Can I Appeal My DUI Conviction?

If you go to trial to fight your DUI charge and are found guilty of the offense, that does not mean that your case is necessarily over. You have the right to appeal a conviction for a crime to a higher court. If you win your appeal, you may be granted a new trial, and your conviction may be overturned.

Appeals do not work the same way as criminal trials do. Typically, appeals move much slower than trials. While trials might involve a lot of time in court with witnesses testifying and attorneys presenting arguments to the jury, appeals are primarily argued through written appellate briefs. Here is what you might generally expect to occur when you appeal a DUI conviction with the help of DiCindio Law.

Notice of appeal

Before you can file an appeal, you must first file a notice of appeal in the court in which you were convicted. Under 210 Pa. Code Rule 903, your notice of appeal must be filed within 30 days of the date when the order of your conviction was entered with the trial court. You must fill out the paperwork for the notice of appeal and file it with the clerk of the court.

The appellate record

After you have filed your notice of appeal and any request for a transcript, the clerk of the court will stamp your notice with the date that it was received. It will then be transmitted to the Court of Appeals, and the Court of Appeals will order the clerk to produce the record on appeal. The record on appeal usually includes the trial transcripts together with the motions and orders that were filed with the trial court.

Under 210 Pa. Code Rule 906, you must file proof of service and your transcript requests when you file your notice of appeal. Once it has been filed, you will need to serve it on the trial court judge, the court reporter, the prosecutor, and the court administrator. Under 210 Pa. Code Rule 1931, the court clerk and court reporter will have 60 days to gather together the documents and transcripts for the record on appeal and to transmit them to the Court of Appeals. When the record is ready, copies will be sent to the court of appeal, the prosecutor, and to you as the appellant.

Right to be represented by an appellate attorney

You have the general right to have an attorney to represent you when you appeal a DUI conviction. If you cannot afford to pay for a lawyer, an appellate lawyer will be appointed to represent you by the state. While you can represent yourself when you appeal a DUI conviction, it is typically not a good idea. To increase your chances that you might succeed on your appeal, it is better to get the help of an experienced appellate lawyer who understands the rules and procedures involved with appeals.

Briefs

Your attorney and the prosecutor will write arguments in documents that are called briefs. The arguments that the lawyers can make can only be based on what is contained in the appellate record. You are not allowed to present new evidence or to rely on any information that was not presented at your trial. An appeal of your DUI conviction is not a new trial. It is simply a review of any error that might have taken place in your trial or motions hearings.

The brief that your attorney will write and file on your behalf is called the opening brief. In it, he or she will make the arguments of why your conviction or sentence was not proper. After the opening brief is filed, the prosecutor will be able to respond to it with a response brief. Prosecutors typically try to give arguments about why the sentence or conviction is proper. After the response brief is filed, your attorney will receive a copy and will be able to file a reply brief. Filing a reply brief provides you with the opportunity for your attorney to respond to the arguments that are made by the prosecutor. The process of filing these briefs can take up to about six months.

Oral argument

In Pennsylvania, the court of appeals that hears appeals of criminal matters is the Superior Court. Once your attorney and the prosecutor have filed all of their briefs, the Superior Court will schedule a date for them to present oral arguments.

Both your attorney and the prosecution will be able to present oral arguments directly to the appellate judges. If the judges have questions, the attorneys will have the opportunity to answer them. Each attorney will be allotted a specific amount of time during which they can make their oral arguments. When they are finished, the appellate judges will make their decision after they leave the bench.

The opinion

The decision that the Superior Court makes is issued in a written opinion. In some cases, the opinion may be filed shortly after the presentation of the oral arguments. In others, it may take months before the opinions are issued.

Most people do not win the appeals of their DUI convictions. The Superior Court sometimes affirms the trial court’s ruling in full, which means that it rejects your arguments. If this happens, your conviction and sentence will remain.

In some cases, the Superior Court will agree with the appellants because of the existence of some types of legal errors that could have impacted the outcome of the cases. In these cases, the Superior Court will reverse the portion of the sentence or conviction that was in error. A reversal could result in the conviction being overturned or it could result in changes to some of the terms of your sentence. If you lose your appeal, you may have the option to ask the Pennsylvania Supreme Court to permit an appeal to them.

Get help from DiCindio Law

If you want to appeal a conviction for a DUI, you must act quickly. You only have a limited time to file the notice of appeal with the trial court. Contact DiCindio Law today by filling out our online contact form to schedule a consultation and to get help with filing an appeal.

