Driving, when a school bus stopped with its lights and pulled out the stop sign. I was beside it and continued. Am I okay here? 75 Pa.C>S.A. 3745

There are a couple of issues here: Your responsibilities and the Bus Driver's Responsibilities:

Here are yours:

(a) Duty of approaching driver when red signals are flashing.--Except as provided in subsection (g), the driver of a vehicle meeting or overtaking any school bus stopped on a highway or trafficway shall stop at least ten feet before reaching the school bus when the red signal lights on the school bus are flashing and the side stop signal arms are activated under section 4552(b.1) (relating to general requirements for school buses). The driver shall not proceed until the flashing red signal lights are no longer actuated. In no event shall a driver of a vehicle resume motion of the vehicle until the school children who may have alighted from the school bus have reached a place of safety. The driver of a vehicle approaching an intersection at which a school bus is stopped shall stop his vehicle at that intersection until the flashing red signal lights are no longer actuated.

(b) Duty of approaching driver when amber signals are flashing.--The driver of a vehicle meeting or overtaking any school bus shall proceed past the school bus with caution and shall be prepared to stop when the amber signal lights are flashing.

Here is the bus driver's:

(c) Use of red signals.--The red visual signals shall be actuated by the driver of every school bus whenever the vehicle is stopped on a highway or trafficway for the purpose of receiving or discharging school children, except as provided in subsections (e) and (f). The signals shall not be terminated until the school children who may have alighted from the school bus have reached a place of safety or until boarding school children have completed boarding the bus.

(d) Use of amber signals.--The amber visual signals shall be actuated by the driver of every school bus not more than 300 feet nor less than 150 feet prior to making a stop for the purpose of receiving or discharging school children and shall remain in operation until the red visual signals are actuated. Amber signals shall not be used unless the red visual signals are to be actuated immediately following.

So... if the amber signals were illuminated first, you would be found guilty if the bus driver got your plate number (yes... they are allowed to by statute).

If the amber signals were not illuminated, it is possible that you would be found not guilty.

If you are cited, make sure you get counsel immediately. Not only does this violation carry a ton of points, but also results in a 3 month license suspension.

F. Dean Morgan, Esq
The Morgan Law Firm
1-888-821-9446

Do I have a choice of Breath or Blood Test for a Pennsylvania DUI?

The Morgan Law Firm is here to help you if you are facing a Pennsylvania DUI.

The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania v. William Howard Barker, Jr., Appellant, 2013 WL 3475480, 2013 PA Super 178, 1153 WDA 2010 (July 10, 2013).  The Court ruled that the arresting officer refused to allow an alternate test in accordance with Barker’s request which violated the mandate of 75 Pa.C.S. § 1547(i), and thus deprived him of admissible evidence that, had it been available, would have been relevant to the charges.

75 Pa.C.S. § 1547(i): Request by driver for test — Any person involved in an accident or placed under arrest for a violation of section 1543(b)(1.1), 3802 or3808(a)(2) may request a chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.
The statute creates an imperative under section 1547(i) that if the motorist requests one of the alternate means of chemical testing, the officer is required to honor the request when reasonably practicable.

Section 1547(i) vests licensed drivers with a statutory right, the deprivation of which undermines the ability to counter the Commonwealth’s allegations. In this case, the officer's refusal to allow alternate testing pursuant to section 1547(i), in accordance with Barker’s requests, was a clear violation of the statutory right created in favor of any motorist arrested on the charge of Driving Under the Influence.
 
What does reasonably practicable mean?   That depends....

The statute presumes the validity of the motorist’s request and vests the officer with discretion to decline the request only if circumstances render the testing “incapable of being put into practice with the available means.” Thus, this language allows the officer to decline alternative testing only if the test requested is not within the means available at the time the testing is sought.

