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Welcome back to the Now We Defend podcast. Today we actually have a little bit of a change in the studio. We’ve been working pretty hard on it. You guys have probably noticed in the different episodes we’ve done, the changes we’ve made, and we’re still doing some tweaks and having some fun with it. So again, I got Tim and Justin here with me today.
00:00:37:02 – 00:01:01:20
We got a really fun topic, but before I get into that, I wanted to thank everybody who has responded to our podcast, has liked it, has subscribed to it. We’ve gotten a really a lot of of great feedback, and it’s actually helped us change some things and come up with some different ideas of things. We can do better because, you know, we’re brand new to this and we’ve been having a ton of fun with it, and we hope you guys have been enjoying it.
00:01:01:20 – 00:01:17:08
But, you know, there’s still tweaks. We got to work out and we’re going to keep doing that today. We have a really fun topic to talk about, and when I say fun, I don’t mean fun in the sense of when it happens to you. It’s fun. I mean fun in the sense that this is really a major focus of what we do.
00:01:17:11 – 00:01:40:29
Obviously here at Kearney Law, you know, as I’ve said before, we are three former prosecutors. We are now defense attorneys here in York, Pennsylvania. We go to multiple counties Adams County, Dauphin County, Lancaster County, Cumberland County, pretty much south central Pennsylvania is our focus. A lot of what we do, obviously, is criminal law. In fact, all of what we do is criminal defense.
00:01:41:06 – 00:02:11:17
But a lot of the criminal defense is DUIs. And I think that’s just because DUIs touch a lot of people’s lives, right? It’s anybody from any walk of life. It doesn’t matter who you are. It might touch your life. And there’s so much information to unpack about these DUIs that we want to impart upon you and just anybody that’s willing and wanting to listen to our podcast, because we get questions all the time from people who know us, who love us, who are our family members.
00:02:11:17 – 00:02:32:16
If I ever get stopped for a DUI, what should I do? What should I know? How should I act? And these are the types of things that it is really good to know before you’re sitting in that driver’s seat in a vehicle, stop where you’re suspected potentially of being DUI. And I also want to be clear it does not mean you’re a bad person.
00:02:32:17 – 00:02:55:13
Okay, obviously, some things we deal with in criminal law and criminal defense do involve very awful, horrible things. And DUIs can and some scenarios be awful and horrible results. People can get hurt, but most times, probably more than not, it’s just, you know, your standard, I got stopped or maybe I got in a single vehicle accident or something like that, and the police responded.
00:02:55:13 – 00:03:16:28
And how do I act? What should I do? But before we unpack that, I want to start by talking a little bit about the types of DUIs we in Pennsylvania. Under Pennsylvania law, there are multiple different ways you can be charged with DUI. You know, alcohol is the one I think most people think of when they hear about a DUI.
00:03:16:29 – 00:03:41:19
But more times than not, now we’re actually seeing a lot of marijuana based DUIs, especially in Pennsylvania. How marijuana is now, at least through a medical marijuana card, used pretty widely and not fully legalized, but at least medically legalized. So we’re seeing a lot of DUIs for that, too. And we’re going to unpack all of that. So what I’m going to do to begin is Justin or Tim, I’ll do Tim first.
00:03:41:20 – 00:04:05:06
We’ll kick it over to you. I’d like you to tell us a little bit about the types of DUIs, like what is the different types? What do they mean? How can we find ourselves in this situation? Yeah. So DUI is in our system are kind of complicated because if you Google it, like you’ll see some really imposing looking charts and stuff that break down all the different kinds of DUIs.
00:04:05:08 – 00:04:28:00
But to start to keep it simple, there’s really two different types of DUIs. And then we could break it down even further. But those two DUIs I generally would tell people are per se, DUI offenses. And that means that essentially it’s an automatic DUI. If the Commonwealth can meet the elements of the offense to improve those beyond reasonable doubt, it’s a DUI.
00:04:28:01 – 00:04:44:19
They don’t have to prove that you were impaired. They don’t have to prove that your driving was bad or that you were inebriated or something like that. They only have to prove that you had something in your system, or that you had a certain amount of something in your system. Right. So and I think that’s a great way to describe it.
00:04:44:20 – 00:05:06:11
One of the things that I always tell my clients, who not a lot of people realize this when they come to meet with us, and they’ll sit down in the chair and they’ll go, well, how do they know I was drunk? Or how do they know I was high end? What? Alcohol was three seven, right. You know. Well, but beyond that, I tell them, unfortunately, you know, especially in the situation like most where there’s a blood result, right.
00:05:06:13 – 00:05:28:16
It actually doesn’t matter if they can prove whether or not you were high or whether or not you were drunk. It really just comes down to, like you said, it’s per se. There’s three elements. Were you driving? Were you on a public roadway and did you have X in your system. And X in this case of course would be alcohol, drugs, combination of the drugs and alcohol.
00:05:28:18 – 00:05:47:05
And that’s the elements. They don’t actually have to prove to a judge or jury that you are actually impaired in that scenario. Right? And I mean, I was being kind of facetious to say that, like, how do they know you’re impaired because you’re alcohol was three seven. But I mean, those those blood alcohol levels in Pennsylvania exist because they are based off of medical research and scientific data.
00:05:47:05 – 00:06:14:06
And the correlation that exists between the amount of alcohol in your blood and the level of impairment. And so that’s why those per se offenses are the way they are structured, the way they are. And a lot of other states have similar kinds of offenses like North Carolina and some other places they have 0.16 is a triggering for like an aggravated DUI, because it’s generally accepted that if your blood alcohol level is over 0.16, you’re pretty impaired at that point.
00:06:14:08 – 00:06:33:25
Yeah. And, you know, just to give a baseline here in Pennsylvania, like I think a lot of states, the legal limit for alcohol in your blood is 0.08 when you’re over the age of 21, if you’re under the age of 21, the limit is 0.02. Now, to codify this, it’s hard to give. Okay. That means two beers or one beer.
00:06:33:26 – 00:07:01:28
One shot. It’s hard to say exactly because everybody’s body type is different. Everybody is metabolizes alcohol differently. And what that really means for the individual is different each time. But a general idea of it, it doesn’t take a hell of a lot to get to .08. I mean, Justin, what do you think? Like you’ve seen a lot of these DUI cases when somebody comes in and says, and, you know, I always tell them in meetings, I’m sure you do two like and you ask them, well, how much did you actually have to drink before you drive?
00:07:01:29 – 00:07:24:00
And they tell you. And then I think sometimes in their mind they’re thinking, oh, well, I’m probably not over the legal limit, but then you actually have to have that conversation with them. I mean, what you in your experience with that? Yeah, I think one of the main things that is a big misconception is, again, like you said, you know, wandering two drinks, three drinks really doesn’t matter how many drinks you had.