Proving a DUI Charge at Trial

If you are facing charges of driving under the influence of drugs or alcohol in Pennsylvania, you will need to decide whether to accept a plea offer or to instead take your case to trial. If you choose to go to trial, the prosecutor will have to prove the DUI charge against you beyond a reasonable doubt before you can be convicted of the offense. Every element of the DUI charge must be proven beyond a reasonable doubt at your trial. The legal team at DiCindio Law can help you to evaluate your case to determine whether or not you should go to trial or if you should instead accept a plea offer.

What are the elements of a DUI in Pennsylvania?

Every crime in Pennsylvania is made up of a number of elements. These are the individual parts of an offense that a prosecutor must be able to prove beyond a reasonable doubt before a defendant can be found guilty at a trial. If the prosecutor is unable to prove one of the elements of your DUI offense beyond a reasonable doubt, you should be found not guilty even if the prosecutor is able to prove the other elements. To prove that you committed a DUI, the prosecutor will need to prove each of the following elements beyond a reasonable doubt:

  • You are the person who was charged;
  • The offense happened on a specific date and time and in a specific location;
  • You drove, operated, or had actual physical control of the vehicle’s movement
  • You had consumed alcohol; and
  • The alcohol that you consumed was to the extent that your driving was impaired.

If you submitted to a Breathalyzer test, you may be charged with a DUI if your blood alcohol content was 0.08% or higher. You may be charged with higher levels of DUI offenses if your BAC fell into the range of 0.10% to 0.15% or was 0.16% or higher.

Driving, operating, or being in actual physical control of a vehicle

While a majority of DUIs involve driving a car or other vehicle, it is possible for you to be charged with a DUI even if your vehicle was not actually moving. If you were charged with drunk driving when your vehicle was not actually moving, the court or jury will consider multiple factors when determining whether you were operating or in actual physical control of your car, including the following:

  • Your car’s location
  • Whether the engine was running
  • Your location in the car
  • Whether you had your keys in your possession
  • Whether your car was legally parked
  • Whether you were asleep or awake
  • Whether your vehicle’s lights were off or on

In cases in which the defendant was not actually seen driving the car, the jury or judge will consider these and other factors that might indicate whether you were in actual physical control of your vehicle or had been operating it. For example, if you went to your car and fell asleep in it after visiting a bar without driving it home, it is possible that you might still be charged with a DUI. Whether you will be convicted of the offense will depend on the jury’s or judge’s analysis of the factors.

You had consumed alcohol

The prosecutor can prove that you consumed alcohol when there is no BAC test by introducing other evidence. In many cases, this may include the testimony of the officer who stopped you. The officer may testify about your performance on any roadside tests, whether you had reddened eyes, whether you slurred your speech, and about other observations that he or she made about you.

If you did submit to a BAC test, the prosecutor may use your results to try to prove that you had consumed alcohol.

Impaired or intoxicated by alcohol

To prove that you were impaired or intoxicated by the alcohol that you consumed, the prosecutor can show that your blood alcohol concentration was at or above 0.08%. He or she may also prove this element by proving that you were impaired through other types of testimony.

A prosecutor file a charge for DUI per se as well as a charge for driving while impaired against you when your BAC was 0.08% or higher. Prosecutors do this because they hope that at least one of the charges will be successful. If your BAC was above the legal limit, the prosecutor may find that proving a DUI per se charge against you is easier than proving that you were actually impaired.

Why you should get help from DiCindio Law

A DUI conviction can have serious consequences for your life. In addition to the potential criminal penalties, a DUI conviction may cause collateral consequences that can continue to negatively impact you long after you have completed your sentence. Getting help from an experienced criminal defense attorney can help you to weigh your options and to determine whether you should go to trial or should accept a plea offer. To learn more about your case, contact DiCindio Law to schedule a consultation.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

DUI with Blood Alcohol Over .16

In West Chester and throughout Pennsylvania, driving under the influence is treated seriously by law enforcement officers and the courts. If you are stopped by the police on suspicion of driving under the influence of alcohol, you may face even more serious penalties if your blood alcohol concentration tests at 0.16 percent or higher. This is considered to be the highest BAC level under Pennsylvania law, and it can bring a harsher punishment than if your BAC tests lower.

