Name: DeLuca, Ricciuti & Konieczka
Address: 225 Ross Street, 4th Floor, Pittsburg, PA, 15219, USA
Telephone: (412) 281-6869
Price range: Free Consultation

What Happens When You Refuse to Take a Breathalyzer in Pennsylvania?

October 2, 2017/in Criminal Defense, DUI /by R. Anthony DeLuca

Main Takeaways:

Driving with a BAC of 0.08 or higher is illegal and will result in a DUI or DWI charge.
A breathalyzer measures the amount of alcohol exhaled by your lungs when you breathe into it.
If you refuse to submit to the breathalyzer test, you will have your driver’s license suspended for a period of time ranging between 12 and 18 months.
If certain guidelines for breathalyzers are not followed, then the test results will be invalid.

Pennsylvania DUI Laws

In Pennsylvania, driving with a blood alcohol content (BAC) of 0.08 or higher is illegal and will result in a charge of driving under the influence (DUI) or driving while intoxicated (DWI). When you drink an alcoholic beverage, the alcohol gets into the bloodstream, flows to the lungs and exits your body when you exhale.

A breathalyzer measures the amount of alcohol exhaled by your lungs when you breathe into it. It is registered by the machine, which calculates your BAC. If it calculates it at 0.08, this will be used in court as evidence that you were driving under the influence.

Many people think that if they are stopped by law enforcement for suspicion of DUI/DWI, it will help them to refuse a breathalyzer test so there will not be evidence of their BAC. This is not true. If you have been arrested for drunk driving, there are penalties imposed for refusing to submit to the test even if the DUI/DWI charges are later dropped or you are acquitted.

Consequences for Refusing a Breathalyzer Test

According to Pennsylvania law, “Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests…” in order to determine the blood alcohol content (BAC). The consent only comes into play if you are actually arrested and then requested to take the breath test.

If you refuse to submit to the breathalyzer test, you will have your driver’s license suspended for a period of time ranging between 12 and 18 months, depending on whether or not the driver’s license has previously been suspended under this code section. Even if you are not charged with a DUI, or are charged and acquitted, the refusal is a separate offense and your driver’s license will still be suspended.

Law enforcement also has other ways of proving your BAC was over 0.08. They can testify that your eyes were red, you were driving erratically, your speech was slurred and present other evidence of this nature. This testimony at trial may be enough to secure a conviction even without a BAC test.

Plus, it is not a slam dunk that you will be convicted of DUI even if the results show your BAC to be 0.08 or above. There are challenges that can be made that may show the results to be invalid.

Challenges to the Validity of Breathalyzer Test Results

Certain guidelines must be legally followed for the administration of a Breathalyzer test. If these guidelines were not followed, then the test results will be invalid. Challenges that may be made include:

You were not observed by a law enforcement officer for 20 minutes prior to the administration of the test.
The administrator of the test was not properly certified.
The machine was not properly calibrated.
There were not two consecutive tests conducted.
The test was not properly administered.

Even if none of these challenges are successful and the results are not invalidated, there are conditions that may result in a false positive.

Pennsylvania’s Implied Consent Laws

Thanks to implied consent laws, refusing a breathalyzer test can still result in penalties. Implied consent laws state that when you apply for a driver’s license, you submit your consent to sobriety tests. These laws are based on the rationale that driving is a privilege, not a right.

These laws are highly contested for a couple of reasons. Many question whether or not they actually keep the roads safer. Additionally, many see them as a violation of the fourth and fifth amendment.

Violating Implied Consent

Penalties for refusing a breathalyzer under implied consent laws vary by state. In some states, refusing a breathalyzer can result in jail time.

If you’ve been pulled over because an officer suspects you are impaired, refusing a breathalyzer does not necessarily evade you of a DUI charge. You can still be convicted. In fact, under Pennsylvania’s implied consent laws, your refusal can be used as evidence against you in any proceeding charges. In theory, you could face penalties for violating implied consent laws as well as a DUI conviction.