00:07:24:01 – 00:07:49:10
It could depend on the day. How much did you have to eat that day? Have you are you hydrated? Are you a bigger guy, a smaller woman, a bigger woman, a smaller guy? It really doesn’t matter. People will drink, you know, 2 or 3 beers. Years and now a days. There’s so many different types of beers and liquors that the alcohol content in those drinks varies greatly.
00:07:49:10 – 00:08:12:26
So somebody that drinks two Bud Lights, it’s going to be a lot different than somebody that goes and drinks to 10% IPAs. So it really depends on a number of things. Yeah. And the IPAs are one I see a lot because I mean, let’s be honest, they’re good. I think a lot of people enjoy them. They’re frequently utilized, and I don’t think a lot of people realize the amount of alcohol that is in an IP, a beer, right?
00:08:12:28 – 00:08:38:07
We think of like Miller Lite, Bud Light, these Coors Light, these different beers that might be like your normal kind of like at a barbecue type of like beer. But then, you know, holiday parties and other types of events, or people are actually serving these IPAs and the alcohol levels that people are getting to very quickly with even 1 or 2 of these is sometimes very quickly above a 0.16, which is actually the highest here.
00:08:38:08 – 00:09:08:29
Right. So, Tim, back to you when we get to, you know, we’re dealing with somebody who’s coming in and they’re saying, hey, I drank alcohol and we’re having that conversation about, you know, hey, you’re probably going to be above a .18, or maybe we actually already have the blood result, because let’s keep in mind, sometimes when people come see us early, which we love, by the way, please get to us as early as possible, because we’re going to unpack later how there’s a number of things with DUIs that you need to and should be doing proactively very, very early on.
00:09:08:29 – 00:09:25:20
And that will lead to a far better result if you do. But before we get to that, when we’re dealing with, you know, somebody coming in and maybe we do know their back, maybe we don’t, but we’re having that conversation with them. Then we start breaking it down to, okay, what about is there anything else going to be in your system?
00:09:25:20 – 00:09:44:10
And I’ll tell you, seven, eight times out of ten people say, well, I do also use weed or I sometimes I take a dummy at night to help me sleep. And we have to kind of get into that conversation of drugs and marijuana and how that can affect the system. Or maybe I also have a medical card, something like that.
00:09:44:10 – 00:10:04:02
So I want you to tell us more about kind of the different tier levels. Yeah. And also how drugs play into tier levels if you could. So so and again these are the first category of DUIs sort of per say offenses. So the tears break down. We have what is called the legal limit. And that’s kind of a misconception that we’ll talk about a little bit later I think.
00:10:04:02 – 00:10:28:05
But .082.99 is like the first bracket of alcohol DUIs. That’s .099 did it. What did I say? 0.99. Did I say point nine? Yeah, that would be like yeah, sorry. Yeah. That’s that’d be yeah, that’d be a whole other level. So point zero 8 to 0.099. Correct. If I’m saying that right. That’s the first level lowest level of impairment.
00:10:28:07 – 00:10:51:24
And then from there you’ve got hot what we call high tier which is 0.102.159. Yes. And then you’ve got highest tier, which would be anything over 0.16. And it also includes any amount of any drug, any controlled substance. And there’s some caveats that mostly it’s schedule one and schedule two non prescribed. And there’s no limit beyond that. No limit.
00:10:51:24 – 00:11:15:02
Right. So 0.16 sans drugs 0.16 or higher. The sky’s the limit. You’re tier three right okay. Highest what they call highest tier. But then you said also with drugs. So drugs just to make this crystal clear, any drug prescription for otherwise. And this is another thing we need to unpack is prescription medication because I see that a lot too.
00:11:15:04 – 00:11:44:29
In fact, I see DUIs with just prescription medications. Right. And that’s that’s actually, I think, hard for the person to hear for the first time when they’re in their meeting with us. Oh, wait, I’m going to be DUI for something I’ve been taking for years that my doctor literally prescribes to me. Yeah, you actually can. And sometimes you actually see situations where the person got rear ended and they’re not even at fault in in a DUI in a crash, and the cops show up because it was an accident and boom, the person looks a little woozy.
00:11:45:00 – 00:12:06:14
They get their blood and they have prescription medications only in their system, which they’re legally prescribed. And here’s your DUI. That’s different, though, because that now we are starting to get into the other kind of DUI, which is not per se, right. And I think I may have said just scheduled to for nonmedical prescribed. I think that that rule also does apply to schedule three.
00:12:06:16 – 00:12:29:14
If it’s not prescribed to you, then it is a per se to UI, any amount of it for schedule two and schedule three if you’re not prescribed, it is an automatic DUI and schedule one. Any amount of that is DUI. So tell me about that a little bit. Let’s talk about that. Walking through that which part when you’re talking about like the the prescription drugs and the drug DUIs and the difference between per se and non perception.
00:12:29:15 – 00:12:59:29
Yeah. So and then this would be the second big sort of like umbrella term for DUIs. We have the per se offenses which we’ve been talking about. And then you’ve got what we call like the general impairment or imperative offenses. And so this is where people kind of have a misconception about the legal limit. You can theoretically. And I mean, I think we’ve probably all seen it I know that I saw it as a prosecutor and I’ve seen it since then too, as a defense attorney, where people are either there is no blood result, so there is no blood.
00:12:59:29 – 00:13:29:11
We don’t know what their blood alcohol level was. Right. And before you jump into that, what’s the scenarios where there’s no blood, right. That can come in a few ways. So tell us that. How could that happen. Well, so I mean, it could be anything from the person refuses to give blood down to a mistake being made by the phlebotomist, which I’ve seen before as well, where they may take you to get blood, you submit to the blood draw, and they sticky a bunch of times, but they can’t get blood right.
00:13:29:12 – 00:13:50:11
And and there is. So no sample is obtained. People have medical episodes to wear that prevents them from sometimes from getting a sample. It could be anything that stops them from getting a sample. Yeah, yeah. I mean, Justin, as far as that goes, I mean, I know you’ve seen some cases where they don’t get blood because they literally they try they might try sticking.
00:13:50:11 – 00:14:14:20
Yeah. They’re like stab you in the arm and they can’t get it. You’ve seen the refusals things like that. But the refusal versus I tried to give blood, I consented to give blood and I couldn’t give blood is actually a whole different tier. Absolutely. Yeah. So tell me about that. Tell me about the the difference between a refusal DUI and a DUI where they tried to get blood but could not.