The impact of getting charged and arrested for a DUI with a BAC of 0.16% or higher can be damaging. Your license may be suspended for a year or more, making it difficult for you to get to where you need to go. You might also face several months to years of jail, substantial fines, and other penalties. If you have been charged with a high-BAC DUI offense, it is important for you to retain a criminal defense lawyer from DiCindio Law who is experienced in handling DUI cases as soon as possible.

What is a BAC level?

When the police stop people and suspect that they are under the influence of alcohol, the officers may ask them to submit to a breathalyzer or blood test. These tests are different than the preliminary breath tests that may be administered at the side of the road and are instead performed at the police station with a breathalyzer machine or by medical personnel who use blood draws to draw samples for laboratory analysis.

Your blood alcohol concentration refers to the percentage of alcohol that you have in your breath or blood at the time of your testing. Police ask motorists that they suspect of drunk driving to submit to one of these tests to determine the level of alcohol that they have in their blood.

In Pennsylvania, anyone who is found to have a BAC of 0.08% or greater will be charged with a DUI. If your BAC is 0.16 or higher, the potential penalties will be more severe.

You must be tested within two hours of the time of your stop. If you refuse, you may immediately lose your license for a year or longer.

What are the penalties for a high-BAC DUI of 0.16% or higher?

In Pennsylvania, people who are convicted of driving under the influence will face different penalties, depending on their BAC level and any prior offenses that they might have.

If you have never been charged with a DUI before and have a BAC that tests at more than 0.16%, you may face the following penalties:

  • From three days up to six months in jail
  • A fine of $1,000 up to $5,000
  • Mandatory attendance at alcohol safety school
  • The installation of an ignition interlock system for a year
  • Potential mandated attendance in a court-ordered alcohol treatment program

If you have a prior DUI conviction and are charged with a DUI when your BAC was higher than 0.16%, the penalties may be enhanced as follows:

  • Jail ranging from a minimum of 90 days up to five years
  • Suspension of your driver’s license for 18 months
  • Fine ranging from $1,500 to $10,000
  • Attendance at alcohol safety school
  • Ignition interlock system in your car for a year
  • Possible requirement to undergo court-ordered alcohol treatment

If you have two prior DUI convictions and are charged with a DUI when your BAC tests at more than 0.16%, you may face the following potential penalties:

  • Jail from one to five years
  • Suspension of your license for 18 months
  • Fine ranging from $2,500 to $10,000
  • Ignition interlock system installed for one year
  • You may also be ordered to undergo alcohol treatment

In addition to these penalties, there are collateral consequences that you could face. If you are convicted, you will have a permanent criminal record. A criminal record can make it harder for you to obtain employment or housing, and it may also be embarrassing for you. Your auto insurance premiums will likely increase. If you caused a death or injury when you were driving under the influence of alcohol, your sentence may be more severe. Finally, you may be sued in civil court for damages for any injury accident that you might have caused.

When your BAC tests at 0.16% or higher, you will be required to undergo an assessment for drug and alcohol addiction. If you are determined to have an addiction, you may be ordered by the court to complete a treatment program.

What to do if you are charged with a high-BAC DUI

If you are charged with a DUI with a BAC of 0.16% or higher, you should immediately retain an experienced West Chester DUI attorney at DiCindio Law. This offense is serious, if you are convicted, you could be sentenced to jail for up to several years. An experienced lawyer can start working on your case before your first hearing occurs.

You should receive a copy of the criminal complaint against you soon after your arrest. You should bring this document with you to show your lawyer so that he or she can see the specific charges that you are facing. After you have received your charges, the court will schedule a preliminary hearing. At this hearing, you will hear the options that you have. Having an attorney present to represent you can help you to secure the most favorable outcome that is possible for your case.

What defenses might be available?

If you decide to turn down a plea offer and go to trial, your lawyer will work to identify the possible defenses that are available to you. Some of the possible defenses might include the following:

  • There was no probable cause for the officer to stop you;
  • There was no probable cause for the officer to test you;
  • The results of your test were inaccurate;
  • The machines used for your test was faulty, inaccurate, or incorrectly calibrated; or
  • You were tested after the two-hour window had passed.