By the same token, this element of practicability acts as a safeguard against the whims of willful motorists who might demand alternate forms of testing as retribution upon the arresting officer: “The statutory scheme offers no quarter to arbitrary conduct by either a motorist under arrest or the arresting officer, but instead imposes an expectation on both that testing shall be carried out in recognition of the practical constraints on the officer with due regard for the motorist’s individual rights.”
 
Because the officer’s failure to comply with the statute violated Barker’s statutory right to the results of the chemical testing, the Court reversed the judgment of sentence and discharged the Appellant.

The Morgan Law Firm is ready to help you if you are facing a DUI. 

NTSB Wants a .05% BAC for DUI Drivers- A Pennsylvania Perspective

The National Traffic Safety Board (NTSB) has made two startling proposals in its effort to combat drunk driving.  First, they would like to lower the BAC to .05% and second, they would like to make ignition interlocks a standard punishment for first offense DUI cases.

In both cases, the efforts of the federal government are not tied to safety.  Instead, they are tied to money.

Let's begin with the ignition interlock proposal.   Over 70% of all DUI cases in the United States are first time offenses.  Thus, only 30% of all DUI offenders are likely to re-offend.  Moreover, if we look at the multiple offense category, we can see that the number of individual offenders is even lower than 30%.  So...  Is there a need for ignition interlock?  Of course not.

With regard to the .05% standard:  We must first understand that DUI is not "drunk driving."  The intoxication "high" of alcohol is different in each and every one of us.  For me, personally, I am "drunk" after two beers because I have a low alcohol tolerance.  However, for others, a six pack just barely makes a dent in their normal behavior.  Thus, we must understand that not everyone who drinks is drunk.

How many drinks does it take to equal a .05% BAC?  The answer for most of us is 2.5 12 ounce beers.  Or, two 16 oz. beers or, just over a pant of beer.  If you are drinking at a microbrewery, you will be legally drunk (.05%) after just one beer.   Are you "drunk" after one beer?  Of course not.

The biggest issue here is money.  The federal government has the ability to impose this limit on the states by restricting federal highway funds from any state that does not comply with its wishes.  In the early part of the last decade, the federal government made this unequivocally clear when it mandated a change to .08%.

The government is long on platitudes about saving lives but short on research as to how a .05% BAC threshold would be favorable to the current .08% threshold.  This is because the federal government does not have any such research to support its scientific conclusion.  Rather, they simply want to play the political game of "drunk driving is bad."

Clearly, drunk driving is bad.  But, what is "drunk?"  The government's attempt to quantify drunk first began with the premise that a person with a BAC above a .10% was legally intoxicated.  This presumption forms the foundation of the most commonly accepted tests associated with DUI cases:  Field Sobriety Testing and Breath Testing.

Field Sobriety Tests are purportedly an objective means of determining whether the subject indivual has a BAC above .10%.   They are not sufficient to determine if a person has a BAC below a .10%.  They certainly are useless to determine if a person has a BAC of .05%.  Thus, the police do not have an objective means of determining whether or not he has probable cause to believe a person's BAC is above a .05%.  How many false arrests will result from a police officer's reliance upon the mere smell of alcohol.

DUI Breath Testing, which is clearly inaccurate for a number of reasons, relies upon a simulator solution that simulates a BAC of .10%.  In Pennsylvania, the BAC was not calibrated to determine if the BAC was below a .05%.  Thus, there is a substantial potential for an inaccurate result.

Finally, an most importantly, the lower BAC suggests a criminalization of two behaviors that, taken separately are not illegal.  First and foremost, it is not illegal to consume a couple of beers.  It is not illegal to safely operate a motor vehicle on the highway.  If the NTSB has its way, it will be illegal to stop for a couple of beers after work and return home a short time later.

We need to recognize that DUI does not happen in the inner-city.  DUI occurs in the suburbs and rural areas.  DUI disproportionately impacts males.  DUI disproportionately impacts the employed.  DUI disproportionately impacts those who live in rural and suburban areas. 