00:14:14:22 – 00:14:42:23
And either in either scenario they don’t have blood. Absolutely. So we’ll start with the refusal. As Tim said, you know, people refuse for all types of reasons. If there’s a refusal, excuse me. You can potentially end up in what’s called a general impairment. Like Tim said, the lowest tier, if it’s if they’re only suspecting you of having alcohol in your system especially we see that a lot for first offense refusals, second offense refusals.
00:14:42:25 – 00:15:03:02
A lot of times they’re going to get a search warrant for your blood. And if that search warrant is granted and you then refuse again, it will jump you up to the highest tier. And that’s whether you had or excuse me, whether they suspected you of having alcohol or controlled substance with that. Warren, if you refuse, again, it’s going to be the highest tier and you’re also going to be receiving an extra charge.
00:15:03:04 – 00:15:29:05
Yeah. And let me jump in there, because this is a whole other can of worms to unpack. Now, when we talk about the refusal, implied consent and what that means in Pennsylvania, and then also when they get a warrant after you refuse and then the defendant is presented with a warrant, which is a court order from a judge literally saying, you need to give blood, I’m ordering you to give blood.
00:15:29:05 – 00:15:52:26
And people sometimes refuse that to which is its own crime, right, called obstruction of justice. So these are things that when we talked about earlier, being aware of the situation and the process that you are in, when you are in it and why you’re probably listening to this podcast is so important. So even though you might be impaired, maybe you’re not.
00:15:52:28 – 00:16:13:24
You’re making the right decision in real time. So you’re not sitting there in total panic mode. And then you come into our office a day or two later and go, dang, I wish I wouldn’t have refused that blood test. Now that I know what I know, because you’re telling it to me. We’re telling it to you now. I hope you’re hearing this and thinking about this as you’re generally operating in life.
00:16:13:24 – 00:16:33:13
So I want you to talk, Justin, about that. Talk to me about the refusal. Talk to me about the warrant process and why and when that happens and what it means. And before we get into that, tell me about implied consent in Pennsylvania and what that means. That’s a weird kind of verb to use. Implied consent, you know.
00:16:33:14 – 00:17:03:07
What does that mean? Absolutely. Simply consent in Pennsylvania. I’m sure it’s like this in a number of other states. Essentially, when you receive or gain your driver’s license, it is implied that if you are pulled over for a suspected DUI, that you will consent to a blood draw. Driving is a privilege. It’s not a right. So there are certain civil penalties that come with refusals and, you know, a number of other traffic situations that they can take your license for.
00:17:03:07 – 00:17:40:28
And this doesn’t even that doesn’t even if you’re licensed only in Pennsylvania. Correct. If you operate on the roadway in Pennsylvania, essentially a privilege that’s given to you by Pennsylvania, who maintains the roads, and you can be licensed in any other state or country. And if you’re operating on the roads in Pennsylvania, you are doing that presumably under the law, knowing that you are operating under the implied consent rule, that it is implied that you will consent to a blood draw under suspicion and under request of an officer on a DUI investigation.
00:17:40:28 – 00:18:00:29
That is implied. And a lot of people do not know that. And that’s why we get into people losing their licenses for long periods of time, because they don’t understand that when they refuse. So there are some people too, that are kind of I think they’re a little bit obstinate when we encounter them on this subject. We’ve we’ve seen it where they’re asking like, how can that be the law with implied consent?
00:18:01:00 – 00:18:18:19
How can it be that it’s expected that I give blood that and they’ll try to say things like, well, but that’s like my Fifth Amendment rights are being violated, but your blood is not protected by the Fifth Amendment. It’s it’s the difference between testimonial and non testimonial evidence. You don’t have a Fifth Amendment right to refuse a blood draw.
00:18:18:23 – 00:18:38:22
It’s just like you don’t have a Fifth Amendment right to refuse, like a voice exemplar or a handwriting sample. Those are that’s not you being compelled to testify. Those are things that are non testimonial and you can’t deny those. Right. And how many times have you guys had someone come in and say, you know, I got pulled over for this DUI.
00:18:38:24 – 00:18:57:10
I was asked to give blood and I had talked to some lawyer or somebody that they think, you know, knows the law or whatever. And they told me when I get stopped that I should refuse that, that blood test, it would help me in the actual DUI. And there are some limited circumstances, I guess, where that is true, where it actually could help you.
00:18:57:10 – 00:19:17:29
But if you’re dealing with a first offense DUI, you’ve never had a DUI before, or you haven’t had 1 in 10 years at least, and you’re getting stopped for a DUI when you refuse that blood test, I’m going to tell you point blank you are kind of kicking yourself in the foot. You know, you’re stepping on your own toes, really.
00:19:17:29 – 00:19:39:11
And the reason is, is that comes with an automatic, automatic one year driver’s license suspension under the law that is literally almost impossible to refute. You can appeal anything. But being successful is a whole different story, right? And they actually read this to you when they’re asking you to give blood and something they’re required in Pennsylvania to read to.
00:19:39:11 – 00:19:53:29
You called your implied consent warnings. And a lot of times people don’t remember being read their implied consent ways. How many times have you guys heard people say they never read me that? And then you get the police report or the video and you’re like, well, it’s right there. Yeah. Or you signed it or you find it, so you signed it.
00:19:53:29 – 00:20:11:05
So actually, I’m glad you brought that up to him. I don’t know exactly what it was. I think it was sometime in the last year or to essentially, we all know. Well, I say we all know, but we as lawyers know, about ten years ago, there was a case called Birchfield, which they ended up here in Pennsylvania.
00:20:11:05 – 00:20:29:00
It was a Supreme Court case, US Supreme Court, US Supreme Court. Yeah. And we won’t get into all the details about it. But I had to do with blood draws and, you know, what was allowed and what was not allowed. And so the DL 26 form was initially called the DL 26. And Justin, what is a DL 26?
00:20:29:06 – 00:20:48:14
I think it’s the first time we’re saying that in this podcast. That is something that if I was not a lawyer, a did criminal defense, that is true. I would have no idea what that is. Absolutely. So there’s a form. It has this code called DL hyphen 26. It’s a PennDOT form. Yes. What is that for? Yes. So I think I’m not sure about this actually, but I assume DL stands for driver’s license form.
00:20:48:16 – 00:21:04:13
Yeah, I actually don’t know that either. Like pretty much every PennDOT form has I think is a DL and then a number. Yeah. So the DL 26, when it initially first came out, it went over essentially certain things that the police had to redo. When it comes to a blood draw, to be honest, I’m blanking on what it says.
00:21:04:14 – 00:21:24:04
Yeah. But it’s pretty much it’s pretty much your warnings that basically say, you know, we are requesting under a DUI investigation that you will provide us a blood sample under the implied consent law in Pennsylvania. If you refuse a blood test, you are going to lose your license for a year. You could potentially receive enhanced penalties, things like that.