If the officer did not have probable cause to stop your car, your lawyer may seek to suppress the evidence against you. If your lawyer was successful, the charges would likely be dismissed. If other types of motions are successful, it could lead to a reduction in your charges. Getting help from an experienced DUI lawyer in West Chester can help you to determine whether any of these types of errors might have happened in your case. To learn more about your rights, contact DiCindio Law today by calling 610.430.3535.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

DUI While on Probation

Getting a DUI in Pennsylvania is bad at any time. When you are already on probation for a different criminal conviction, getting a DUI charge can be especially problematic. If you are convicted, your probation may be revoked. You may also have to serve time for both your underlying DUI offense as well as the new crime or conviction. At DiCindio Law, we represent people who are charged with all sorts of crimes, including DUI offenses when people are already serving probationary sentences.

Understanding probation

If you have received a sentence of probation, you are expected to adhere to a number of conditions. You may have to complete community service, meet with your probation officer, and appear in court when you are scheduled to do so. Depending upon the offense or your conviction, you may also be required to stay away from specific places or people or to refrain from using alcohol or drugs. Nearly every probationary sentence also includes a prohibition against committing new criminal offenses. In nearly every case, a DUI conviction will be counted as a violation of probation.

Determination of a probation violation

If you are accused of committing a violation of your probation, you will be scheduled for a hearing before a judge. The judge will hear your case and decide whether you violated the conditions or terms of your probation. At this hearing, the prosecutor is required to prove that you violated your probation by a preponderance of the evidence. This simply means that it is more likely than not that you committed what you are accused of doing. This burden of proof only applies to your probation hearing and not to the DUI offense itself. The prosecutor in your DUI case will need to prove that you committed the offense beyond a reasonable doubt to secure a conviction.

If you are convicted of a DUI or plead guilty to the offense, the prosecutor will be able to meet his or her burden of proof in your probation violation hearing. If you have only been charged, the judge in your case may make a determination based on the evidence in your DUI case according to the strength of the case against you or may continue your probation violation hearing until the new case is resolved.

What happens if you are found to have violated your probation?

If you are found to have violated your probation, judges have a number of different options available to them at your sentencing. The judge may add more time to your probation, order you to complete inpatient treatment, impose additional fines, order you to attend counseling, or revoke your probation and send you to jail.

If you are convicted of a DUI when you are on probation, the judge may order you to serve either a brief time in jail or up to the maximum time allowed for your underlying probationary offense. If you are facing a DUI charge while you are on probation, it is crucial for you to contact an experienced criminal defense lawyer.

What are the steps in the probation violation process?

When you are arrested for driving under the influence while on probation, the probation violation process will begin. You will have to appear in court for the DUI. Your probation officer will learn about your charges and start the process to revoke your probation by filing a statement of your violations with the court.

If you are arrested for violating probation, you may be sent to jail and be denied bond. Your lawyer can negotiate with the prosecutor to secure a bond or to establish that a probation violation did not occur. You will have to appear before a judge for a hearing about your alleged probation violation. Your defense lawyer will attempt to lessen the penalties if you are found to have violated your probation.

How will your DUI case be handled?

Your DUI case will proceed separately from your probation revocation proceeding, and any sentence that you might receive for a DUI conviction will be in addition to any sentence that you receive for violating your probation. The court may order any jail time to be served either concurrently or consecutively.

Pennsylvania follows a three-level system that is based on your BAC to determine the penalties for a DUI. The first tier is for a BAC of 0.08% to 0.099%. For the first offense at this level, you may be sentenced for up to six months of probation, be ordered to pay a $300 fine, be ordered to complete an alcohol safety school, and be ordered to attend a treatment program.

If you are convicted of a second offense DUI as a first-tier level, you may face from five days up to six months in jail and be ordered to pay a fine ranging from $300 to $2,500. You may also have your license suspended for one year and be ordered to install an ignition interlock device in your car.

For a third offense at the first tier, you may face from 10 days to two years in prison and be ordered to pay fines from $500 to $5,000. Your license will be suspended for one year, and you will have to install an ignition interlock device in your vehicle for one year. You may be ordered to complete a treatment program.

A second-tier DUI offense is for BACs ranging from 0.10% to 0.159%. For the first offense at this level, you may face from two days to six months in jail, a fine of $500 to $5,000, one year of license suspension, and attendance at an alcohol safety school. You may also be ordered to complete a treatment program.

A second offense DUI at the second-tier level could result in 30 days to six months in jail, a fine of $750 to $5,000, a one-year suspension of your license, mandatory installation of an ignition interlock device, treatment, and attendance at an alcohol safety school.

A third offense at the second-tier level may result in 90 days to five years of imprisonment, fines ranging from $1,500 to $10,000, an 18-month suspension of your license, attendance at a treatment program, and mandatory installation of an ignition interlock device.