The MADD lobby has made DUI a difficult offense to defense because prosecutors, judges, and legislatures do not want to be seen as soft on "crime."  A good friend said this...  "There are three types of cases that a prosecutor will never negotiate-  Child Sex, Murder, and DUI - and of these three, DUI is only one that has no victim in over 95% of all cases."

More importantly the MADD lobby has created robot legislators who will adopt financial penalties for DUI that do not benefit DUI reduction efforts.  In Pennsylvania, DUI defendants pay surcharges totalling nearly $2000.00 including a "Crime Victim's Fund,"  a "Firearms Training Fund" and many others.


As a Pennsylvania DUI Lawyer, I earn a living helping people charged with DUI.  The increased scrutiny upon the motoring public will certainly raise my income.  However, I would sacrifice this extra income for the protection of knowing the government is making rational decisions to combat DUI rather than simply attempting to grow revenue by treating good people like criminals.

The Morgan Law Firm
www.fdeanmorgan.com
1-888-821-9446

Can I represent myself against a DUI?

DUI Defense is not a Do-It-Yourself project.  The law is incredibly complex.  Self-representation is foolish.

Let's start with the basics.  Do you know where to stand in the courtroom?  Does that matter?  Yes, of course it matters.  When I train my new attorneys I often ask them this question:  If you walk into the courtroom that is empty, where will you put your stuff?

If you cannot answer this question.  DO NOT REPRESENT YOURSELF

Call us today at 1-888-821-9446
Free Case Evaluation

The Morgan Law Firm
www.fdeanmorgan.com

Should you refuse a DUI Blood Test?

A local lawyer appears on the radio.  There is nothing wrong with appearing on the radio and offering general legal information.  However, this is where the law and media coupling gets tricky.

I recently found myself in the position of helping a client through a DUI w/ Refusal.  When I asked him why he chose to refuse the blood test, he responded "[Radio Lawyer] said I should refuse all testing."  Certainly, this lawyer did not intend to make such a broad statement.  To do so would be malpractice.  Moreover, to do so would result in substantial consequences to his listeners, just as it did here.

I believe that Radio Lawyer stated that a person should not comply with a request for field sobriety tests.  This would be appropriate advice.  However, when broadcast to the masses, the message gets lost.

Here is the straight scoop:  If the police suspect that you are operating a motor vehicle after imbibing alcohol they may request you submit to a chemical test.  If you refuse to comply, you may suffer a license suspension of 12 or 18 months.  This is distinct from the criminal charges you may face.

Because you refused, you criminal charges will be treated exactly the same as an individual with a BAC above .16%. Moreover, in some cases, you will be ineligible for the ARD Program.

The Morgan Law Firm has helped hundreds of clients charged with DUI.  In many cases, we have helped our clients achieve successful outcomes.  We may be able to help you.

Free DUI Case Evaluation

The Morgan Law Firm
www.fdeanmorgan.com
1-888-821-9446

Negotiating Reduced Charges in Pennsylvania DUI Cases

In Pennsylvania, DUI charges are brought by the police.  The charges are generally based upon a person's Blood Alcohol Content or BAC in conjunction with the Pennsylvania DUI Statue, 75 Pa.C.S.A. 3802.  

Over 60% of all DUI cases are First Offense.  In the majority of these cases, the individual charged has no prior record.  Most of the people charged with DUI are otherwise law abiding citizens.

Pennsylvania DUI Penalties can be harsh.  For a first offense DUI, the defendant can be sentenced to incarceration and lose his/her license for a period of 12 months.  Obviously, this restricts the individual's ability to earn a living. 

Unfortunately, the DUI penalties disproportionately impact good people with no prior criminal history.  Thus, many of clients seek a reduction or a dismissal of DUI charges.

The Morgan Law Firm has been successful in resolving many cases through a reduction or dismissal of DUI charges.  However, we are successful because we challenge every aspect of the case.  We look for defenses and/or weaknesses in the prosecutor's case.  We understand the mindset of the prosecutors and we will work to be assured that the outcome of your case is the best possible outcome.

