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How to Get a DUI at Home

Posted by Jenna M. Fliszar, Esq. | Jul 03, 2014 | 0 Comments

I've been talking to a lot of people recently about the DUI law in Pennsylvania, and there's one thing I've learned: it's highly misunderstood. But what could someone possibly misunderstand? It's pretty cut and dry, right?

Well, the most misunderstood part of DUI that I've seen is that DUI in PA is a time-of-driving offense. What do I mean by this? Most people have told me they think DUI means your Blood Alcohol Content is above a .08 while you're driving. This is only partially true.

Yes, the state has to prove that you had alcohol in your system at a certain level, depending on what subsection you're charged under. Obviously, the blood is drawn after you drive. Therefore, we only know what your BAC is at the time the blood is drawn. It used to be that to prove DUI, the state would need to bring in an expert to testify about retrograde extrapolation, or in other words, give scientific evidence as to what your BAC would have been had the blood been drawn at the time of driving. As you can imagine, that can get pricey and somewhat difficult to coordinate for every DUI in the state.

To solve this problem, the legislature rewrote the law to say that your BAC had to be above the legal limit within two hours of driving. This now means that unless your own actions take you outside that two hour window, as long as the blood was drawnwithin 2 hours of you driving, the prosecution doesn't have to bring in any witnesses to testify as to what your BAC was when you were actually behind the wheel.

Consider this case: you're out with your wife. You each have a few glasses of wine, then drive home and get there without a problem. Unfortunately, you get into an argument and for whatever reason, the cops are called to your home about an hour after you arrive. Your wife tells the police you drove, and you admit to driving home. After all, you're already there, so it's not like they can arrest you for DUI at this point, right?

Wrong. Even though you made it home, it's still within 2 hours of driving. The police arrest you, take you in for a blood draw, and it comes back that your BAC is a .11. You can now be charged with DUI.

It doesn't matter that we don't know what your BAC was when you were driving. It doesn't matter that you got home without a problem. It doesn't matter that your BAC may have even still been rising and could very well have been below the legal limit while you were driving (heads up – you'll probably need to pay for an expert to try to argue this defense). These are just arguments you can make to create reasonable doubt.

But what about the person who goes home and has a drink or two before the officer arrives? The one thing that person has going for them is that the prosecution has to prove that you didn't drink between the time of driving and the time you arrived home. However, this is merely a defense. In my experience, the prosecution will still charge you and it'll be up to you to argue that you were drinking after you drove. This is often an uphill battle.

It's important to have an experienced attorney who understands your case and can present these defenses. Remember: you aren't necessarily safe from a DUI just because you get home safely. If you're in this kind of situation, let Fliszar Law Office, LLC tell you how it can help.

About the Author

Jenna M. Fliszar, Esq.

Bar Admissions Pennsylvania United States District Court for the Middle District of Pennsylvania Additional Training Practitioner, Standardized Field Sobriety Testing Instructor, Standardized Field Sobriety Testing Drug Recognition Expert Training Forensic Chromatography Training Ad...

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