The third tier is for people who have a BAC of 0.16% or higher, and people who are charged at this level face the most severe punishments. If you are convicted with a first offense at this level, you may be ordered to spend from three days to six months in jail, pay a fine of $1,000 to $5,000, face a one-year license suspension, be ordered to attend alcohol safety school, and possibly be ordered to attend treatment.

A second offense at the third tier may result in 90 days to five years in jail, a fine of $1,500 to $10,000, an 18-month license suspension, alcohol safety school, completion of a treatment program, and installation of an ignition interlock device for one year.

For a third offense at the third tier DUI level, you may be ordered to serve from one to five years in prison, pay a fine from $2,500 to $10,000, have your license suspended for 18 months, attend treatment, and have an ignition interlock device installed in your vehicle.

Get help from an experienced criminal defense attorney

If you have been charged with a DUI while you are on probation, it is important for you to retain an experienced criminal defense lawyer who is able to handle both your probation violation case and your DUI offense. Contact DiCindio Law today to schedule a consultation.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

What Happens If You Receive a First-Offense DUI in Pennsylvania?

Being charged with driving under the influence of alcohol in West Chester, Pennsylvania can result in serious consequences that can have a negative impact on your life. If you are a first-time DUI offender, your DUI charge will likely be a misdemeanor offense that will not have as large of an impact on your life as a felony offense could. However, you might still face potential jail time, substantial fines, mandatory classes, and a loss of your driving privileges. If you are facing a first-time DUI offense, it is important for you to understand what to expect. Working with an experienced DUI defense attorney at DiCindio Law might help you to secure a more favorable resolution to your charge.

DUI arrests in Pennsylvania

If a police officer pulls you over in West Chester and suspects that you are driving under the influence, he or she will likely ask you to complete some field sobriety tests. Your performance on these tests will be a factor in whether you will be arrested. If the officer is able to establish probable cause to believe that you were driving drunk, you will be detained, processed, and asked to submit to a blood alcohol content test. You may then be released after a few hours have passed or during the morning.

Pennsylvania has an implied consent law. Under this law, your ability to drive is considered to be a privilege rather than a right. By the act of driving, you are considered to have implicitly given your consent to submit to blood alcohol concentration testing when you have been taken into custody on suspicions of drunk driving. If you refuse to test, the officer must then inform you that your driver’s license will be suspended. Basically, if you refuse to take a Breathalyzer test to ascertain the concentration of alcohol that you have in your blood, you will be deemed to have given up your privilege to drive in Pennsylvania.

The court process for DUIs

The court will send you a summons in the mail after you have been released. This paper will tell you when to appear for a preliminary hearing. If you want to retain an attorney, it is a good idea to hire him or her before your preliminary hearing. Your lawyer will review the evidence in your case and advise you about the options that you have.

If you plan to enter a plea of not guilty or to fight the charges, you should be prepared for a battle. It may be a matter of your word versus the police officer’s word. While the prosecutor always has the burden of proving that you committed the offense beyond a reasonable doubt, you will still need to prepare a strong defense case for a trial. If you decide to plead guilty to the charge, you will still be required to attend the hearing. If you do not appear in court, you can face additional penalties that can make everything more difficult.

Penalties for DUI cases

The penalties and fines that you might be assessed will depend on the facts and circumstances of what happened in your case. Your BAC at the time that you were arrested may impact the penalty range. Pennsylvania assesses penalties and fines for DUI cases into three tiers. The first tier includes DUI cases in which your BAC ranges from 0.08% to 0.099% or when it cannot be determined. Typically, the penalty for a first-tier DUI offense will include having a misdemeanor conviction on your record, a fine, and the possibility of probation.

A second tier DUI offense is one in which your BAC falls from 0.10% and 0.159%. Typically, you can expect to face a possible time in jail, a license suspension of one year, and a fine that is more substantial. You may also be ordered to undergo mandatory counseling or treatment.

The third tier of DUI offenses is reserved for people who have a BAC of 0.16% or higher. At this level, you can expect to face a longer period of time in jail and the highest possible fines. If your BAC falls into the third tier, you can also expect to face treatment or counseling that will be ordered by the court in addition to the other penalties.

What to do to avoid a DUI conviction

The best approach to DUIs is to avoid getting a charge to begin with. If you are planning to go to a bar or a party where alcohol will be served, take money with you for a cab, public transportation, or ride-share service. If you drive to a bar, ask the manager if it is okay for you to leave your car in the parking lot until the next day.