We cannot guarantee your charges will be reduced.  However, we will promise to look at every aspect of your case before we make any recommendation.  Contact us today  1-888-821-9446 or submit your information online to www.DUI-Case-Evaluation.com

What Happens at a DUI Preliminary Hearing in Pennsylvania

What Happens at the Preliminary Hearing:

The purpose of a preliminary hearing is to allow a magisterial district judge to determine whether the government can demonstrate a prima facie case against the defendant.  A prima facie case requires, in layman’s terms, the government to demonstrate that it is more likely than not that: (1) a crime was committed and (2) the individual charged is the person who committed the crime. A prima facie case is NOT a determination of guilt. 

To establish a prima facie case for DUI, the Commonwealth must establish that you operated a motor vehicle on a public roadway and there is evidence your blood contained drugs or alcohol.  We understand that the preliminary hearing is an opportunity to explore the facts of the case completely to determine the appropriate course of action to take in the case. 

DUI Defense is not a Do It Yourself Project.  Call The Morgan Defense Firm at 1-888-821-9446 or go online for a FREE DUI CASE EVALUATION.

In addition to the elements necessary to establish a prima facie case, we ALWAYS investigate the factual circumstances surrounding your arrest to determine the likelihood of success at trial.   We look at three very specific criteria to determine whether we will recommend trial, a negotiated guilty plea, or ARD. 

1.      Did the Officer have Probable Cause to Stop and Detain You?

First, we evaluate the officer’s probable cause to stop/detain.  To stop or detain an individual for DUI, the officer must possess sufficient facts that he/she believes that the defendant (or the defendant’s vehicle) is in violation of the Pennsylvania Vehicle Code or he/she has a lawful right to investigate a criminal action or accident. 

In the present case, the basis for the detention may not meet the legal standard outlined above.  Therefore, it is absolutely necessary that a full and complete evaluation of the case, including a discussion with the officer occur prior to making any recommendation about the outcome of your case. 


DUI Defense is not a Do It Yourself Project.  Call The Morgan Defense Firm at 1-888-821-9446 or go online for a FREE DUI CASE EVALUATION.
After that discussion, we will have sufficient facts to render an opinion on whether or not there is a likelihood of success at trial. Following the discussion with the police officer, we will give you our opinion as to whether the issues can successfully be resolved in our favor by filing a pre-trial motion. 

2.      Did the Officer have Probable Cause to Arrest You?

Second, we evaluate the officer’s probable cause to arrest.  To be constitutionally valid, a warrantless arrest must be supported by probable cause.  The Pennsylvania Supreme Court has held “probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.  Mere suspicion alone will not support a finding of probable cause. 

Unlike many attorneys we go beyond the field sobriety tests to determine whether or not probable cause exists.  Simply stated, Field Sobriety Tests are designed to make you fail.  The requested tests are inconsistent with our daily activities. 

Field sobriety tests are not divided attention tests.  To be valid, the test must be administered in a prescribed standardized manner; the standardized clues must be used to assess the suspect’s performance; and the standardized criteria must be employed to interpret that performance. If any one of the standardized field sobriety test element is changed, the validity is compromised. It has been my experience that most police officers do not administer the field sobriety tests properly.  Please note that when the tests are administered properly they are only accurate less than 70% of the time. 

I have attached a copy of the training manual utilized to train law enforcement officers.  As you may expect, the officers are often surprised to be cross-examined about their own training at trial.  Rest assured that I know the tests as well as, if not better, than the officer who administered the test.

There are several common phrases show up in nearly every DUI case:

However, there are a number of reasons, notwithstanding the influence of alcohol that such symptoms do appear.  Therefore, we look beyond those common phrases to examine the actual facts of the case.

Thus, we look beyond the tests and determine whether the things we do in normal, everyday life, such as standing and walking normally were indicative of intoxication.  Following my discussion with the police officer, I will give you my opinion as to whether the Probable Cause to Arrest issues can successfully be resolved in our favor by filing a Pre-trial motion.  


