Instead of a dry, boring article, the following is an excerpt from a recent interview
with Attorney Leckerman on the subject.
Interviewer: What should someone expect to happen from the moment they are arrested for DUI in Pennsylvania through the next 30 days?
Leckerman: Initially, most Pennsylvania police departments do not issue a complaint at the time that you are arrested. By complaint, I mean a document with the charges against the driver who was arrested. What typically happens is the police officer will wait for blood tests results or delay filing the complaint, even if breath tests results are taken, and issue a complaint with a summons to appear at the preliminary hearing. The preliminary hearing is the first court date. The date to appear for the preliminary hearing typically won’t be for at least three or more weeks after the complaint is sent to the driver. Sometimes, there will be a delay of even two or three months from the point of arrest to the time the complaint and summons are sent to a driver.
When a person is arrested and taken back to the police station, he or she is essentially going to be asked to give one of three types of samples for chemical testing. The first would be a breath sample for a breath test machine. In Pennsylvania, there are many types of breath test machines that are used in each county and in each police department. There is no one standard breath testing machine that has to be used by police officers.
When an officer is asking for blood samples, typically that officer is going to have the driver taken to a hospital in order to have a nurse or phlebotomist extract two vials worth of blood. Those blood samples are sent to the laboratory, which can either be a state laboratory or private laboratory. The blood analysis usually takes three or weeks to occur and the results aren’t produced for approximately that period of time or sometimes longer.
Rarely does a police officer ask for a urine sample. Urine is often requested in situations involving a suspected drug DUI.
A driver in Pennsylvania does not have the right to refuse to give a blood, urine or breath sample when requested by a police officer. Nonetheless, the police officer must still have probable cause to arrest the driver and take the driver back to the police station or a hospital in order to get breath samples or blood samples.
Interviewer: Is it a good idea to contact an attorney immediately?
Leckerman: Absolutely. After being released from custody, most drivers wait until they receive a complaint in the mail or a summons to appear in court before contacting an attorney. That is generally not a good idea, because certain steps should be taken in the beginning of every DUI case. Investigation may be needed of potential witnesses. Those witnesses should be interviewed immediately concerning the events that took place. There may be the necessity to take photographs of the scene where the investigation occurred or, if an accident occurred, the damage to the vehicle. In accident situations, there may be the need to get an accident reconstructionist to an accident scene before essential evidence is lost.
Other times, the attorney can call the arresting police officer and persuade that officer not to charge the driver with certain criminal offenses. Additionally, if the driver refused to give a blood, breath, or urine sample, then the attorney can persuade the arresting officer to not notify PennDOT of the driver’s refusal. This would save the driver an additional twelve months of license suspension period, provided that the officer agrees not to send the DL-26 refusal form.
Interviewer: Does the complaint and summons ever beat the lab result for blood or urine?
Leckerman: Yes. Often a complaint will be filed without the lab results. Typically, the blood test results will be revealed at the preliminary hearing.
Interviewer: What happens at the preliminary hearing?
Leckerman: At the preliminary hearing stage, the attorney will have the opportunity to speak with the officer additionally about the charges and perhaps the officer will agree to withdraw certain charges in the complaint or the entire complaint itself, if appropriate. Otherwise, the attorney will be able to cross examine the officer and any other witnesses that are presented at the hearing. The preliminary hearing is for the prosecution to establish probable cause that the charges in the complaint were justified. Much less evidence has to be presented by the prosecution as opposed to the evidence that must be presented at an actual trial. At an actual trial, the prosecutor has to put evidence on the record that would be able to convict someone of a DUI charge beyond a reasonable doubt.
Interviewer: So what I am getting out of it is that it could be a huge nasty surprise. Is it most of the time that the blood or urine results are revealed at the hearing and not before?
Leckerman: If the attorney does not contact the police officer ahead of time, then you will not find out what the blood test results are prior to the preliminary hearing. So, in my cases, I will always call the officer before the preliminary hearing in order to find out what the blood test revealed. Most of the time I do hear back from officers. Occasionally, I won’t get to speak to the officer until the preliminary hearing. However, knowing what the lab results are prior to the preliminary hearing helps a client understand the potential penalties.
The blood test results or breath test results will determine what the level of punishment may be if you are convicted for a DUI. There are three tiers of punishment. If your blood test results are in the highest tier, then you will be facing exponentially higher penalties depending on how many prior DUIs you have.
Interviewer: Are there times when the lab results are not ready by the time of the hearing?
Leckerman: Sometimes, the blood test results are not available at the preliminary hearing. This often occurs when the state laboratory is used to analyze a blood sample. In that case, if I had been in touch with the police officer, I often ask the officer to contact me prior to the preliminary hearing with the blood test results. If I don’t hear from that officer, then I will try to contact him to confirm the results hadn’t been received and then I’ll ask for the preliminary hearing to be continued. Otherwise, it is a waste of time to go without the blood tests results being available.
Interviewer: The other important thing I heard is that you can potentially, by talking to the police, in the right situation, mitigate the damages before you even get to that first hearing, maybe even in some cases getting rid of the need for it at all.
Leckerman: Right. Occasionally immediate intervention by an attorney can prevent a complaint from being issued, or certainly mitigate the charges that are going to be placed in the complaint.