When you have been drinking, you might think that you can still drive. However, you have to remember that your thinking is impaired after you have had a few drinks and that you cannot make good decisions about driving when you are intoxicated. It is best for you to remove the temptation to drive home after drinking by taking a cab or using a ride-share service to get to the bar or party. If you drink and drive, you will place both yourself and others around you at risk.

Get help for a first-time DUI offense

If you are already facing a first-time DUI offense, it is important for you to talk to an experienced DUI defense lawyer at DiCindio Law. You should avoid entering a guilty plea too quickly and should have an offer that is extended to you reviewed by a lawyer. It is possible that your attorney might be able to identify strong defenses that you can raise to secure a better plea offer or a dismissal of the charge against you. To learn about the defenses that might be available to you and the potential penalties that you might face, contact our firm today by calling 610.430.3535.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

Can I Refuse a Breathalyzer Test?

Drunk driving stops, arrests, and convictions occur frequently in Pennsylvania. Most people are acquainted with someone who has been stopped, arrested, or convicted for drunk driving. Because of how common these types of cases are, many people think that they know what you should do when you are asked to submit to a Breathalyzer test, and they might freely give you their advice even though they are not attorneys. Before you listen to someone else’s opinion about whether you should submit to or refuse a Breathalyzer test, it is important that you understand the consequences of refusing to submit to it when a police officer asks you to do so. At DiCindio Law, we regularly represent people who are facing DUI charges even after they have refused a Breathalyzer test, and we may work to secure the best possible outcome to any charges that you might face.

What happens if you refuse to submit to a Breathalyzer test?

When you drive on the roads in Pennsylvania, you give your implied consent to submit to a Breathalyzer test. If you refuse to take a test when you are asked to do so by a police offer, you could face serious consequences. If you are pulled over by an officer who believes that you might be under the influence of alcohol, you may have your license suspended or possibly face jail time if you refuse to submit to a test.

If you do refuse a Breathalyzer test, the prosecutors can still charge you with a DUI or DWI based on other evidence that the officer collects, including his or her observations, the results of a field sobriety test, or witness statements. Under Pennsylvania’s implied consent laws, prosecutors may be permitted to use your refusal to take a Breathalyzer test as evidence against you in a trial.

What is Pennsylvania’s implied consent law?

In Pennsylvania, your ability to drive is considered to be a privilege rather than a right. This means that your driver’s license can be suspended if you do not submit to a breathalyzer test when you are suspected of drunk driving. When you drive, you are considered to have implicitly consented to a Breathalyzer test in exchange for your driving privileges.

In Pennsylvania, if you refuse testing when you are suspected of driving under the influence, your license can be suspended for 12 months if you have no prior suspensions or 18 months if you do. In order to restore your driving privileges, you will also have to pay a fee once your period of suspension is over.

Despite the penalties for refusing a Breathalyzer, some people refuse because they think that the penalties are less than what they might expect if they submitted to the test. According to the National Highway Traffic Safety Administration, an estimated 20% of drivers who are suspected of drunk driving refuse to test. It is important for you to understand that you will still face the penalties for refusing to submit to a test even if you are successful in your DUI case because it is considered to be a separate offense and handled by PennDot, not the criminal system. Officers can also use other evidence to prove that you were driving under the influence. For example, they can testify that your speech was slurred, that your eyes were red and watery, and that they could smell the scent of alcohol on your breath. If you submit to the roadside tests, they can also testify about your performance on them.

If you submit to a Breathalyzer test and receive results showing that your BAC was 0.08% or higher, that does not automatically mean that you will be convicted of a DUI. It is possible that your attorney may be able to challenge the results to show that they were inaccurate.

How the validity of a Breathalyzer test might be challenged

When the police administer a Breathalyzer test, they are required to follow specific guidelines. If they fail to do so, the test results may be challenged. Some of these challenges might include the following:

  • The Breathalyzer machine was not properly calibrated;
  • The officer did not observe you for 20 minutes before giving you the test;
  • The Breathalyzer was administered more than two hours after your stop;
  • The officer who tested you did not have the required certification;
  • The officer who tested you did not do so properly; or
  • You were not tested two consecutive times.

If one of these challenges is successful, your test results may be inadmissible at any trial. This means that the jury would not hear evidence about your Breathalyzer test. If the results are found to be valid, there are still certain medical conditions that can result in a false positive.