00:21:24:04 – 00:21:41:04
It also says you have no right to speak to an attorney for making. That’s one of the warnings on there. So you do not have a right to ask questions, which I have clients and I’ve seen it lots of times, as I’m sure you have, where someone is asking, just kind of even in good faith, they may be asking a question.
00:21:41:05 – 00:22:02:04
Right? That’s deemed refusal. I mean, if the officer really just doesn’t want to put up with it, they can be done at that point. You either when they read the form, it’s either accept or deny. Those are your options, right. And the refusal, the act of actually refusing isn’t just saying no. It is a lot of other things too.
00:22:02:06 – 00:22:24:20
If you pretty much anything other than unequivocal yes, unequivocal consent is considered refusal. I want to talk to my lawyer. Refusal? Yep. I know the form. Yeah. I’d like to phone a friend. Refusal. You know I won’t sign the form or I can’t read the form. Or let me look closer and hand it over, and I’m going to go through it ten times and delay this refusal.
00:22:24:22 – 00:22:53:18
Yeah, these are all considered refusals. So I get so many people come see me and say, I didn’t actually refuse. And then I look at the actual facts of it and I’m like, and I have to have that conversation about anything other than, like you said, just in an unequivocal consent is a refusal. And depending on the police officer you’re dealing with, I will say in York County and some of the other counties where we deal with these police officers regularly, most of them are decent people, and they will actually try to give a little bit of leeway there.
00:22:53:18 – 00:23:08:18
They’re not just going to say, are you consenting? No. In the race, they’ll actually try to like be like, okay, listen, like, you know, have a little bit of a conversation. And then if it continues and continues, okay, that’s going to be a refusal. Now people remember. Yeah, they remember I was just trying to ask a question. Right.
00:23:08:19 – 00:23:26:12
But then when we see the body camera, the booking, the booking center footage, and you can see that it’s like the officer and the person are going around and around for a while. Yeah. And then we end up at a refusal. Yeah. Right. I actually had a case as a prosecutor. It was one of the first cases that I got assigned when I first went to the DA’s office.
00:23:26:13 – 00:24:01:14
It was the first fence DUI, and the officer actually shot herself in the foot. And she was so forgiving with this woman trying to help her understand what she was requesting. She must have asked her 15, 20 times about, you know, getting blood or giving blood. And it actually ended up backfiring because when we did a bench trial or right before a bench trial, we had a suppression motion that was followed by a defense to essentially exclude the blood draw for coercion.
00:24:01:14 – 00:24:25:00
And it worked. And so, I mean, there was a number of other telling signs that this woman was intoxicated. But yeah, I mean, some officers will definitely give you a number of opportunities to comply because, you know, they understand what what they’re asking and that people just don’t generally deal with that or hear that every day, especially if people are in toxic.
00:24:25:02 – 00:24:55:22
Yeah. And they know they may be dealing with a drunk person who doesn’t understand. There’s that too. And sometimes highly drunk, right or high or confused, you know, and every once in a while you have the coupled I’m hi, I’m drunk. And I’m also having a little bit of a medical episode, you know. Yeah. Situation. So and that’s another thing that, you know, bringing that up that I see sometimes is people say, well, how is the law allow a drunk person to control what’s going on, whether they’re consenting or not, because they’re not going to understand because they’re impaired.
00:24:55:23 – 00:25:12:25
I’ve heard that a few times. Yes. Month or two. It’s a conversation we have to have a lot. And it’s it’s kind of a double edged sword because on one hand you’re saying I’m drunk. So that’s why I didn’t understand the forum. Well, then you’re kind of admitting to being drunk. And the other hand, you’re saying, well, how did I understand the form?
00:25:12:25 – 00:25:30:00
That’s why the law doesn’t account for that. And it’s more black and white because it would be too many scenarios. It would be too much to to deal with, to try to figure every one of those individual situations out. So that’s why it is it’s not gray. It’s black and white. Right. So again, I’m going to move off of this topic.
00:25:30:00 – 00:25:53:17
But the the the summary here for the whole refusal thing, anything other than an unequivocal yes is a refusal. Yes. Be careful here because. So your driver’s license is so important to how you live, how you work, getting your kids around, whatever it might be. And there is almost no going back from that refusal and losing your license.
00:25:53:18 – 00:26:12:19
I have so almost all my clients that do refuse the day they come into my office, and I explained this all to them, they literally are wishing they could go back in time and just not refuse, especially if they would have been eligible. I mean, yeah, booked the license back two months later. Let us fix this for your, like his accelerated rehabilitative disposition.
00:26:12:19 – 00:26:42:05
It’s a program for first time offenders. It cuts the license suspension down from 12 months to two months. Right. So, like you, you wouldn’t have needed a 12 month suspension if you had just submitted to the blood draw. We’ve said there are some tactical reasons why you may refuse a blood draw. I mean, you know, if you’re a third or subsequent offender and you refuse the blood draw and the officer is lazy and doesn’t get a search warrant, well, your third offense, DUI, is going to be a misdemeanor of the second degree as opposed to a felony of the third degree.
00:26:42:10 – 00:26:59:08
But you’re banking on an officer not getting a search warrant at that point. And in York County and in some of the surrounding counties required it’s protocol. Yeah, yeah, they are. Absolutely. If you are a second or third time offender, they are taking that next step. They are getting that warrant court order from a judge, and they are going to serve you with that.
00:26:59:08 – 00:27:22:13
And that’s kind of where I wanted to move to next. And I’m glad you a good segue there. So let’s talk a little bit about that whole warrant thing. First of all, warrant is a type of word that could mean a few different things, right? There’s search warrants, which is what we’re going to talk about here. There is arrest warrants, which is where a police officer would have a warrant to come arrest you or a constable would take you into custody.
00:27:22:16 – 00:27:54:16
But really, what we’re talking about warrants here is a search warrant to kind of search your body and and withdraw your blood. And again, in York County, Pennsylvania, and I think a lot of other counties are moving to this direction, partially because the law has changed recently. That has allowed for the enhancement of penalties. In the event that you are served with a search warrant for your blood and refuse, if that scenario happens, right, you refuse on apply consent, they then get a search warrant from a judge.
00:27:54:16 – 00:28:15:10
That court orders you give blood and then you refuse. Again, under that search warrant, you are automatically then put in the highest tier DUI and in least in York County, Pennsylvania. You are going to get charged with the crime of obstruction of justice, which is a whole other mess that you don’t want to have on your criminal record or on your charges that you have to deal with and fight.
00:28:15:11 – 00:28:32:16
So let’s talk about that a little bit, Tim. Tell me about that search warrant. Like what is it that the police are doing there? And sometimes these DUIs happen late at night. Like, how are they getting these from judges in the middle of the night? Yeah. So just like with any other search warrant, the burden that they have to cross is probable cause.
