Driving While Intoxicated

If you are reading this material, there is a good chance that you have been stopped and charged with a DUI. You may not have been detained and more than likely let go and released to a friend or relative after the police completed their investigation.

Normally, if you’re pulled over for a routine traffic stop such as going through a red light or failing to use your directional signal, the officer will be on the lookout for certain signs of intoxication, especially if the stop occurs later in the evening or at night. The signs of intoxication that the officer is looking for are:

drinking while driving

Field Sobriety Tests

If an officer suspects the possibility of the presence of alcohol, he or she may ask if you have been drinking. Based on these observations, the operator may be asked to exit the vehicle to perform certain field sobriety tests.

Field sobriety tests are not mandatory and you cannot lose your operator’s license in Pennsylvania for refusing to do the field sobriety tests. However, if you do refuse to do those tests, that refusal can be used at trial as evidence of knowledge of intoxication.

The field sobriety tests are very subjective and depend on a number of things such as physical disabilities, age, topography, weather, location and more. You should always inform the officer if you have any physical disabilities or other reasons for not successfully completing the tests even while sober.

Breathalyzer Test

The officer may ask for you to take a portable breath test; again, the portable breath test is not mandatory but a refusal to take the test can also be used as evidence against you. If the officer believes that he or she has sufficient evidence, you will be asked to take either an official blood test or breath test. These tests are mandatory and if you refuse, your operating privileges will be suspended by the Commonwealth of Pennsylvania for at least one year. In addition, breath or blood can be mandated by the acquisition of a search warrant by the arresting officer.

In most situations in most counties (except for Philadelphia County) you will be released to a family member or friend after the test or procedure is completed and will be given little or no paperwork evidencing your stop and subsequent arrest. The arresting officer will file a criminal complaint with the local magisterial district court and you will receive a formal criminal summons in the mail within two to three weeks of the stop. If you refuse to take the chemical test, you will receive notification from the Pennsylvania Department of Transportation within a matter of two to three weeks of the stop as well.

breathalyzer test


The penalties for driving after imbibing alcohol or drugs depend on the quantity of alcohol in your system or whether the intoxicant was drugs rather than alcohol. The penalties increase as the amount of alcohol increases and as the number of offenses increase so that the penalty for a first offense, first tier (lowest amount) of alcohol is considerably less than a first offense third tier (highest amount of alcohol or drugs). Likewise, a first offense first tier DUI carries a lesser penalty than a third offense first tier.

Mandatory Minimum Sentences

In Pennsylvania, the DUI law contains mandatory minimum sentencing which means that a judge must sentence a defendant who either pleads guilty to or is found guilty of a DUI offense. These mandatory minimum sentences are based on the amount of alcohol and/or drugs and the number of offenses which have been committed by the defendant within a 10 year period. For example, the mandatory minimum sentence for a first offense third tier (.16 and greater) is 72 hours in jail. The mandatory minimum sentence for a second offense third tier is 90 days in jail and the mandatory minimum sentence for a third offense third tier is 1 year in a state penitentiary.

The important thing about a mandatory minimum sentence is that the judge may not sentence less than the mandatory minimum no matter what is presented by the defendant in terms of mitigating circumstances. However, the judge may sentence to more than the mandatory minimum if the sentencing guidelines indicate that a higher sentence should be imposed.

Most counties have intermediate punishment programs or provisions for house arrest or electronic home monitoring which in certain circumstances allow defendants to continue to work and serve their jail time either with an electronic home monitor or on the weekends. Each county has similar but somewhat different programs which is why it is important to hire an attorney who is familiar with DUI practice in the five-county area.

Contact Your Attorney

You should contact an attorney immediately upon being released or certainly immediately upon receiving your paperwork from a district court. It is advisable to hire an attorney who specializes in DUI’s and motor vehicle violations since this is an area of law which is constantly undergoing change and is very complicated.

The definition of driving after imbibing alcohol or drugs is found in: 75 Pa.C.S.A. §3802.

The penalties for driving after imbibing alcohol or drugs are found in: 75 Pa.C.S.A §3804.

Defending a DUI

It is not impossible to defend a DUI. Most of the things we have been talking about go to mitigating the damage and arriving at the least oppressive result both from a standpoint of jail time and license suspension time. There are occasions when a DUI can be defended either because the police officer did not have probable cause to originate the stop or because the police officer failed to follow procedures, or the defendant was really not under the influence of either alcohol or drugs.

With the introduction of drugs, the burden on the Commonwealth has shifted as it is considerably more difficult to determine the amount of a certain drug necessary for intoxication. In addition, many times the effects of a certain drug or drugs are not apparent and do not present the same indicators such as odor that are presented when alcohol has been consumed.

DUI Law book

Case Details

It is important that you discuss all the elements of your stop with your attorney including what you did, drank and ate for the 24 hours prior to your stop as well as considerable time after your stop that might be considered important. If you are stopped and charged with a DUI, you should immediately make a record of everything that occurred while it is fresh in your mind so in the event that there might be a defense it can be recognized by your attorney and used to your advantage. A possible defense may not eliminate the charges completely but may bring about a better result especially when dealing with mandatory minimum sentences.

In addition to challenging the DUI itself, it is possible you may want to appeal the chemical test refusal which can be done within 30 days of the receipt of the notice of the refusal from PennDOT. The law in this area is vastly in the favor of the Commonwealth. However, there have been some cracks in the strict application of the chemical test refusal statute by the courts and it is sometimes worth filing an appeal to prevent a 1 year loss of license.

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