You can have a false positive on a breath test due to some medical conditions and some medications can also give you false positive results because they have alcohol in them.  Smoking, vomiting, or drinking alcohol during the 20 minutes before the test will also invalidate the results.

Get help from an experienced DUI defense lawyer at DiCindio Law

When you refuse to submit to a Breathalyzer test, you can face serious penalties such as a long suspension of your license followed by substantial restoration fees. An attorney can help to defend you and to determine whether your stop was lawful. If you refused a Breathalyzer test and have questions about your case, call DiCindio Law at 610.430.3535. We can help you to understand the options that you might have and the possible defenses that you might have available to you in your DUI case.


DISCLAIMER
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale

How to beat a DUI

How to Beat a Driving Under the Influence (DUI)  Case

     DUI/driving under the influence offenses are some of the most frequently charged criminal offenses in the Pennsylvania. When someone is charged with a driving under the influence (DUI) offense they may immediately feel a sense of hopelessness because their liberty, driving privileges and reputation may be impacted.  This article is not meant to highlight some of the main ways someone can challenge a DUI case.

     There are programs that may permit you to avoid conviction if you are a first offender. For second or third (plus) offenders there may be treatment court options or intermediate punishment programs. This article is solely meant as an overview of the  litigation points of attack that need to be evaluated in every DUI case. Also, this is not to say that there will ALWAYS be legitimate issues in the following categories – these are the issues that a defense attorney (any worth his/her fee) MUST evaluate before making a recommendation to his client in any DUI case.

     First – the legality of the of the stop: Before any law-enforcement officer may stop a motor vehicle in Pennsylvania they must possess either reasonable suspicion or probable cause. Therefore, the first battle ground in any DUI case is whether or not the arresting officer possessed the needed legal justification to pull over and/or come into contact with the driver of the vehicle.  In these situations if the stop is found to be illegal/unconstitutional then all of the evidence that flows from it will be suppressed. If the stop is suppressed than the case must be dismissed.

West Chester Criminal Defense Lawyer

West Chester Criminal Defense Lawyer

     Second –  whether the officer possessed the requisite legal justification to take the driver individual for a chemical test of their breath or blood: Observations, field sobriety tests, defendant admissions, portable breath tests and more play into this evaluation. There are times where there is not the requisite legal justification to take an individual for further/formal chemical test of their breath or blood.  When that is the case the results of the chemical test are suppressed and not permitted into evidence.

     Finally – issues that may present themselves at trial: These issues typically involve two main categories outside of what has already been addressed.  One of the main issues at trial is the factual argument that an individual was not driving. That is not always a defense that is available to him/her for obvious reasons.  Another argument is based upon the scientific accuracy of the chemical tests of the breath/ blood.

     There are many other arguments and defenses that may present themselves in DUI case.  Each and every factual scenario is unique and this is not an exhaustive list by any means.  Before making any decision in any criminal DUI / driving under the influence case – at a very minimum, these issues should be examined, evaluated and understood before deciding on a strategy.


The above listed information does not include the entire crimes code, annotations, amendments or any recent changes to the law that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments or the most complete legal issues for all cases These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County.

DiCindio Law, LLC opens newly renovated West Chester Office

DiCindio Law, LLC opens newly renovated West Chester Office building.

Located in downtown West Chester, Chester County, Pennsylvania and built in 1900 – the firm’s building has undergone a top to bottom renovation/restoration with the idea of preserving and repairing the building to the beauty it once was and providing Mike’s client’s with a comfortable and accessible office location and atmosphere.

Mike DiCindio looks forward to continuing to serve his current and future client’s for years to come at this new location.

West Chester Criminal Lawyer and West Chester Personal Injury Lawyer

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What do I do when I am charged with a DUI

One of the first things that people call and ask is, “What do I do when I am charged  with a DUI”

The crime of Driving Under the Influence or “DUI” is likely the most commonly charged crime in Pennsylvania. With law enforcement targeting DUI offenders – people from all walks of life are being arrested and prosecuted.

Anyone who is arrested and charged with a DUI is going to have concerns about what they will be facing moving forward. Will I go to jail? How much is this going to cost? Will my employer find out? How long will I lose my license for? All of these are normal concerns of a first offender or of someone who has prior driving under the influence convictions or arrest. Further, not only are these normal . . . they are questions that are important for you to have answers to. Some things you can do.

