DUI / Drunk Driving Criminal Defense Lawyer (PA)

As an experienced DUI defense attorney, I understand the legal and personal challenges you face following a DUI arrest. I have over 30 years of experience in handling DUI cases at all levels. My in-depth knowledge of the Pennsylvania DUI laws allows me to properly evaluate your case and provide you with the zealous representation needed to make sure you obtain the best possible outcome.

Pennsylvania DUI laws can be found in the Vehicle Code at 75 Pa.C.S. 3802. All first offenses (unless there was an accident with serious injuries or death) are considered ungraded misdemeanors with a maximum punishment of up to six months in jail or probation.

Second and subsequent offenses (unless there was an accident with serious injuries or death) are either ungraded misdemeanors or a misdemeanor of the first degree with a maximum punishment of up to 5 years.

This page will educate you about DUI charges involving alcohol. We also defend all other types of DUI cases including marijuana, controlled substances, medications, etc.

See below for a table of contents for this page.

pennsylvania dui lawyer

Hire me and you are hiring experience!

When you hire me, you are hiring a highly trained and experienced attorney. I will personally handle your case and not push you off to an inexperienced associate attorney. I feel this is important because representation in a criminal case is a very personal matter. Clients do not like opening up to one lawyer and then finding themselves being represented in court by another. I will handle your case with tenacity and a “no stone unturned” attitude at every stage of the legal process.

At my Norristown, Montgomery County PA law firm, as your lawyer, I will take every step to protect your reputation as I prepare a strong defense on your behalf. Using my vast knowledge of Pennsylvania DUI laws I will analyze every aspect of your case from the reason you were pulled over in the first place to the chemical testing process. Every case has unique facts and circumstances and I have learned how to use them to get you the best possible result.

V. Erik Petersen - Criminal Defense Lawyer, Pennsylvania

Good people make mistakes

You and I will get to know each other so that I can help the prosecutor see that you are far more than just another “DUI arrest.” I help advocate for you so that the prosecutor and the judge can see the positive aspects of your character such as a family member, a provider for your family, a productive working member of society, a member of your community or religious group, etc. It is my job to help the system see you as more than just a DUI case so that they understand that jailing you may not be in your family’s or society’s best interests.

For many of my clients, being accused of drunk driving is one of the most humiliating experiences of their lives. They are treated like criminals and sometimes spend the night in jail. Unfortunately, the nightmare continues because they also face potentially steep consequences that could lessen their freedom and affect the rest of their lives. It is my job to reverse the playing field and force prosecutors and judges to see that “good people make mistakes” and that you should be treated like a person who may have made a mistake and not a criminal.

DUI is a Criminal Charge

The social stigma and public perception associated with a DUI charge can affect your employment or career and may result in lifelong negative consequences. Pennsylvania DUI laws are complex.

If you have been stopped, arrested, or charged with drunk driving in southeastern Pennsylvania it is in your best interest to discuss your options and rights as soon as possible with an experienced attorney who has handled hundreds of drunk driving cases.

Potential Penalties for DUI

  • Suspension of your driver’s license
  • Large fines and court costs
  • Jail or prison time
  • Probation
  • Community service
  • Substance Abuse Treatment or Counseling
  • Restitution
  • Criminal record

Types of DUI Cases I Defend

DUI Terminology

The offense of drunk driving goes by a variety of names, including:

  • Driving under the influence (DUI)
  • Driving while intoxicated (DWI)
  • Operating under the influence (OUI)
  • Operating while intoxicated (OWI)
  • Driving under the influence of intoxicants (DUII)
  • Driving while under the influence (DWUI)
  • Driving After Imbibing (DAI)

All of the above names are synonymous. A drunk driving conviction requires proof that an individual was driving or operating a motor vehicle while they were under the influence of alcohol and/or controlled substances. This may seem straightforward or obvious. However, there are many small details that can be examined and challenged in order to build a successful defense to a DUI charge.

Elements Of Drunk Driving

Driving Requirement

The first thing to question in a DUI case is whether or not the prosecutor can prove that the person was ‘driving” on a “public roadway”. Guilt or innocence may hang on whether the defendant was actually “driving”. For example, what if he or she was just sitting behind the wheel of a car, but the car was off? What if he or she was found sleeping in a running car? What if the keys were in his or her pocket and not the ignition? What if the car was out of gas and could not be started? Courts have considered these and other similar scenarios to determine whether the necessary control over the vehicle was present and the outcomes vary depending upon all relevant facts and circumstances.

