What to do when you get pulled over
This page will tell you step by step what to do to assert your constitutional rights and rights under Pennsylvania law when you are pulled over by Pennsylvania police officer on suspicion of DUI. MY LAW FIRM DOES NOT CONDONE OR SUPPORT DRINKING AND DRIVING IN ANY FORM WHATSOEVER. The obvious way to avoid DUI prosecution in Pennsylvania is to never drink alcohol and drive a vehicle at the same time. However, my law firm does believe in the Fifth Amendment of the United States Constitution and the right against self incrimination. Justice Frankfurter of the United States Supreme Court had this to say about the Fifth Amendment:
[t]ime has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege...Such a view does scant honor.
Before I advise you what steps to take to minimize your chances a DUI conviction, you need to know what clues the police look for when they pull over a suspected drunk driver. They use these clues to build their case against you. The police need reasonable suspicion to stop your car and reasonable suspicion to pull you out of the vehicle to perform Chemical Testing and make a DUI arrest. According to the Pennsylvania DUI Association a police officer can tell by the way a vehicle is driven whether or not the driver is under the influence. The following are clues that Pennsylvania police look for when on patrol for drunk drivers:
- Turning too wide
- Not taking off at a red light
- Driving across the center lane
- Driving too slow
- Driver action inconsistent with turn signal
- Stopping and starting
- No headlights
Once you are pulled over, the officer will also be looking for clues that you have been drinking. The officer needs these clues to obtain cause to pull you out of the vehicle and make the arrest. The officer will attempt to observe the following:
- Fumbling for driver’s license and registration
- Odor of alcohol
- Glassy eyes
- Slurred speech
- Empty beer cans or liquor bottles
- Staggering/leaning on the car
- Failure to follow officer’s directions
- Loud talk/boisterousness
- Admission that you have been drinking or admission that you were at a bar
Now that you know what evidence police officers are looking for, you can take steps to minimize the evidence available to the officer to support a DUI arrest.10 STEPS TO AVOID A PENNSYLVANIA DUI PROSECUTION
As a former DUI prosecutor, I know that many drunk drivers will be so intoxicated that they will not be able to follow these steps. Obviously, if you fall into that category you should never attempt to drive a vehicle. Once again, my office does not condone drinking and driving. However, it is not against the law to drink and drive in Pennsylvania. It is against the law to drink and drive with a BAC over a .08% or be intoxicated to the point where you cannot safely drive your vehicle. If you have been legally drinking alcohol and driving your vehicle, follow these 10 steps and you may be able to avoid a DUI prosecution and subsequent conviction:
- Keep your vehicle in good working order. Make sure the vehicle is well maintained and keep all headlights, taillights, turn signals in working order. Many times police officers will stop a vehicle because of a burned out turn signal or taillight and will subsequently obtain a DUI conviction.
- Make sure your tags and vehicle registration are current. If the police spot expired tags this will give them cause to pull the vehicle over.
- Obey all rules of the road. Drive the speed limit, use turn signals when appropriate, drive within the lines and come to complete stop when appropriate. Do not give the police any reason to pull you over.
- DUI Roadblock: you are allowed to avoid a DUI roadblock if you are able to make a legal traffic maneuver and drive away. You do not have to go through a DUI checkpoint if you have the opportunity to turn off. Per Pennsylvania law, you may make a legal U-turn or turn off onto a side road when approaching a DUI checkpoint. According to the Pennsylvania Superior Court, “[a]n officer’s mere hunch that an intoxicated motorist is seeking to avoid the checkpoint is insufficient.” Make sure you use your signal and follow all traffic control devices when turning to avoid a DUI Checkpoint.
- Minimize the smell of alcohol coming from your vehicle. If you do get forced to stop at a DUI checkpoint or get pulled over by the police on suspicion of DUI, the first thing a police officer is trained to do is smell an odor of alcohol coming from the vehicle. The officer may stick his head close to the window of the vehicle or even in the vehicle to get close to your breath. First, roll your window down only a third of the way and pass your license, registration and proof of insurance through the window. I would not crack the window because this may appear suspicious. If you roll your window down a third of the way this will minimize the officer’s encounter but not appear suspicious. Second, chew gum or smoke. This may cover any odor of alcohol if you have been drinking. However, do not start this act in front of the officer. The officer may say you are using the gum or cigarettes to cover the odor of alcohol if you open these items in front of the officer. Use these items well in advance of the officer approaching the vehicle. Third, do not let the officer get close to your face when you talk. The officer is attempting to smell your breath for alcohol. Keep your distance without appearing suspicious.