DUI Defense is not a Do It Yourself Project.  Call The Morgan Defense Firm at 1-888-821-9446 or go online for a FREE DUI CASE EVALUATION.

3.      Breath/Blood Testing

Third, we evaluate the chemical test procedure to determine if it is consistent with Pennsylvania law.   First, we determine if the chemical testing was performed within the two hour time limit (alcohol cases).  There are other procedural requirements that must be met before a Chemical Test can be admissible in court. 

BREATH TEST

Before we concede that the evidence is admissible, (which does not mean the same thing as being “accurate”)  we require the officer to provide me with the following:  Certificate of Accuracy; Breath Test Operator Certification; Certification of Calibration; Certification of Breath Test Operator responsible for testing the device for accuracy and calibration; Simulator Solution Certification; and Ampoule Certification. 

BLOOD

Before we concede that a Serum Blood Test is Admissible (which does not mean “accurate”), I require the officer to provide me with the following: Full name of Phlebotomist who drew blood of the defendant; Full name and CV/Resume of any witness the Commonwealth intends to call to testify as to the results of the blood testing; Plasma/Serum Testing Documentation; Copy of any and all documentation, including Standard Operating Procedures, relied upon by Medical Technician in conducting the testing of the Defendant’s blood serum; Copy of any and all documentation regarding the device/machine utilized to analyze the serum of the defendant including, but not limited to the following:  Device Manufacturer, model number, serial number, Date placed in service, maintenance reports, calibration reports, and out of service documentation within 180 days prior to the testing of the defendant’s serum and 90 days after the testing of the defendant’s blood serum; The title of any document, treatise, book, study, or report upon which the conversion factor relied upon by the hospital/laboratory to convert the amount of alcohol in a subject’s plasma/serum to a whole blood equivalent value; The name, title, and qualifications (CV) of the individual responsible for choosing the document, treatise, book, study, or report upon which the conversion factor relied upon by the hospital/laboratory to convert the amount of alcohol in a subject’s plasma/serum to a whole blood equivalent value.  

If the blood was subject to Gas Chromatography Testing, I require the officer to provide me with the following: A copy of the Laboratory Report; A copy of the Analyst’s Bench Notes; A copy of the documentation for all calibrators, controls, blanks, internal standards and standard mix and ALL associated Chromatographs; A copy of the Calibration Curve Result; A copy of all maintenance logs for the Gas Chromatograph device; A copy of all maintenance logs for all pipettes in use at the time defendant’s blood was tested.

REFUSAL

In addition, the specific factual circumstances regarding a refusal are important.  This includes whether or not you were fully advised of the consequences of the refusal including the reading of the DL-26. 

Please note that the refusal may result in a separate civil penalty, including the loss of license for a period of 12 or 18 months.  If retained quickly, I may be able help you avoid a suspension from PennDOT.    If you do receive notice of suspension, you may wish to file an appeal.  That would be separate and distinct from the criminal case.  

After the Preliminary Hearing:

After we have fully examined the potential success of these, and other, defenses, we will provide you with results of the evaluation including a categorization and recommendation as to how to proceed. 

Understanding how stressful Court can be, we may also provide a comprehensive written evaluation that fully explains the basis for our categorization and recommendation. 

In addition, we constantly review information through the duration of your case to be assured our recommendations are correct.  


DUI Defense is not a Do It Yourself Project.  Call The Morgan Defense Firm at 1-888-821-9446 or go online for a FREE DUI CASE EVALUATION.

Filing a Suppression Motion:

In some cases it may be favorable to file a suppression motion.  A suppression motion seeks to prevent evidence being used against you.  If it is recommended and authorized a suppression motion will be filed after arraignment. 
 
DUI Defense is not a Do It Yourself Project.  Call The Morgan Defense Firm at 1-888-821-9446 or go online for a FREE DUI CASE EVALUATION.