understanding the elements of a dui
understanding the elements of a dui​

Pennsylvania’s DUI law includes words and concepts that require examination and additional explanation. Additionally, our DUI law applies differently to certain types of drivers.

  •  Vehicle

    For the purposes of our DUI statute, the definition of a “vehicle” is broad. It includes; a car, truck, ATV, dirt bike, and even a traditional, non-motorized, bicycle. See Commonwealth v. Brown, 620 A.2d 1213 (Pa. Super. 1993 (holding that a bicycle qualifies as a vehicle under the Vehicle Code, and the DUI laws therefore apply) see also Commonwealth v. Newdeck, No. 974 EDA 2016, slip op. at n.2 (Pa. Super. September 27, 2017).

  • Highway or Trafficway

    The Pennsylvania Motor Vehicle Code, specifically section 3802 relating to DUI offenses, applies only to the operation of vehicles on the “highways” or “trafficways” of the Commonwealth of Pennsylvania. 75 Pa.C.S. § 3101(b).

    “[T]he critical inquiry in determining whether an area constitutes a section 102 trafficway is the nature of the area, the restrictions placed on access, and the means for excluding the public—that is, whether it is open to the public as a matter of right or custom.”  Commonwealth v. Carlos Guzman, No. 2712 EDA 2012, slip op. at 7 (Pa. Super. Sept. 25, 2013).  The court in Guzman stated that “private access roads, even if occasionally used by visitors, have been considered exempt from the Commonwealth’s DUI laws.”  Id. at 8, citing Commonwealth v. McFadden, 547 A.2d 774 (Pa. Super. 1988) (plurality) (holding that private, dead-end road leading to trailer park was not a trafficway). 

  • Controlling a Vehicle

    A DUI conviction must be supported by evidence the accused drove a vehicle or was in actual physical control over the movement of a vehicle.

    • Driving a Vehicle

      The evidence is most commonly in the form of testimony from a police officer. However, the police do not have to observe the driving. Any person competent to testify can establish this element. The element of driving can also be established by other evidence such as video or circumstantial evidence.

    • Actual Physical Control

      A vehicle does not need to be observed in motion to support a DUI. An intoxicated person behind the wheel (in the driver’s seat) of a vehicle can be enough for a DUI conviction. Further, a person being outside of or near a vehicle can also support a conviction. Evidence that a vehicle was recently in motion or about to be moved is sufficient to support a DUI conviction. Here, courts consider the totality of the circumstances to determine actual physical control. The location of the vehicle can be evidence it was driven there. Whether the engine was running, the keys in the ignition, the headlights were on, the engine warm, are all examples of evidence courts consider in determining actual physical control.

  • Time of Driving & the Two-Hour Rule

    The Commonwealth must prove that the individual was impaired at the time of driving. In alcohol cases, the blood or breath test must be conducted within two hours of the traffic stop. This rule is not absolute, and the time-period can be extended by circumstances outside the officer’s control. The two-hour rule does not apply to DUI controlled substance cases.

  • Incapable of Safely Driving

    The Commonwealth does not need evidence that an accused’s BAC was above .08% to support a DUI conviction. In fact, a person can be convicted of DUI even if blood or breath testing shows that their BAC is below the legal limit. Similarly, the Commonwealth does not need test results to show that a person had a controlled substance in their system to prove a DUI. 

    Indeed, a person can be convicted of DUI based solely on an officer’s observations that he person was incapable of safe driving because they drank a sufficient amount of alcohol, or ingested a controlled substance, that rendered the person incapable of safely driving.

    In alcohol cases this type of DUI is punishable at the lowest level of DUI penalties. However, in controlled substance cases, this type of DUI is punishable at the highest level of DUI penalties.

  • Underage DUI Offenders

    In Pennsylvania, drivers under 21 years old are considered DUI if they have a BAC .02% or above. Moreover, underage DUI offenders also face extended license suspensions for ARD and other diversionary programs.

  • Driving a School Bus while DUI

    School bus drivers are DUI if they have a BAC .02% or above while driving a school bus.

    School bus drivers facing a DUI charge will likely be charged with a M1 DUI and endangering the welfare of children charges.

  • CDL DUI Offenders

    • DUI while Driving Commercial Vehicle

      A driver is DUI if they have a BAC of .04% while driving a commercial truck.

    • DUI while Driving Personal Vehicle

      When driving a non-commercial vehicle, a driver holding a CDL is subject to the same rules and BAC limit (.08%) as all Class C drivers. However, a CDL driver accused of any DUI faces a specific licensing suspension problem.

      The CDL offender faces a one-year suspension of their CDL, regardless of the type of vehicle driven at the time of the DUI offense. The one-year CDL suspension is absolute upon conviction or resolution of the case with ARD. In sum, a CDL holder will only avoid the one-year suspension of their CDL license if the case results in an acquittal, dismissal, or a withdraw of the DUI charges. 

      Otherwise, a person holding a CDL faces suspension of their Class C (standard driver’s license) as any other DUI offender.

      For example, a CLD holder that is charged with a DUI while driving a personal vehicle, and is ARD eligible would face the following license suspensions:

      • A one-year CDL suspension; and,

  • ARD with either no Class C suspension, or a 30, 60, or 90-day Class C suspension depending on the BAC level and age of the driver.

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Lampman Law practices criminal defense and civil rights in the Counties of: Bradford, Carbon, Clinton, Columbia, Lackawanna, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Pike, Schuylkill, Snyder, Sullivan, Susquehanna, Union, Wayne, Wyoming. Lampman Law Office is located in Wilkes-Barre, Luzerne County, Pennsylvania.

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