00:28:32:17 – 00:28:53:22
They have to show that it’s reasonable that there will be evidence of criminal activity in the place to be searched, essentially. I mean, that’s a very rough statement of the standard. But so what they’re doing is they’re applying for a search warrant and they’re they’re laying out everything that they’ve seen up to that point. If there’s been bad driving, they’re going to describe the driving.
00:28:53:22 – 00:29:24:05
They’re going to describe the interaction with the driver. When they initiate the traffic stop, they’re going to describe the investigation into the DUI, whether they did say whether they did a ride. What does that mean to what’s SFTS standardized ride field sobriety testing. And I think a ride stands for Advanced Roadside Impairment Detection, detection and enforcement. Since kind of a field sobriety testing beyond field sobriety tests, sometimes when they’re looking for drugs or field sobriety testing generally is tailored towards alcohol.
00:29:24:07 – 00:29:48:10
Like there are certain parts of the standardized field sobriety tests that really wouldn’t apply to certain drugs, like for GM, which is horizontal gaze. And it’s the first test where they’re doing the pen thing. They’re following a stimulus. Usually it’s a light. If you’re just impaired on marijuana, there will be no hen. So they will do another test where they may be looking for vertical gaze nystagmus, which you can have.
00:29:48:13 – 00:30:11:18
They may be looking for other things. And a ride will try to detect drug impairment more specifically. Right. Basically the bottom line is there’s different tests they can do. There’s really three standard field sobriety tests. Right. You got your walk and turn test. That’s the one where you walk a line. You do a pivot and you have to take, you know, certain type of steps the right way that you’re instructed to.
00:30:11:20 – 00:30:30:17
You have the standard, what I call the one leg test. Yeah. When you count for a certain period of time and have to maintain balance. And and then there’s also the horizontal gaze nystagmus test, which is the test that you were referencing, where you’re following a stimulus with your eyes and can take you out to maximum deviation. You have to hold that.
00:30:30:18 – 00:30:48:28
I mean, there’s a whole bunch that the bottom line with field sobriety test is, first of all, field sobriety testing is not pass fail. That is another thing I hear in almost every DUI meeting I have with a client. But I passed my field sobriety test. Well, you didn’t because it’s not pass fail, but you’re also didn’t fail it.
00:30:49:05 – 00:31:09:18
What the police are looking for in these field sobriety tests are clues of impairment. And if those clues exist, of which each test has many, that’s how they’re deciding whether or not to then say, let’s take the next step and go get your blood, because we suspect your DUI, because placing you under arrest is the same standard for the search warrants probable cause.
00:31:09:18 – 00:31:27:25
So they have to have facts that give rise to this idea that they they have a reason to believe that a crime has been committed and that you’re the person who did it and, and that they can arrest you and that they’re going to find evidence of that crime in your blood when they’re getting a search warrant. So they’re going to put all that stuff in the search warrant.
00:31:27:26 – 00:31:47:20
What the SFS is, what that was, how you did on those. They’re going to put in there that they took you for blood. They read the DL 26 form and they’re going to put in there that you refused and that they’re requesting a warrant. And that generally because many people who are DUI or DUI at nighttime, that’s generally after hours a lot of times.
00:31:47:20 – 00:32:07:07
So it will go to what we’ve talked about before, a duty judge and a magistrate who’s on duty, and they will review the warrant and sign it if they agree with it, and then they will come back and present that warrant to you. And there is a standard here like this isn’t just like a cop calls a judge in the middle of night and says, hey, I want a warrant.
00:32:07:10 – 00:32:29:12
That’s not how this works. The cop, as Tim was saying, has to actually articulate reasonable grounds to request that warrant be issued by a judge, and a judge has to make that determination that that actually exists and that it is appropriate to issue the warrant. So there are standards here that need to be met. And I know these judges hate getting these calls in the middle of the night.
00:32:29:12 – 00:32:54:05
I talk to them all the time about this and they, you know, but that’s part of their job. They kind of rotate. Officers hate doing it, too. And it does make it hard to negotiate. I mean, if you refuse the blood draw and you force an officer into doing this, they have had to escalate. And especially if you’ve been contentious and confrontational with them for like most of the stop, it sometimes does make our job hard to then negotiate because you may have an officer then that wants a pound of flesh out of you.
00:32:54:06 – 00:33:28:17
Yeah. And you know, Justin, I know we’ve talked about this, but like, just that, that level of like being a decent human being goes a long, long way. Absolutely. And like we’ve talked about before in the previous episodes, you know, being polite and compliant are very different than I think a lot of people sometimes that do get contentious and will fight with the officers or say, you know, you’re violating my rights, etc. think that if they are compliant, they’re admitting guilt and really what they’re doing.
00:33:28:17 – 00:34:01:04
If you are being compliant and polite one you’re making the officer’s job easier. You’re likely going to get a better result at the end if you were compliant, polite because you know police officers have a job, right? They have to investigate crimes, they do traffic patrol, etc. so by making their daily job harder, like Tim just said, especially in the middle of the night, they have to go get a search warrant, present that to a judge, wake a judge up a judge.
00:34:01:06 – 00:34:18:07
And what could be even worse is if the duty judge that you get that night is your judge, you know, at the prelim and you want to try to resolve something. Maybe they won’t take it. But I think generally just again, being compliant in a decent human being, even though it’s a tough situation that’s really, you know, just the decent thing to do.
00:34:18:08 – 00:34:39:11
Yeah. And there’s there’s an absolute fine line between being a decent human being and not giving up the farm. You know, like you can be a very polite human being. Nice. And that doesn’t mean you’re, like you said, admitting guilt, but it also doesn’t mean that you’re giving up the farm and now you’re screwed and there’s no hope for you and anything like that.
00:34:39:12 – 00:34:59:08
In fact, it’s very quite the opposite, as I think we’ve said in a lot of episodes that we’ve had so far. So the bottom line with these DUIs, when you’re on this vehicle, stop. Don’t be rude. Don’t be kicking and screaming and spitting and cussing and all that stuff. But you also don’t have to give up the farm like you don’t have.
00:34:59:11 – 00:35:20:02
You don’t have to say a lot in these DUI stops. And I know we want to kind of talk about the actual vehicle stop itself, right. And, and how to handle that while being polite and a decent person, but not giving up the farm. So let me pivot to to you, Tim, on that. Tell me a little bit about the stop itself.
00:35:20:02 – 00:35:42:24
If I get stopped, we said this and we’re going to do this in the beginning if I get stopped for DUI, I’ve never been stopped before. What should I do? How do I handle myself best? So, and this is a good time to finally answer the first question you asked me, which was about the other DUI. We’re now talking in theory about other DUIs being in play here, the the general impairment and the imperative.
