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.

U.S. Supreme Court DUI Blood Draw Decision and Pennsylvania DUI Law

The United Supreme Court ruled Wednesday that police usually must try to obtain a search warrant from a judge before ordering blood tests for DUI suspects.  The case is Missouri v. McNeely, 11-1425.

The justices sided with a Missouri man who was subjected to a blood test without a warrant and found to have nearly twice the legal limit of alcohol in his blood.   Justice Sonia Sotomayor wrote for the court that the natural dissipation of alcohol in the blood is generally not sufficient reason to jettison the requirement that police get a judge's approval before drawing a blood sample. 

Missouri and the Obama administration were asking the court to endorse a blanket rule that would have allowed the tests without a warrant. 

In the opinion, the court briefly touched upon the availability of breath testing equipment as an alternative to blood testing.  However, as we at the Morgan Defense Firm have argued, breath testing is inaccurate.  In response to a Dauphin County Court of Common Pleas decision resulting from a case brought by our colleagues in the Defense Bar, the Pennsylvania State Police have stopped using breath testing devices.  Moreover, the Pennsylvania appellate courts have consistently held that a defendant need not be offered a choice of test, nor does the defendant's fear of needles constitute a valid reason to refuse testing. 

You need not worry about the forcible removal of blood, but the coercive affect of the implied consent law requires you to submit to blood testing in lieu of higher penalties and an automatic license suspension.

I am often asked if one should submit to blood testing.  My response is "yes."  

First, the Pennsylvania DUI law  treats a refusal the same as the DUI-highest rate of alcohol.  If you have only had a couple of beers, you may receive a lesser punishment.  If you have had more than a few, the punishment will be the same.

Second, the automatic license suspension for refusal of a blood draw is consecutive to any suspension you receive for the DUI.  In other words, you are looking at a minimum of 24 months of suspension. During a DUI-related suspension, the mere act of driving a vehicle (even without alcohol in your system) will result in a 60 day jail sentence. 

Third, a refusal may make you ineligible for participation in the ARD program. 

Fourth, and most importantly, our firm finds your BAC to relevant, but not the most important factor in fighting your case.  Unlike other attorneys, we examine every aspect of your case beginning with the reason for the stop.  As a result, we have achieved many successful DUI Defense outcomes including dismissal of charges when a persons BAC far exceeded .16%. 

In one notable case, our client refused testing.  We beat the charge only to have him pick up another DUI charge where the reason for the stop was based solely on his status as a suspended driver.  

If you are asking yourself "Should I give a blood sample in a DUI Case?"  the answer is yes.  

DUI Defense is NOT Criminal Defense (Part 1)

If you have been charged with DUI in Pennsylvania, you need a Top DUI Defense Lawyer.  You will notice that I did not say "Criminal Defense Lawyer."   This is because DUI Defense is a specialized skill that requires a knowledge of far more than basic criminal procedure.

If a person assaults another person, the defense is fairly simple.  The defense attorney must know who the participants were and whether his client struck, kicked, or otherwise made contact with another person for the purpose of inflicting bodily harm.

In a DUI Case, the Defense Attorney must know:

1. Did the officer have probable cause to stop the defendant's vehicle
• Was there a motor vehicle code violation?
• Did the activity happen on a roadway or a trafficway
• Was there an accident?
• Were there facts which would lead a reasonable office to conclude that criminal activity was afoot
2. Did the officer have probable cause to place the defendant under arrest?
• Did the officer smell alcohol?
• What were the exact actions of the defendant that led the officer to believe the defendant was operating a motor vehicle after imbibing alcohol
3. Was the chemical sample taken in a manner consistent with Pennsylvania law.

The defense of DUI cases is not Criminal Defense.  Therefore, you should not be satisfied with a Criminal Defense Attorney.  You should insist on hiring one of the best DUI Defense Attorneys in Pennsylvania.

More information in our next post. 

DUI Defense Attorneys in Pennsylvania

Let's be realistic.  There are a lot of attorneys out there who will represent individuals charged with DUI.  Fewer will defend individuals charged with DUI.  Fewer still are actual DUI Defense Attorneys. 

What is the difference?   Well, it starts with a commitment to this specialized are of law.  Unlike estate planning, divorce, or real estate, your liberty is at stake when you are charged with DUI.

Unlike criminal defense, DUI Defense requires a specialized knowledge of the law, science, and most importantly, the real-world needs of our clients.  DUI reaches across the socioeconomic spectrum.   We have represented celebrities, doctors, attorneys, accountants, construction workers, and college students.  Regardless of our client's status, we understand the devastating impact ta DUI conviction can have upon their future.


At The Morgan Law Firm, my staff and I take your liberty seriously.  We are well-versed in this area of law.