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Can the “two-hour rule” play a role in my DUI defense?

On Behalf of | Feb 23, 2022 | Criminal Defense

Pennsylvania drivers who are arrested and face the prospect of a conviction for driving under the influence might understand the basics about the charges. That includes the traffic stop itself, field sobriety tests, the breathalyzer and blood-alcohol concentration. What they are often unaware of is the nuance of these cases. Often, it is the underlying factors that are the most important in formulating an effective defense and avoiding a conviction with the worst possible penalties. For example, the driver who is accused of DUI could use a lapse in when the testing was done to claim that the charges should be reduced or dropped. This is when it is imperative to know about the “two-hour rule” for DUI testing.

Key aspects of the two-hour rule

According to the law, a person cannot drive or operate a vehicle after consuming enough alcohol in which they will register a BAC of at least 0.08% and as much as 0.10% within two hours of driving. If a person drove at 1:00 p.m. and was tested at 2:55 p.m. and registers between these amounts, they can be charged with DUI. The two-hour rule also applies to a so-called “high rate of alcohol.”

The BAC for high rate of alcohol charges is a minimum of 0.10% and the maximum of 0.16%. The “highest rate of alcohol” refers to those whose BAC is 0.16% or higher. For drivers who are accused of drinking underage, the BAC is 0.02%. It is 0.04% for a commercial vehicle and 0.02% for a school bus or vehicle.

The state also has in place provisions that will allow the testing to be conducted and evidence used if it was done beyond that two-hour window. The prosecution must show good cause as to why the testing was done after two hours had elapsed and show that the person did not consume alcohol after the arrest and when the sample was taken.

Crafting a defense based on the two-hour rule

People trying to fight a DUI charge based on their BAC not being taken within the two hours required after allegedly driving or operating a motor vehicle should know that there are aspects of the case that can be called into question. Perhaps the testing equipment was not available or was malfunctioning. Staffing problems or confusion could have been factors. There might not be a viable reason for the testing not having been done in those two hours. It is up to the court to decide whether to let the case move forward.

Even if the case proceeds despite flimsy justifications for the delay, there may be an opening to defend against the allegations due to the inability on the part of the prosecutor to definitively know that the person did not consume alcohol in those two hours after driving. This could also be a factor in the level of charges. Since the percentages are keys when deciding whether to charge a driver with having consumed a high rate of alcohol, the disparity could reduce the charges and the possible penalties the driver will face.

Defending against DUI charges may require advice and guidance

People who are convicted of DUI can lose their driving privileges, be incarcerated and pay hefty fines. In addition, it can negatively impact their employment, their education and other aspects of life. Although there might not seem to be a viable path to avoid conviction, every case is different and there may be effective strategies to implement as part of a criminal defense. That might include assessing the two-hour window. This and other ways to fight DUI charges can be beneficial to achieving a positive result. Discussing the situation with those experienced in these situations can be helpful.