00:35:42:26 – 00:36:04:15
And for those types of offenses, if there’s no blood or if it’s an unclear blood result or something, they now have to prove that you were impaired. And the standard for alcohol is they have to prove that you were incapable of safely operating a motor vehicle. If it’s a drug, DUI, all it’s a lower threshold. They just have to prove that the drug or combination of drugs impaired your ability to drive.
00:36:04:16 – 00:36:33:13
So for one, it’s you couldn’t operate safely, for the other, it’s your ability was impaired. And so what they’re doing on the stop is they’re looking at you. They’re looking at your behavior. So you talk about normal behavior. Normal behavior is normal behavior. And it’s not evidence of impairment generally. But if you’re the kind of person that you quick pop in a stick of gum or you light a cigarette, the officer is looking at that stuff and they’re going to see these are things that are not normal.
00:36:33:19 – 00:36:49:12
And this could be evidence of impairment. It doesn’t have to be evidence of impairment, but it could be if you’re there stone silent and you’re not answering any questions and you’re white knuckling the steering wheel and you won’t give any of your documents, that’s not what sober people do. The officer is going to look at that and see evidence of impairment.
00:36:49:13 – 00:37:06:25
Don’t roll your window down. And actually if you do that, they actually might break your window. So be careful with that one. But so they do definitely look at how you act. And that’s like you were saying with general impairment, they’re looking at how you act and what, you know, all the things to what are the circumstances.
00:37:06:26 – 00:37:26:14
Right? Odors. Do you smell like alcohol? Can I smell marijuana? How how you’re maybe interacting, how you’re talking? Are you slurring your speech? Those types of things, the belligerent behavior makes them upset and escalates their posture, but it also makes you look impaired. It does. It actually does. And it’s evidence substantively they can bring in and trial and use.
00:37:26:14 – 00:37:52:12
And by the way there’s usually video. Yeah. These most police officers in York County and surrounding counties in Pennsylvania here have body worn cameras. So not only do they have a cruiser camera behind them, but they have a camera literally on their chest that’s like right in your face. Much like these cameras are right in our face that are literally recording everything you’re saying, doing your facial expressions, whether you’re sweating, you know, that type of thing can be seen.
00:37:52:12 – 00:38:12:05
I think a misconception with people, too, with DUIs is going back to what you said, like, oh, I passed the field sobriety tests. And I think a lot of people that don’t do this every day and don’t have the experience that we do with the UIs on, on both sides, you know, prosecution and defense. As soon as the officer spots your vehicle, they are watching you.
00:38:12:06 – 00:38:34:00
They’re not only watching your vehicle and how you’re driving, but I think most people you can see into cars unless they have dark tint. So if you’re making some weird movements, like Tim said, light a cigarette, etc. and then they pull up to your window after they stop you and again, you’re doing all the stuff that’s just not normal behavior, like they’re watching you from the moment they they see you.
00:38:34:05 – 00:38:53:19
It’s not just what they see in STS or what you say. And that driving behavior is also part of what goes to possible impairment, right? Swerving on the roadway, not using turn signals, etc.. Every once in a while we have a DUI where somebody gets pulled over because their tail light is out, and that’s the only reason they got pulled over.
00:38:53:20 – 00:39:13:26
There was no bad driving that was seen. That one is interesting because that one, there’s no proof of impairment in driving. So literally they’re kind of starting with a clean slate when they come up to the window. Now, what I kind of say to people is, hey, you come up to the window, then they start looking at you, smelling, etc..
00:39:13:28 – 00:39:31:06
Okay, now it starts to smell like marijuana or alcohol and the dominoes kind of begin to fall then, but you at least then don’t have the bad driving part of it, and that one is sometimes even more harming, I think, than other stuff. Because if you’re all over the place, I mean, that’s what we all think of when we think of a DUI driver.
00:39:31:08 – 00:39:50:07
And then of course, a vehicle accident. They get to use the fact that you had a vehicle accident against you as well. But yeah, I think, you know, Justin, that’s those are all really, really good points. All right. Well then let’s brass tacks here. Let’s get down to brass tacks. If you are stopped, walk me through how to act just right.
00:39:50:08 – 00:40:08:11
Just lay it out. How should you act? What’s the best way to do it? I think you know, it’s for most people, they’re going to be pretty nervous when. When you get pulled over. I mean, you know, I’ve been an attorney for a little while. And last, last year when I was in the DA’s office still, you know, I got pulled over by by a local officer and it still made me a little bit nervous.
00:40:08:12 – 00:40:28:28
I mean, yeah, my inspection sticker was out. Whoops. It’s definitely. Yeah. And we completely appreciate that being pulled over us too is not fun. It’s out of the norm and you will be absolutely nervous. And I think most police officers, they realize that. Yes. Yeah. You know, they’re not out there trying to bust people that just because they’re nervous there’s not a crime, by the way, for being nervous.
00:40:29:00 – 00:40:52:05
That’s, you know, that’s probably rather obvious. But yeah, I mean, you’re nervous, but this is why we’re telling you this, right? This is why we want to have this conversation. What should I do when I’m nervous, when I’m panicked, when I’m freaking out? Yes. I think the first thing is, you know, most of the time, if you’re stop whatever it’s for, they’re going to ask you for your driver’s license, insurance information and registration.
00:40:52:07 – 00:41:12:12
Most people keep that stuff in their glove box, license in the wallet. Maybe you have it on your phone. I just got everything. I got my license out. I have my registration and my insurance on my phone. I pulled both of those up, rolled my window down, waited for him to come up to my vehicle. And then, you know, they usually introduce themselves what they stopped you for.
00:41:12:14 – 00:41:31:01
He asked for my information and I gave it to him. Yeah. You know, that’s huge. That initial first impression when they walk up to a window can sometimes save the day. Yes, it really can. Roll. Roll all your windows. The windows down is another thing. They say. You have to understand the perspective of yourself and the perspective of that police officer.
00:41:31:01 – 00:41:53:11
And they are already on high alert. Because what we see in society today, police officers are getting hurt, you know, on vehicle stops. So they’re already going to be on high alert coming up to your window. If you can put their mind at ease and make them feel safe, not only are they going to appreciate that, and it’s probably going to go a hell of a lot better for you, but you’re at least already showing him that I’m doing things appropriately.
00:41:53:17 – 00:42:08:19
So maybe I’m not impaired and I’ve done that too. When I’ve been stopped, where I’ve gotten my documents ready before they come up. But there is a fine line there because like depending on how accessible your documents are, you may not want to be moving around and reaching for a ton of stuff. Yeah, absolutely. They’re going to be scary.