Implied Consent Debate in Pennsylvania

The debate over implied consent laws was brought before the Supreme Court in June of 2016 in Birchfield v. North Dakota. The Supreme Court upheld that refusal of a warrantless breath tests could be criminalized because breath tests do not pose any significant Fourth Amendment violations since they do not greatly intrude privacy. However, a distinction was made between breath tests and blood tests. The Supreme Court stated that refusal of warrantless blood tests could not be criminalized because they are considered more invasive than breath tests since they are more physically intrusive and reveal much more about an individual than breath tests do.

This distinction was kept in mind when the Pennsylvania Supreme Court reversed Garrett Gaetano’s DUI conviction in June. Gaetano was arrested in Allegheny County after an officer pulled him over for what he suspected Gaetano was driving while intoxicated.

In the appeal, Gaetano’s attorney argued that the evidence of his blood test should have been suppressed. He argued Gaetano’s consent to the test was involuntary because the officer who arrested Gaetano said if he refused the blood test, his license would be suspended and he could face other penalties under PennDot. Since there was no record of what the other penalties would be, the court remanded Gaetano’s case for re-evaluation of his consent to the blood test.

Breathalyzer Tests and False Positives

During the 20 minutes of observation prior to the administration of the test, if you ate a breath mint, ingested any alcohol, vomited or smoked, the test will not be valid. Other medical conditions that may result in a false positive include:

Experiencing a hypoglycemic episode, such as diabetics or those with kidney or liver disease.
Having ingested cough medicine containing alcohol.
Using numbing spray or gel containing alcohol as medication for a toothache.
Being on a high-protein, low-carbohydrate diet.
Using a hand sanitizer that contains alcohol.

Get Legal Help to Fight Your DUI/DWI Charge

A conviction for drunk driving has significant consequences. It can affect your future ability to get a job and, if you are a divorced or divorcing parent, it can cause you problems with child custody and visitation. If you have a prior DUI conviction, or anyone was injured as a result of your DUI, the penalties will be even greater.

At DRK Attorneys, all our attorneys are former prosecutors. We know how the other side thinks and acts. This gives us a unique edge in defending you. Contact us as soon as possible for a free consultation.

Violating a Restraining Order in Pittsburgh

October 2, 2017/in Criminal Defense /by R. Anthony DeLuca

document In Pennsylvania, probation orders are termed Protection from Abuse orders (PFA) and are usually ordered due to rape, abuse, sexual assault, false imprisonment, child abuse, stalking, or threatening.

There are three kinds of protection orders issued in Pennsylvania:

Emergency orders are issued when the court is closed and last only until the court is open again. Emergency orders expire if the victim doesn’t go back to court the first day it’s open to apply for an ex parte temporary PFA or final PFA.
Ex parte temporary PFAs are provided based on just the victim’s side of the story. These orders are temporary and generally issued when a minor is at risk of danger.
Final PFAs are granted after the judge has had the opportunity to hear both sides of the story. Final PFAs can last three years and may be subject to extension.

What Can Be Included in a Restraining Order?

If you’ve been issued a restraining order, it’s important that you understand the stipulations outlined in the order. Common stipulations in Pennsylvania include:

Vacate the home if you and the victim are both residing there, or provide the victim with housing if you’re permitted to stay in the home
Discontinue contact immediately, which may include leaving any public place if the victim arrives
Financially support the victim and/or pay for losses caused by the abuse such as attorney fees
Turn in weapons and ammunition in your possession
Forfeit custody of your children

The victim can make requests during the process which can add stipulations to your restraining order, so it’s important to read your order in its entirety and contact an attorney if you have questions or concerns about the terms listed.

What Should I Do If I’ve Been Issued a Restraining Order?

First and most importantly, do not make contact with the victim. Review the terms of the restraining order and ensure you comply to each stipulation whether you agree with it or it seems feasible or not. Second, hire a defense attorney. An attorney can serve several purposes: they can review the restraining order and provide clarification and guidance; they can help you build a case to defend yourself; and they can assist you in minimizing the impact the restraining order has on your personal and professional life.

When you meet with a defense attorney, you should tell them as much as you possibly can about the events leading up to the restraining order and your experiences and actions since the order was issued.

What If I’ve Violated a Restraining Order?

Violation of a restraining order is a serious charge carrying up to $1000 in fines and 6 months in jail in Pennsylvania. Additionally, violating an emergency or temporary restraining order makes it more difficult to defend yourself against the final PFA. Jail time can significantly impact your life, causing job loss, loss of income, and difficulty finding employment when you’re released. If you’ve violated a restraining order or been charged with violating a restraining order, you should contact an experienced criminal defense attorney as soon as possible.

