DUI is the most prevalent crime in the state of Pennsylvania. Nationally, approximately 1,400,000 people are arrested each year for DUI and over 50,000 are arrested in Pennsylvania alone. As a result, the legislature has enacted harsh penalties for DUI convictions, including mandatory jail time and lengthy license suspension if convicted of this crime. The DUI law is found in section 3802 of the Pennsylvania Vehicle Code. It is a misdemeanor of the second degree or first degree, depending on prior record and blood alcohol level, and may be punishable by mandatory jail time and lengthy license suspension.
The crime of Driving Under the Influence occurs when an individual "drives, operates, or is in actual physical control" of the movement of a motor vehicle while under the influence of alcohol or a controlled substance. The law sets three tiers of intoxication with the resulting penalties becoming more severe the higher the blood alcohol content.
The lowest tier is called General Impairment and is found in section (a)(1) of the DUI law. All individuals charged with DUI are charged with General Impairment. This section states that an individual is guilty of DUI when, based upon the officer's opinion, the individual has enough alcohol or drugs in his system as to impair his abilities to operate a vehicle safely. This section is not based on a particular blood level, but rather the officer's opinion based on driving behavior, observations of intoxication (odor of alcohol, bloodshot, glassy eyes, difficulty balancing) and other evidence such as performance on field sobriety tests. The General Impairment section gives the Commonwealth a way to convict motorists when there is no blood level for those who refused chemical testing.
The remaining sections of the DUI law are based on the results of the breath or blood test. Section (a)(2) applies when the individual's blood alcohol concentration (BAC) tested between .08% and .10%; Section (b) applies where the BAC is between .10% and .16%; and Section (c) applies when the testing results are above .16%, or if drugs are present. Other sections of the DUI law include Section (d) Driving Under the Influence of Controlled Substances (both legally prescribed and illegal controlled substances), and Section (e) which covers individuals under the age of 21 who drive with a blood alcohol level greater than .02%.
The police do not necessarily have to observe a vehicle being driven in order to charge a DUI. The law states that one must "drive", "operate" or be in "actual physical control" of the vehicle. If driving behavior is not observed by the officer, typically in situations when an accident occurred, other evidence may be used including circumstantial evidence, statements made by the driver, statements by eyewitnesses and the location of the vehicle. It does help the defense, however, when the officer does not actually see the motorist operating the vehicle.
Field sobriety testing is not required by law but rather, is evidence the police are trying to gather against you. As these tests are not required by law, the motorist may (politely) refuse the field testing without fear of any additional penalties. However, a motorist should always agree to take the blood or breath test, as refusing could lead to increased penalties, including increased jail time (if convicted) and lengthier license suspension.
Most clients incorrectly think that field sobriety testing is designed solely to test motor function and balance. This is untrue. There is a second component of these tests which tests the motorist's mental acuity – the ability to listen and to follow instructions. I have had clients do well on the 9 step walk and turn test, for example, but in the officer's opinion they failed because they started the test prematurely or they counted to the wrong number.
There are a variety of field sobriety tests that are given by police departments. The most common are the "9 step walk and turn", the "1 leg raise", and the "index finger to nose test." There are many other recognized field tests but these are by far the most common in Southeastern Pennsylvania.
In the 9 step walk and turn, the motorist is asked to take 9 steps touching heel to toe in a straight line, pivot, and return 9 steps heel to toe. The officer is trained to look for mistakes in counting, using the arms for balance, not touching heel to toe or falling off the "line." There is no requirement that the test be performed on a visible line and factors such as sloping of the testing site, debris, footwear worn or prior medical condition can affect performance of this test.
The One Leg Raise test typically requires the motorist to stand on one leg and lift the other leg a certain height off the ground for a certain amount of time – typically 30 seconds. Failures include putting the foot down, using arms for balance, swaying and improper counting.
In the Index Finger to Nose test, the motorist is asked to close his eyes, tilt his head back and touch his nose with his index finger. Failures include not touching the nose, not closing the eyes, or balance problems.
Another Field test that is commonly given is not admissible against the motorist in court. The Preliminary Breath Test, also known as a PBT, is usually given by the officer after the field tests are administered. This device, which resembles a pen or a small flashlight is designed to give the officer a rough idea of the amount of alcohol that is present. If the number approaches the .08% limit, then the officer has the right to request further chemical testing – usually a blood test at the hospital or a breathalyzer machine at the police station. The results of the PBT are not admissible in court because the device is not considered accurate enough to be used as evidence in court. Blood testing and breathalyzer machines are more reliable and the results are admissible. The results of the PBT are so unreliable that even the mention of the test at trial results in an immediate mistrial.
Bottom line: Field sobriety tests are not designed for the motorist to pass and are tools simply to gather evidence against the motorist. While the blood or breath test should always be taken by the motorist, the Field Sobriety Testing should be politely refused.