00:42:08:19 – 00:42:31:29
There are some yeah, I’ve heard some groups that will say like, don’t don’t do anything until the officer tells you to. So because the officers, when they stop, you are looking to see what you’re doing when you move, like if you’re leaning over the seats, if you’re making a lot of what they call furtive movements, that escalates their posture and you might just be reaching for your license and your insurance stuff, the officer doesn’t know that.
00:42:31:29 – 00:42:57:05
So that can ramp up the temperature of the stock. Yeah, that’s those are great points Tim. All right Justin, back to you, man. So cop, you’ve done everything right up to this point. You’ve rolled your windows down. You got your your documents ready. You’re not smoking a cigarette freshly lit. You didn’t just pop a piece of candy or a gum in your mouth, which obviously is somewhat they view that as masking, you know, possibly masking the odors of something.
00:42:57:07 – 00:43:22:28
Cop walks up to the window. License and registration. You’ve got it ready. And what happens next? How do you handle it? So I think it’s going to depend on the situation. If specific for a DUI, say the officer does suspect that your DUI, you give them your information or documents. And I think one thing to hit on with that, just very briefly, is say you don’t gather any of that prior to the officer approaching, like Tim said, they didn’t ask you for it.
00:43:22:28 – 00:43:43:12
If you’re struggling to find that they’re going to use that as evidence of impairment, yeah, it’s a good idea to prepare for this. Be organized in your car. I organize my own vehicles, documents, but I also organize my wife’s vehicles documents because I want them to be easily accessible for her if she ever gets pulled over. So they should be.
00:43:43:13 – 00:44:07:26
They probably should be in one envelope. Yes. In your glove box. That isn’t full of a lot of garbage. Right on top. Right on top. Yep, that you can just grab open your glove box, grab it and sit there and be ready. Like you were saying, Tim, if you’re rooting through your glove box, that’s called furtive movements. Furtive is a very odd word, but basically what it means is the cops alarms go way up when you start moving around in the car and grabbing things because just being shifty.
00:44:07:28 – 00:44:26:10
Yeah. And what they think is you’re either stashing, hiding or grabbing a firearm or drugs or something like that that you don’t want them to see. So don’t give them that alarm and things will go better. So again, you’re ready to hand your documents to them. And you know, obviously we’re talking about the UIs here. So this is you know they’re suspecting DUI.
00:44:26:12 – 00:44:47:25
They’re starting to question you. Can I just briefly say to that when they ask you for those documents you have to give them, right. Like, I think we take that for granted, but you don’t have a right to not to like to refuse to turn over a license. Right? They don’t play that game either. Again, it’s not it’s not like implied consent, but it’s kind of implied that, well, there’s empowered Pennsylvania to to inspect all that.
00:44:47:26 – 00:45:08:05
I mean, if they really wanted to, they could inspect your van, they could inspect your inspection stickers, they could make sure your vehicles roadworthy. And again, if you’re refusing to give that stuff, it’s like antennas are going up. Yeah. So all right. Yeah. So then you have to assume at that point, you know, they may ask you some questions where you’re coming from, what you’re doing, where you’re going.
00:45:08:07 – 00:45:22:14
I think the biggest thing with that is just again, like we talked about, be polite, be a decent human, but you don’t have to give up the farm. Yeah. You don’t have to say, I’m coming from the bar where I drank ten beers and I’m going home because I’m smashed. Yes, exactly. And I got to get some sleep here, brother.
00:45:22:16 – 00:45:47:14
You know, in fact, that is the probably the worst thing I’ve had 60. I’ve had like 60 UIs in the last like. Yeah, right. So I mean again, but how do you, how do you be polite and answer reasonable questions without giving up the farm, without saying that you’ve been doing this or that you might be impaired? Yeah, I think it’s going to depend on each person’s situation, but the way I generally describe it to people is, again, you know, if they’re asking for documents, you give those.
00:45:47:14 – 00:46:17:01
If they ask you some questions, you know, you can politely dancer or excuse me, politely declined to answer or, you know, I’ll I’ll give you what you need as far as documents. But, you know, I’m not looking to answer any questions, but, you know, you can do that and still be cooperative, because at that point, depending on what the situation is and if there are odors, if you look impaired, if you smell like alcohol, marijuana, etc. at that point, they’re probably going to ask you out of the car if you’re not going to answer certain questions.
00:46:17:02 – 00:46:39:20
But again, there’s a way to do that without being rude, right? Or a question I see a lot when the cops suspect a DUI and they smell alcohol or marijuana, which are only only two things you really smell. The other types of drugs are not smelling too much, but is. Have you been drinking the night? How much did you drink?
00:46:39:23 – 00:47:03:10
Have you been smoking tonight? Those types of things, right? These are questions you do not have to answer, okay? You can decline to answer those questions and not be in any more trouble. Just do a play, okay? Just say, you know, I wouldn’t like to discuss that. I’d like to not answer that question. And that’s probably better than saying I haven’t had anything to drink.
00:47:03:11 – 00:47:17:20
Yeah. Or the two beer rule. Yeah. People think exists. Like, I just always say I had two beers, you know that. That. Well, that’s still an admission to drink it. So you’re, you’re you’re cooked. At that point, I would say eight out of ten cases I have or two beers, two beers. Person had two beers. A lot of two beer drinkers.
00:47:17:22 – 00:47:35:20
Yes, yes. Yeah. So I mean, yeah, again, you know, if they’re going to ask you to do fields, you can you could technically refuse those as well. Yeah. Might not be the best look. And definitely they could use that as substantively as, you know, almost like consciousness of guilt. Like, you know, you’re not even trying to do this.
00:47:35:22 – 00:48:01:18
We’re giving you this opportunity. And I just said consciousness of guilt. And that just made me think. And when we were prepping this episode, we wanted to talk about this. I’m going to move back just for a moment, to the refusal. If you refuse the blood test, the state, the prosecutors in Pennsylvania, as allowed to introduce the fact that you refuse the blood test as consciousness of your guilt to a jury or a judge.
00:48:01:18 – 00:48:24:11
And what that means is that they literally get to say to them, this person was given the opportunity to literally, scientifically prove that they had nothing in their system. And when given that opportunity. What did they say? You know. No. No thanks. Take my license for 12 months. Yeah. Take my license for 12 months instead. Yeah. That is such a powerful piece of evidence for the government.
00:48:24:11 – 00:48:48:28
I know when we were prosecutors, we all used that to the hilt. I. And they use it now. Yeah, yeah. When I was a prosecutor, I mean, most of my jury trials were, I think all of them for DUIs were refusals except for one. And I actually did we didn’t win the one that wasn’t a refusal. We won all the other ones that were refusals because that consciousness of guilt, jury instruction is so bad for defense.
