All You Need To Know About DUI In Pennsylvania


In Pennsylvania, an individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.  The law also prohibits anyone from driving, operating or being in actual physical control of the movement of a vehicle if the alcohol concentration of the individual’s blood or breath is at least 0.10% (unless it is a minor in which case the alcohol concentration is at least 0.02%).


While every DUI case has its own unique issues and set of facts, a typical DUI case begins with a person being pulled over by the police.  The police officer will ask for the driver’s license, registration, and proof of insurance while carefully monitoring the driver’s mannerisms and behavior.  The driver may be asked to submit to field sobriety tests.  If the officer has probable cause, the officer will place the driver under arrest for DUI.  The driver is taken into custody, processed, fingerprinted, asked to submit to an official blood alcohol content (BAC) test, and released a few hours later or the next morning.


An arrest for DUI is typically a “warrantless” arrest, meaning that the police are not required to obtain a warrant prior to detaining you.  All that is needed is “probable cause”, which is a logical inference, supported by facts and circumstances, that a crime has been, or is being, committed.  In DUI cases, this is typically established through subjective findings (e.g. your behavior), the smell of alcohol, incoherent or slurred speech, blood-shot eyes, field sobriety tests and preliminary breath tests (PBT).


One key element to any DUI arrest is that an individual must be in “actual physical control of the movement of a vehicle”.  There are many pivotal Pennsylvania DUI cases which discuss this element.  Generally, one must look to the “totality of the circumstances” when determining whether an individual is in actual physical control of the movement of vehicle.  Circumstances to be considered include the location of the vehicle, where the individual was located with respect to the vehicle, whether the engine was running, whether the keys were in the ignition, and any other evidence that indicates that an individual was driving the vehicle immediately prior to the police arriving.  For example, a strong argument can be made that an individual who was observed sitting in the driver’s seat of a car, with the keys in hand, and then getting out to open the trunk, is not in “actual physical control of the movement of the vehicle” if it can be shown that the car was parked, had a flat tire and a broken rim, the engine was not running, and the headlights were off.  This argument may be weaker if the circumstances show that an individual was in the driver’s seat, parked in an alley after pulling over with the engine running.

dui pa actual physical control


There are three situations that allow the police to make a valid vehicle stop for DUI in Pennsylvania.  If the stop is unlawful, then the evidence obtained by the police following the vehicle stop will likely be suppressed by the Judge before trial, meaning the evidence will not be admitted against the accused.

  1. DUI Checkpoint.  DUI checkpoints are stationary roadblocks conducted by the police.  A checkpoint allows the police to make a stop for the purpose of investigating whether a person is driving under the influence of alcohol or drugs.  In 1990, the U.S. Supreme Court held that a stop resulting from a DUI checkpoint does not violate the protections against illegal searches and seizures under the U.S. Constitution.  The Court determined that checkpoints are justified based on the public interest in reducing DUI incidents.  Pennsylvania allows the use of checkpoints so long as certain conditions are met.  To determine whether a checkpoint is lawful, there are some factors to consider:
        • the determination of which vehicles to stop cannot be based on the personal discretion of the police officer (e.g. the stops must be uniform such as every third car)
        • the stop must be sufficiently brief
        • the location of the checkpoint must be based on appropriate evidence and statistics and must be publicly announced prior to being set up (online notice is enough)
        • the DUI checkpoint must be well-marked and stationary.

    If a DUI checkpoint is determined to be unlawful, the evidence obtained during and after the stop can be suppressed.

  2. Reasonable Suspicion.  Pennsylvania law permits the police to make a valid stop when there is a “reasonable suspicion” that a driver is under the influence of alcohol or drugs.  A “reasonable suspicion” is when a police officer, through his or her training and experience, uses facts and circumstances to determine that the behavior justifies a stop.  In other words, a reasonable suspicion requires more than just a hunch. For example, erratically operating a motor vehicle in a dangerous fashion or an illegal U-turn may be enough to justify a stop.  Circumstances such as loud music, the style of the car, or the driver’s physical appearance are circumstances that would likely not result in a lawful stop.  There is also a distinction between a “mere encounter” and a stop that requires a reasonable suspicion.  If an individual is already stopped on the side of the road, and a police officer pulls over to see if the individual needs assistance, then the officer does not need to have reasonable suspicion to approach the individual.   

  3. Vehicle Code Violation.  Police may also stop a vehicle for specific violations of the Pennsylvania Motor Vehicle Code such as speeding, running a red light, or driving the wrong direction on a one-way street, as well as violations unrelated to the driver’s ability to drive, such as crooked headlights, expired registration tags, or a broken taillight.