1. Write down as much as you can about what you remember from the evening of the arrest. When determining what the best course of action or litigation strategy is for your case every detail may matter and may impact your case or the way in which your criminal defense lawyer proceeds. Nothing is insignificant.

2. Contact and hire an attorney. DUI cases may be common but they still impact your livelihood, reputation, finances and liberty. Now is the time to find an attorney who you trust to protect your interests and defend you in your case. There are no guarantees in criminal law.  Now is the time that you need to have your questions answered and understand what the different potential outcomes may be. While a strategy should be put in place quickly it is important to still understand that we as criminal defense lawyers do not always have all the information needed immeidately in order to properly decide how is best to proceed this early on.

West Chester Pennsylvania Criminal Defense - Conspiracy Cases

West Chester Pennsylvania Criminal Defense and Personal Injury Attorney

3. Ask questions. There is no question that you have that shouldn’t be asked. This is a significant event for you and the outcome very well may impact you in some manner for the remainder of your life. You do not want to look back in a few years and question what you did and/or why you didn’t do something with your case. No attorney worth hiring will make you uncomfortable or be bothered by your questions. Some things to think about:

a. Cost
b. Punishment
c. Trial issues
d. Time Frames/Length of the case
e. Pre-Trial Motions
f. Diversionary Courts/First Offender Programs and options
g. Things you can begin to do to help your case

These are just a few of the many things that you should be thinking about and doing when you or a loved one has been arrested and charged with a DUI. If you have any questions or are facing DUI charges call Mike DiCindio directly today.

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The above listed information does not include the entire crimes code, annotations, amendments or any recent changes to the law that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments or the most complete legal issues for all cases These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester

Endangering the Welfare of a Child due to a DUI

If you are caught driving under the influence / DUI and have a child in the vehicle who is under the age of 18, you may be charged with the crime of Endangering the Welfare of a Child. The crime of Endangering the Welfare of a Child carries severe penalties under the state’s sentencing guidelines.  These penalties are above and beyond what you would be facing for the DUI itself.  While there are different elements for the crime of Endangering the Welfare of a Child offense, case law has supported the proposition that driving DUI with a child in the vehicle is enough to prove those added elements of the Endangering the Welfare of a Child offense.

Being convicted of Endangering the Welfare of a Child based on a DUI charge can create irreparable consequences to you – personally and professionally – act fast.

As with any case, specific arguments based on the circumstances and factual scenario dictate the likelihood of conviction.  This makes it crucial to thoroughly investigate your case and formulate a strong defense strategy if you are charged with Endangering the Welfare of a Child due to a DUI / driving under the influence offense.  Having an Endangering the Welfare of a Child offense on your record can create irreparable consequences to your reputation and can potentially create clearance issues if you are an individual who works with children professionally.

If you have been charged with a DUI / driving under the influence offense or any other crime, contact Michael D. DiCindio, Esq. at DiCindio Law, LLC today.

The language of Section 4304 the Endangering Welfare of Children statute

  • 4304. Endangering welfare of children.
    (a) Offense defined.–
    (1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.
    (2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).
    (3) As used in this subsection, the term “person supervising the welfare of a child” means a person other than a parent or guardian that provides care, education, training or control of a child.
    (b) Grading.–
    (1) Except as provided under paragraph (2), the following apply:
    (i) An offense under this section constitutes a misdemeanor of the first degree.
    (ii) If the actor engaged in a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree.
    (iii) If, in the commission of the offense under subsection (a)(1), the actor created a substantial risk of death or serious bodily injury, the offense constitutes a felony of the third degree.
    (iv) If the actor’s conduct under subsection (a)(1) created a substantial risk of death or serious bodily injury and was part of a course of conduct, the offense constitutes a felony of the second degree.
    (2) The grading of an offense under this section shall be increased one grade if, at the time of the commission of the offense, the child was under six years of age.

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The above listed information does not include the entire crimes code, annotations, amendments or any recent changes that may be relevant. The information provided is for informational purposes only and may not reflect the most current legal developments. These materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. It is intended solely for informational purposes.

Michael D. DiCindio, Esq. is a West Chester criminal defense lawyer and personal injury attorney who represents individuals accused of crimes or injured by the negligence of others throughout all of Chester County, including West Chester, Phoenixville, Malvern, Coatesville, Paoli, Downingtown, Tredyffrin, West Goshen, Honey Brook, Oxford, Devon, Pottstown, Chesterbrook, Parkesburg, Kennett Square, and Avondale