- Have your license, registration and proof of insurance in a place that is easily accessible. When you retrieve these items you want to be as smooth as possible. The police officer will be looking to see if you fumble for these items. Have them ready, paper clipped together in an easy to reach place such as the glove box.
- Whenever a police officer asks you any question such as “have you been drinking” politely decline to answer these questions. If the police continue to press you, respond with “I would like to speak to an attorney before I answer any questions.” The police officer may ask you various questions such as “have you been drinking,” or “where are you coming from” or “where are you going.” Politely decline to answer these questions or if the police keep pressing, simply reply “I would like to speak to an attorney.” This statement invokes your Sixth Amendment Right to Counsel under the United States Constitution. Once the police hear those magic words they must cease all questioning until you have an attorney present. NEVER TALK TO POLICE IF YOU ARE AN ACCUSSED. Anything you say may be used against you! This is the most important thing I have learned from practicing criminal law. Good things never happen when you talk to police. You have no obligation to ever talk to a police officer other and have no obligation to be a witness against yourself. You only have an obligation to produce your license, registration and proof of insurance. If you admit to drinking this will give the police officer cause to pull you out of the vehicle and ask you to submit to Field Tests.
- Politely refuse to take the Portable Breath Test (PBT) or roadside breath test. This test should not be confused with the chemical test of blood, breath or urine that you will be asked to take once you get back to the police station or DUI processing center. The PBT is a preliminary breath test used on the roadside by police to determine if they should arrest you on suspicion of driving under the influence. Under Pennsylvania law, you have no obligation to submit to the PBT test. You do have an obligation to submit to Chemical Testing or testing back at the station of your blood breath or urine per Pennsylvania’s implied consent law.
- Politely refuse any field sobriety tests. In Pennsylvania, you have no obligation to submit to Field Tests or field sobriety tests. These tests are designed for you to fail. They give the police officer clues as to whether or not you were drinking. I have seen individuals under the influence perform these tests almost flawlessly and the officer still found faults with the individual’s performance. If you make one mistake the police officer will catch it. Field Tests can only hurt you. Please be advised that refusal to submit to field tests can be used against you as “consciousness of guilt.” In other words, the prosecution can claim at trial that you did not submit to field tests, therefore you must be guilty. Failure to submit to Field Tests can also be used by the officer to determine whether probable cause exists to arrest you. In light of these facts, my opinion is unchanged. In my experience, I have never seen anyone over the legal limit pass field sobriety tests. The tests are designed so that the officer can always find clues that you were drinking. In my opinion you are better off refusing the tests. Refusing all tests will limit the prosecution’s evidence against you at trial.
- Chemical Testing: Blood, Breath, or Urine: Should I refuse to take the test? Answer varies from situation to situation. When you drive a motor vehicle in Pennsylvania, you give implied consent to submit to a chemical test of your blood, breath or urine. This test is not to be confused with the PBT test or roadside breath test referred to above in paragraph eight (8). This is the test that you take when you are brought to the police station or DUI processing center. This test can be a breathalyzer, blood test or urine test. When you refuse to take this test your license will be suspended for at least 12 months and up to 18 months. Additionally, if you refuse the test and you are convicted of a DUI you will be subject the same penalties as if you were driving with the highest rate of alcohol in your system. This is my advice, DO NOT refuse to take this test if this is your FIRST DUI OR you have not been drinking. If this is your first offense DUI, you may be accepted into the ARD program which will only mandate a 30-60 day license suspension at most. Also, even if you are not admitted into the ARD program on a first offense DUI because of prior convictions, you may be eligible for an occupational limited license or a work license after serving 60 days of your license suspension. If this is your SECOND or SUBSEQUENT DUI and you feel you are over or approaching the legal limit then I would refuse any chemical testing. If convicted of a second or subsequent DUI, you will lose your license for minimum of 12 months anyway. If you refused all of the Field Tests and refuse Chemical Testing back at the station it will be difficult for the prosecution to prove their case against you at trial.
If you are facing DUI charges in Pennsylvania contact my office at (610) 299-0295 to speak with a DUI defense attorney and former DUI prosecutor.