00:48:48:28 – 00:49:12:16
And a jury instruction is something that a judge in a trial literally says to a jury that you have to accept or you have to do you have to imply this. That’s an instruction from a judge. The jury has to account for. Right. That’s what a jury structure is. So to get a bad jury instruction that says, you can imply that this person was conscious that they were guilty of this crime when they refuse that blood test is very, very bad.
00:49:12:17 – 00:49:37:23
Yeah. I mean, it really hurts. The instruction essentially boils down to the Commonwealth contends that they refuse the blood draw because they knew they were impaired, and the defense contends that they refused for a different reason. That’s essentially all the jury gets here. And I wasn’t reading the instruction off a memory there, but that that you’re right. Like but I think that somebody knows intuitively like that’s what people do is they they would refuse that.
00:49:37:24 – 00:49:56:01
And who’s sitting on your jury? It’s people that aren’t lawyers, people that use common sense in everyday life. So they hear something like that and they go, oh, that’s common sense. Like, that’s that’s obvious. One of my, one of my favorite cross-examination of a defendant was in a refusal to UI hit and run trial, and I crossed the defendant.
00:49:56:01 – 00:50:14:06
And, I mean, I got to just rip into him about the fact that, like, he had refused the blood draw, his license is important to him. And he knew that by refusing, he was going to lose his license. And then in argument, the prosecutor gets to argue, think how important your license is to you. Think like we all know how important our license is.
00:50:14:06 – 00:50:34:02
You heard him say it’s really important to him. And he took a suspension instead of taking the blood draw. Why would he do that? What’s he hiding? Yeah, you know, it’s as simple as. What’s he hiding? Yeah. Yeah. I mean, that’s that’s that’s really big. And that’s something I definitely I’m surprised we actually missed that earlier, but I’m really glad we had an opportunity to come back to it, because I just want to hammer that home.
00:50:34:04 – 00:50:55:11
Like refusing that blood test. Some people think that you’re going to get yourself out of the DUI because you refused, and it’s just quite the opposite. It really is. I mean, you have to be so careful. They’re not even just for jury trials. I mean, most again, for first offense DUI in Pennsylvania, whatever. If it’s your first offense, you’re not getting a jury trial unless there’s something else.
00:50:55:18 – 00:51:15:07
But I think most of central PA in most prosecutors, if it’s truly a first fence DUI and it has something else like say you had possession of a controlled substance or something that would allow you to qualify for a jury trial, maybe not the obstruction, because I feel like most of those if if it was going to go to trial, they’ll take that to trial.
00:51:15:07 – 00:51:33:20
But if it was something smaller paraphernalia, possession, controlled substance there, the prosecutor is probably going to withdraw those charges and just proceed on the DUI because of what the penalty for the DUI is, and then you’re just going in front of a judge. So they are a lawyer, and they know what consciousness of guilt is and how powerful it is.
00:51:33:20 – 00:51:54:11
So I mean, the amount of UI or excuse me, first offense do UI bench trials that I did when I was a prosecutor, I mean a lot and it wasn’t very often that we lost. There was a few. And those were, you know, you had some ones. Yeah, yeah. But for the most part you’re going to be found guilty.
00:51:54:13 – 00:52:21:06
Yeah. Yeah. I mean, I can think of as a defense attorney, a trial that I had or somebody did refuse the blood test and that my client was found not guilty. However, there were some other factors that I was able to use pretty heavily in favor of my client. The big one being he was just in a rollover accident where he was thrown all over his car and they were up there saying, yeah, well, he refused the blood test and he did awful on field sobriety testing and things like that.
00:52:21:06 – 00:52:40:11
And I just got up there and again, this is common sense and said, hey, my client was just tossed all over a moving vehicle that rolled all over the road, bumped his head a bunch of times, and now you’re asking him to walk a straight line, and you’re saying he’s drunk because he can’t walk a straight line? I mean, come on, you know, and I think that resonates with the jury in that scenario, but that’s so limited.
00:52:40:12 – 00:53:01:22
Yeah, right. And in that scenario, my client, it was like his fourth or fifth DUI in ten years because in Pennsylvania. There was a ten year look back for prior to UIs that will enhance the potential sentence you could get as calling it a. They aggregate to second and third offenses within ten years, but if it’s beyond ten years, then it’s back to a first offense.
00:53:01:24 – 00:53:21:06
But yeah, I mean in that scenario like that was one of the very limited times that I thought this is a triable case like this is something we can actually win. And we did. And needless to say, that individual like a year later got another DUI, got convicted and went to state prison. Yeah. And that was like their fifth or sixth offense.
00:53:21:06 – 00:53:40:02
So I mean, for what it’s worth though, but when we’re talking about the evidence, like, again, very rarely do you have that good refusal piece there, right? That’s really valuable. I think most of the time, like you said, you know, refusing is not going to put you in a position where you’re going to come out with a positive result that you maybe you’re thinking you’re going to get.
00:53:40:10 – 00:53:58:10
Because remember, the standard, if they don’t have your blood is incapable of safe operation. If it’s alcohol, right. So you can’t you are not capable of safely operating and they can meet that burden without your blood. They can show bad driving, they can show slurring speech, poor performance on the SFS. And they can they can introduce all those same factors.
00:53:58:10 – 00:54:36:08
Even if your blood alcohol is under .08 and you can be convicted if a fact finder, like a judge or a jury believes that you could not safely operate that car, then you’re guilty. Yeah okay, guys. Great. Great episode. That was extremely informative. There’s so much to unpack with these DUIs and to go over and what I, what I think we all three want everybody to know is if you ever find yourself in a scenario where you are on the side of a road and that you’re being suspected of the UI, or maybe you’re already charged, please be a decent human being.
00:54:36:13 – 00:55:08:19
Don’t give up the farm. Generally cooperate. Probably don’t refuse the blood test. Some scenarios it’s worth considering, but if it’s your first time, probably not worth considering and get a lawyer because there are so many things and this is going to segue into eventually next week, our episode where we are going to talk about the Ar.d program and ar.d can deal with a lot of different crimes, but a big one is DUIs, and it’s a great, great way to fix a DUI.
00:55:08:25 – 00:55:33:16
It avoids the conviction. It helps the human being. It helps your client and many times puts them in a scenario where their life is so much better as a result. But the ARD program has become a heck of a lot harder to get into because of some very recent changes that have happened in the law. So we’re going to we’re going to get into that next week, and that’s going to be a whole episode.
00:55:33:16 – 00:55:54:02
On packing all those different changes. What has happened, what we now have to do differently in order to be successful in helping you and helping our clients get the best result that we possibly can. So thank you so much for watching the Now We Defend podcast. Again. We’re three former prosecutors and now we defend.
