Misconceptions and Urban Myths About DUI

ANSWER: NOT TRUE. Everyone thinks from Hollywood that once you are arrested the police are required to read you your rights, otherwise known as Miranda warnings. In reality, Miranda warnings are not necessary unless an individual is in custody and will be answering questions which will incriminate himself. For DUI cases, it really doesn’t matter with the motorist has to say because most of the time cases are based upon the officer’s observations of the motorist and ultimately his blood alcohol level if he conented. If an individual wasn’t custody and did answer incriminating questions then a motion to suppress can be filed in the common pleas court to attempt to suppress the statement. If Judge finds that Miranda should have been given then whatever statements made will be kept out of court. The case does not get dismissed for lack of Miranda Warnings but the motorist’s statements do not come in as evidence.

ANSWER: NOT TRUE. In order to convict an individual for DUI, the police officer has to prove that the individual drove, operated, or was an actual physical control of the vehicle and that he was under the influence while doing so. If the motorist is inside the house when the police officer arrives, the state must prove that the motorist drove it there while intoxicated. In this scenario, the defense case is better because the police officer must prove that no alcohol was ingested after the individual arrived home. If the police officer did not ask if any alcohol was ingested after arrival, there may be a defense that the motorist drank and became intoxicated after he arrived home and did not drive while under the influence.

The truth of the matter is that you do not have to feel drunk to be considered legally intoxicated in Pennsylvania. The law states that so long as an individual’s blood alcohol level is greater than .08%, and that individual is deemed to be under the influence, no matter how sober he felt or how safely he could drive. It is impossible to guess at your blood alcohol level and I have had many clients who told me that they did not feel drunk when they were driving, but their level came in substantially over the limit for DUI.

ANSWER: TRUE (SOMETIMES). An individual can be found to be under the influence if they were taking prescription medication as directed, so long as the state can prove that the amount that was in their system was enough to impair an individual from driving safely. The standard for prescription drug DUI does not take into consideration long-term usage and high tolerances so an individual who is a long-term user will have a different tolerance than other individuals. The standard looks at how the amount of medication would affect a typical person and does not take into account how long the driver was taking the medication. This is especially true for prescriptions for painkillers, such as Percocet and Oxycontin. You may feel fine taking these medications, but the law may say otherwise if there is more than a certain level in your system.

When taking prescription medication, the standard for proving intoxication is called the “Therapeutic Range” which is the “normal” level of the drug that should be in your system. If you are within the Therapeutic Range, then it should not be a DUI. If you are above the Therapeutic Range, then it will be considered driving under the influence.

In Pennsylvania, you do not have to be “high” to be under the influence. The law states that any measurable amount of marijuana in the system is an automatic DUI, regardless when it was ingested. The law doesn’t take into consideration when you last smoked, only of the drug is in your system. I have had clients who smoked 12 or more hours who were arrested for DUI because there was still a measurable amount of THC in their system. They were not “high” when they drove but under the law they were considered under the influence. With Medical Marijuana, the drug is treated as a prescription, so if the amount of THC in the blood is within the “Therapeutic Range” then the driver should not be considered to be under the influence.

ANSWER: False. In Pennsylvania, in order to prove their case, the officer must prove that you drove, operated, or that you were in actual physical control of a vehicle. While it helps the state’s case if the officer sees you driving, they can still prove actual physical control if you were seated behind the wheel, the vehicle was running and that there was additional evidence that you drove the vehicle while you were intoxicated. Factors such as location of the vehicle, statements made by the driver that he drove and other factors are considered to establish actual physical control.

ANSWER: False. Unfortunately, Pennsylvania does not have a “sleep it off” policy if you pull over to the side of the road if you feel impaired. where you cannot be charged if you pull over if you feel impaired. Factors for actual physical control listed above are used to determine operation of the vehicle. I have won cases with this fact pattern when the client was asleep in the parking lot of a bar/restaurant and the client exited the establishment and fell asleep in their car without driving it.

ANSWER: False. There is a 10 year look-back period to determine whether this is a first, second or third DUI. The prosecutor will go back 10 years from the date of the DUI to see how many convictions you have for sentencing purposes. DUI is an escalating offense which means the more DUIs you get the more mandatory jail time the judge gives you. If you have cases over 10 years old, it will not automatically count against you, but the DA will likely make the judge aware of it.

ANSWER: Maybe (depending on county). ARD is a first time offender’s program where the charges are eventually dismissed after classes, community service, fines, and a period of arrest free behavior. Once the charges are dropped, the case is then eligible for expungement to have it removed from your record. Whether an individual can get ARD a second time is solely up to the District Attorney in the county where the new case was charged. While ARD is the same law statewide, the way that ARD is administered is up to the District Attorney in that county. Some counties take a very strict approach to ARD in that it is a program for true first time offenders and a second ARD is never given. Other counties will give ARD a second time if the old case is over 10 years. It is very important that you retain a lawyer who is familiar with the procedure in the county where you have been charged with committing the crime.