Police don’t need a chemical test to charge for DUI

It is a common image in popular culture of police giving someone a portable breath test at the side of the road. The idea is the officer is using that instrument to decide if a person is too drunk to operate a motor vehicle, and, thus, in violation of the law.

For one, a portable breath test is not the same as a certified breath test or blood draw. Both of these chemical tests take place at the police station or hospital after an officer suspects a Pennsylvania driver may be guilty of DUI.

What might be a little scarier for a Lancaster resident is that the police and prosecutors do not even need to administer a test before charging a person with DUI.

A certified test which shows a person had a blood alcohol content, or BAC, of at least .08%, creates what is called a legal presumption that the person was too drunk to drive. Likewise, someone who blows at or below .05% is assumed not to be too drunk to drive.

It is illegal in Pennsylvania to drive with .08% or more BAC, even if a person is otherwise able to drive safely.

However, someone who never takes a breath or blood test, or who tests between .05% and .08% faces no presumption either way. The government must prove that they were too drunk to operate their vehicle.

In other words, an officer’s overall opinion of the person’s driving and behavior may be enough to file and pursue a drunk driving charge. A person’s own statements about how much he or she had to drink may also be used as evidence against that person.

Pennsylvania’s drugged driving laws also have so-called per se rules

Pennsylvania also has laws prohibiting motorists from driving with controlled substances in their system if they do not have a prescription for those drugs.

However, in some situations, an officer may elect to charge a person on the grounds that the person was under the influence of any drugs, including legal ones, or a drug and alcohol combination which made the person unable to drive safely.

The bad news is that, to some extent, it does not matter how Pennsylvania authorities charge a DUI. While the penalties vary somewhat, many of the consequences are the same.

The good news is that charges based on the overall ability of a person to drive may be easier to defend.