How Do I Select an Attorney?

When choosing an attorney, consider the following:

Are they located in Pennsylvania? Law varies from state to state, and your attorney must be licensed in Pennsylvania in order to defend you there.
Do they believe that those charged with crimes deserve respectful, thoughtful, and dedicated defense at all times?
Have they defended individuals charged with violation of a probation order before?

Some defense attorneys approach each case with a goal of lessening the sentence while others approach each case with the goal of getting the charges dismissed completely. Which attorney would you rather hire?

Ask the right questions when you meet with a potential defense attorney the first time to gain an understanding of their opinion on your case and the approach they would take. Do they believe there’s adequate evidence for a charge and what would their next steps be? Interview a least two attorneys before make a selection to ensure you have the greatest chances of having the charges dismissed or receiving the least serious sentence possible.

If you’ve been charged with violation of a protection order, contact the Pittsburgh law office of DeLuca, Ricciuti, & Konieczka today.

Theft by Deception

September 29, 2017/in Criminal Defense /by R. Anthony DeLuca

burglar Being charged with any criminal offense is stressful. When that offense is theft by deception, it can be life changing. If you are convicted, the conviction will be on your permanent criminal record and will haunt you for the rest of your life. You will have difficulty finding a job, obtaining a car loan or mortgage, renting an apartment or house.

Theft by Deception Defined

In Pennsylvania, theft by deception is an extension of the basic theft statute: the unlawful taking of the property of another with the intent to permanently deprive the owner of it. Theft by deception expands that definition and adds to it that the defendant intentionally obtained or withheld property of another by deception. A defendant may be found guilty of theft by deception is he or she:

Creates or reinforces a false impression as to the “law, value, intention or state of mind.”
Prevents the person from who items were stolen from acquiring information that might affect his or her judgment.
Fails to correct a false impression “which the deceiver previously created or reinforced.”

The statute specifically states that theft by deception cannot be inferred simply because the defendant failed to perform a promise that was given to the alleged theft victim. Also, the term “deceive” does not include “puffing,” or statements that have “no pecuniary interest.”

Defenses to Theft by Deception

It is important to present a vigorous defense. You want to do everything you can to prevent a conviction for this offense. In order to obtain a conviction, the prosecutor must prove every element of the offense. Although the burden is on the prosecutor, and you do not need to prove anything, there are some possible defenses to this charge:

You did not take the property at all. If it is missing, the owner must have misplaced or lost it.
You took the property with the clear intent of returning it.
The alleged victim gave you the property willingly and freely.
There was no deception. The alleged victim misunderstood the conversation or transaction.
You were under duress and did not intend to deceive.

Penalties for Theft by Deception

In Pennsylvania, penalties for theft depend on the value of the property that was taken. This is determined by either the market value of the property or the replacement value. This means the penalty can range from that of a summary offense to a first degree felony. The penalties are:

Summary offense: Up to 90 days in jail and a fine of up to $300.
Misdemeanor: From third degree to first degree with penalties from one to five years in prison and fines between $2,000 and $10,000.
Felony: First, second or third degree felony with penalties ranging from seven to 20 years in prison with fines from $15,000 to $25,000.

It is crucial to have the services of an experienced defense attorney with a track record of success. Your freedom, your future, and the possibility of a permanent criminal record of theft by deception is at stake.

An Experienced Defense Attorney Can Help

Competent legal representation can make a difference in a theft by deception conviction sending you to prison for years and haunting you for the rest of your life or in your freedom. It is important to put up the best fight possible and to have all of your constitutional rights protected.

At DRK Attorneys, we are all former prosecutors who know how the other side works. We offer a free consultation to review your case and determine the best approach specifically for you. If negotiation for lesser charges or reduced penalties is in your best interest, we are experienced negotiators who will work for the best possible resolution.

If taking your case to trial is the answer for you, we have years of experience vigorously representing our clients in the courtroom. There are no guarantees in the law, but you can trust us to vigorously represent you and we have a track record of success You can contact us online or call (412) 281-6869 for a free consultation.