out of being charged with DUI.

Am I entitled to an attorney prior to deciding whether to take a chemical test?

No, because even though you are under arrest and the evidence obtained from the chemical test will be used against you in court, this is also a civil action involving your driver’s license. This is known as the “implied consent rule.” This is truly legal gibberish and it’s difficult to understand when sober, let alone while you’re sitting in a police station under arrest. What this means is that when Pennsylvania issued you a driver’s license, you agreed, whether you knew it or not, that you would not refuse to take a chemical test if asked to do so by a police officer. The police officers will usually read you a warning before you make the decision telling you that you have no right to an attorney and no right to refuse the test. They speak the truth.

The bottom line is I was driving, I got arrested, and the test showed that I had been drinking - What can be done for me?

In many cases, the reason behind the stop of your car and reliability of the test results are susceptible to challenge in court. Police officers write hundreds of reports a week and often fail to include details which, when properly investigated, provide a legal defense for the stop and possibly the administration of field sobriety tests and blood or breath tests. Further, even if we cannot show that there was a problem with the machine, it is often possible to show the results are not reliable and that errors and/or mistakes can be made, and therefore a reasonable doubt may exist as to the accuracy of the test result in a particular case.

Can I represent myself?

The answer is yes; you are allowed by the Constitution to represent yourself in any criminal proceeding. However, as the old adage says: those who represent themselves have a fool for a client. The judge will advise you that you will be up against an experienced prosecutor and will be getting no additional help.

What are the potential defenses in a DUI case?

There are numerous potential defenses in a DUI case. The officer must have had a reason to stop you, to ask you to perform field sobriety tests and to arrest you and request that you take a chemical test. If the officer’s actions do not meet a certain legal standard, evidence may be suppressed, which means that the government may not use it against you at trial. Other areas that can be attacked are the methods used to test you and the results obtained.

What are some of the problems with breath testing?

The problem with an evidentiary breath test is that it assumes a person is of "average" physiology and metabolism. We know that there is no such thing as the average person, but this is the standard that is used when you take a breath test. As such, most breath testing instruments that register many chemical compounds found on the human breath assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood. However, in actuality, this ratio varies widely from person to person (and within a person from one moment to another). The breath testing instruments actually measures the methyl group in the alcohol compound, and not specifically alcohol. Of this methyl group there are hundreds, if not thousands of compounds that also contain this group, of which hundreds have been well documented on human breath. Other problems include burping within 15 minutes of testing, which can put the alcohol from the stomach into the mouth producing a false high reading. Radio frequency interference can also result in inaccurate readings. As far as testing during the absorptive phase, the blood, or breath test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 to 90 minutes for complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can often cause inaccurately high test results.

Are blood tests more accurate than breath tests?

Analysis of blood for alcohol concentration is considered much more accurate and reliable than the breath testing instruments. However, there are also potential problems with blood tests, such as fermentation of the sample (inadequate preservative in the test tube and/or lack of refrigeration), coagulation problems, lack of sterilization, and contamination by using an alcohol-based sterilization agent. There may also be problems with the chain of custody of the blood sample.

Can medical issues present a defense against DUI?

Yes, there are many medical issues (such as diabetes, gastric bypass operations, gastric reflux conditions, a number of pre-existing ailments that require medication, eyesight problems, etc.) that can be used to help obtain a dismissal or reduction of charges. In many cases, medication actually exaggerates the effects of alcohol. These conditions usually require a letter and/or medical records from your doctor explaining the severity and duration of the medical condition.

What happens if I drive on a suspended license?

If you drive on a suspended license you will be in violation of Title 75, §1543 of the Pennsylvania Motor Vehicle Code, which is punishable by a period of time in jail and a hefty fine. It is important when your driver’s license is suspended that you do not drive at all, not even to the local store to get a gallon of milk. Even if you do nothing wrong, you may still get caught. If you’re involved in an accident, even if you’re not at fault, the police may be called and when they ask you for your license, you won’t be able to provide it (because you have to send it in to PennDOT while it is under suspension). Police officers can easily check your license through a computer and find out in seconds that your license is suspended.

What is an interlock device?

An interlock device is a breath testing device that is wired to your vehicle's ignition. It has a mouthpiece and requires an alcohol free breath sample before the engine will start. The interlock then requires "rolling" breath samples (testing while the vehicle is operational) to ensure the subject is not drinking while driving. If the device detects a measurable amount of alcohol during a "rolling" test, the vehicle may shut off, or instead report the use of alcohol directly to the judge and/or probation officer (it also reports any tampering). The fees to install an interlock (and maintain calibration on a regular schedule) may reach thousands of dollars. Currently, this little gadget is for repeat DUI offenders. However, there are some who advocate that all new cars in the United States must be equipped with an interlock device.