After the police make a vehicle stop, an arrest can only occur if the police have probable cause.  Establishing probable cause to make a DUI arrest requires a higher standard of proof compared to the reasonable suspicion standard.  Police must have probable cause to make an arrest and to conduct a search of a person or a person’s property incident to that arrest.  In the DUI context, probable cause can exist if the driver’s mannerisms are consistent with intoxication, the smell of alcohol exists on the person or in the vehicle, the driver has slurred speech and other subjective findings.  In addition to subjective findings, the officer can use other circumstances to justify probable cause including open containers in the vehicle; an admission by the driver that he or she was drinking alcohol; or field sobriety tests such as the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test, and the One-Leg Stand Test.  The officer may also ask the driver to take a preliminary breath test, that although not admissible in court, can provide the officer with an indication of the presence of alcohol in a person.


When the officer believes he or she has probable cause that the driver is under the influence of alcohol or drugs, the officer will make the arrest.  An arrest is defined as “any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.”  Essentially, an arrest occurs when a “reasonable person” would believe that he or she was not free to leave under the circumstances.


Most Montgomery County, PA DUI offenses result in warrantless arrests and release from custody without preliminary arraignment.  Soon after the arrest, a criminal complaint, summons and affidavit of probable cause are filed and served on the defendant.  The summons is a directive to appear at a preliminary hearing, which is to be held not less than 20 days from the mail date of the summons unless other arrangements have been made.  The summons will notify the defendant of the date, time, and place of the preliminary hearing.

A preliminary hearing is not a trial.  The purpose of the preliminary hearing is to protect an individual’s right against unlawful arrest and detention.  Preliminary hearings for Montgomery County, PA DUI cases take place in the appropriate Magisterial District Court.  At the preliminary hearing, the Commonwealth bears the burden of establishing a prima facia case that a crime has been committed and that the accused is probably the one who committed it.  If the prosecution fails to prove a prima facie case, the defendant will be discharged.  If the prosecution successfully meets its burden, the case will be transferred to the Montgomery County Court of Common Pleas and scheduled for trial.

After the preliminary hearing, a formal arraignment is scheduled.  The defendant often waives the arraignment at the advice of counsel.  After the arraignment, DUI lawyers will make a discovery request to the district attorney’s office.  Upon receipt of the discovery, the DUI lawyer and client will discuss an appropriate resolution.  Resolution of a DUI case may include ARD, plea, or trial. 

When a case proceeds to trial, evidence is presented, including scientific tests, blood tests, and witness testimony.  After the evidence is presented, the court will determine guilt or innocence.  The Pennsylvania Rules of Criminal Procedure requires that trial for an offender who is incarcerated commence within 180 days from the filing of the criminal complaint.  If the offender is not incarcerated, the Rules require that trial commence within 365 days from the filing of the criminal complaint.


There are many issues and circumstances an experienced DUI lawyer will analyze in preparing a DUI defense for the client.  Generally, the DUI lawyer will consider the following questions to determine how to best prepare a person’s case: 

  1. Was there a valid vehicle stop? 
  2. Was the accused in actual physical control of the vehicle?
  3. Did the officer have probable cause to make the arrest? 
  4. Were the breath or chemical tests properly administered? 
  5. Were the breath or chemical testing equipment properly calibrated, tested, etc.?


All Pennsylvania licensed drivers are subject to the Implied Consent Law.  The Implied Consent Law applies when a person receives a Pennsylvania drivers’ license.  Receipt of a driver’s license establishes an agreement that any PA driver must submit to BAC testing if asked by law enforcement.  If a person refuses to take a breath, blood or urine test, then the Pennsylvania Department of Transportation (PennDOT) will automatically suspend the driver’s operating privileges for one (1) year.  This suspension is in addition to a suspension that may be imposed for a conviction or Accelerated Rehabilitative Disposition (ARD) caused by a DUI.  Violation of the Implied Consent Law is an administrative issue, separate and apart from the DUI case, which is a criminal issue.  As such, the outcome of a DUI case, even if a person is adjudged not guilty, will not impact PennDOT’s decision to suspend a license for violation of the Implied Consent Law. 


The Accelerated Rehabilitative Disposition (ARD) Program is a special pretrial intervention program in Pennsylvania for nonviolent offenders including those persons who are charged with a first offense DUI. This is a unique program for individuals who have no prior criminal convictions or prior ARD dispositions within ten years prior to the arrest. The purpose of the ARD program is for the prompt disposition of charges without the need for court proceedings.  If the applicant to the ARD program successfully completes the requirements established by the court, the judge in the case can, upon petition, expunge the record of the offense.  Generally, the ARD program involves the following:


In Pennsylvania, another potential alternative for resolution of a DUI charge and to avoid conviction is the Montgomery County Drug Treatment Court.  The Drug Treatment Court’s mission is to provide intensive treatment and education for individuals who may be suffering from drug and alcohol addiction.  This option can result in reduced or no jail time and serves as a rehabilitative path towards recovery as an alternative to serious punishment.


The Martin Law Firm, P.C. is a DUI defense law firm located in Blue Bell, PA.  We represent first time and multiple DUI offenders.  Our goal is to analyze your case and advise you on a strategy that will result in the best possible outcome for you.  All cases are different and that is why we strive to give your case the attention it needs.  Please call us today for a free case evaluation at 215-646-3980.

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