Arrested in Philadelphia for DUI
A gentleman called us and stated that he had been charged with his third DUI within a ten year period. He needed the best representation possible.
He was a charming fellow who was single and had an active social life that concentrated on the bars in his neighborhood. He told me that he would never drink and drive again after the last arrest because he had to serve 15 weekends in jail. He found those weekends to be horrible.
He told me that he had been drinking in a bar three blocks from his house. As he walked home, he noticed that his parked car had the driver's side window down. He walked over to his car and opened the driver's side door, sat in the driver's seat, and turned on the motor in order to put the electric window up. Just then, a female police officer pulled up next to him, asked him for his paperwork, and asked him where he was going. He tried to explain to the police officer that he wasn't going anywhere and he had just entered the car in order to put the window up. She asked him if he had been drinking and he acknowledged that he had, but had not been driving. She told him that Pennsylvania law said what he was doing was operating a motor vehicle. She got him out of the car and gave him a field sobriety test, which he promptly failed. She called a supervisor and arrested the young man for DUI.
In the course of preparing for the trial, we examined the paperwork that indicated that he had taken a breathalyzer within the proper 2-hour period and, in fact, his blood alcohol level was .31. The paperwork stated that the probable cause for investigating my client was that the police officer observed a man staggering into an automobile and starting it.
If my client were convicted of repeat DUI, Pennsylvania law would require him to receive a mandatory minimum jail sentence of no less than one year. I concentrated my research on the issue of operation but I was hard pressed to find any case that was right on point for either the Commonwealth or the defense.
The first witness at the trial was the police officer. She set the scene by stating that she was working the 11 to 7 tour of duty and while patrolling in her sector, she saw a man who was "obviously very drunk get into his 2007 Lexus, get behind the driver's seat and start the car." She continued with her testimony as I crossed my fingers and hoped that I was the only one who heard what I heard. The Commonwealth went on with other witnesses testifying to the breathalyzer and introduced various documents. I cross examined no one. I did not object to anything. The Commonwealth rested.
The Commonwealth had case law concerning the concept of "operation" in Pennsylvania. I asked that the court reporter read back that part of the police officer's testimony. The Commonwealth argued that the police officer meant that the driver got in the driver's seat or behind the wheel. That, of course, is not what the officer said. My client was found not guilty because sitting behind the driver's seat is clearly not sitting behind the wheel or sitting in the driver's seat.
The point? Words matter. Trials are unpredictable. You can't hit a home run unless you swing the bat.
When you need legal help fighting a criminal charge, call 215-561-9188 to reach the law office of Patrick Artur
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