Also, was the “driving” on a “public roadway”. This is usually obvious, but not always. What if the person was only observed driving through a parking lot? What if the person was only observed driving on someone’s private driveway? What if the person was only observed driving “off-road”? Once again, all facts and circumstances will need to be analyzed if any of the above scenarios is involved.

Vehicle Requirement

Cars, trucks, and vans are obviously considered to be vehicles for purposes of a DUI. However, people have been convicted of drunk driving while operating mopeds, dirt bikes, snowmobiles, electric wheelchairs, golf carts, bicycles, and ATVs. Typically, if the vehicle has wheels and a motor it will qualify as a motor vehicle under the DUI laws.


One way prosecutors prove driver intoxication is through scientific chemical testing of the amount of alcohol in the body, usually by analyzing the breath or blood. A person with a blood alcohol concentration (BAC) over .08 is considered legally intoxicated. Also, a person with a detectable amount of THC, methamphetamine, morphine, fentanyl, and many prescription drugs is considered to be legally intoxicated or under the influence of a controlled substance.

Implied consent laws create the legal presumption that if a person takes advantage of the privilege of driving, he or she automatically consents to state-administered chemical testing to determine his or her BAC. If a driver refuses to take a chemical alcohol test, his or her driver’s license may be revoked or suspended for at least one year and still face the consequences of a DUI charge.

BAC test results over the legal limit are usually presumed to be proof of intoxication. However, defendants may challenge the conclusiveness of the results by showing irregularities in the test administration procedure or problems with the test equipment. Also, the margin of error can be argued if the person’s BAC is very close to the legal limit, .081 for example.

Other types of evidence used by prosecuting attorneys to show intoxication include drivers’ statements, witness and police observations of behavior and driving patterns and circumstantial evidence.

Police also gather important evidence of intoxication by administering standard field sobriety tests (FSTs) at the scene of a traffic stop. Common field sobriety tests include:

  • Finger-to-nose test
  • One legged stand
  • Walk and turn test
  • Horizontal gaze nystagmus test (a twitching of the eye that only occurs if intoxicated)
  • Counting backwards
  • Reciting the alphabet or reciting only a segment of the alphabet

Pennsylvania DUI Trials

Persons charged with DUI in PA have an absolute right to a trial. However, not all DUI offenses entitle a person to a trial by jury. Under Pennsylvania law, all first offense DUI cases do NOT have a right to a jury trial. The only exception is when the first offense involves an accident with serious injuries and/or death. A second offense DUI charge only has a right to a jury trial if the person’s BAC is .16 % or higher. The serious injury and/or death exception applies here as well.

Please call me, Pennsylvania DUI defense Lawyer Erik Petersen to discuss your rights.

pa dui trials

DUI Offense Tiers

First Time DUI Defense

A person with a clean criminal record and with no other DUI offenses can most likely qualify for a first-time offender program known as Accelerated Rehabilitative Disposition (“ARD”). ARD has at least three main benefits, they are:

  • No jail time
  • Reduced license suspension
  • Expungement of the criminal record upon satisfactory completion

The main reasons a person would not qualify for ARD are 1) they have a criminal record; 2) the DUI involved an accident with serious injuries or 3) a person under the age of 14 was in the car at the time of the DUI.

If you do not qualify for ARD as outlined above you could be facing 72 hours of mandatory jail time, significant fines, a 1 year drivers license suspension and a permanent criminal record. Read more about ARD here.

Second Offense DUI charges

If you are currently charged with a DUI and you had a prior DUI conviction or were placed into the ARD program within the past 10 years, this current DUI will be treated as a second offense. A second offense DUI charge carries mandatory jail time and a mandatory license suspension if convicted. The amount of jail time and the length of the driver’s license suspension depends upon the blood alcohol content (“BAC”) and whether or not there were controlled substances or drugs in your system. Finally, whether or not you refused chemical testing is a determining factor as well. The mandatory minimums are summarized below.

  • If you had a BAC between .080 and .099 the mandatory jail time is 5 days and the applicable license suspension is 12 months.
  • If your BAC is between .100 and .159 the mandatory jail time is 30 days and the applicable license suspension is 12 months.
  • If your BAC is .160 or higher, or if you had controlled substances or drugs in your system the mandatory jail time is 90 days and the applicable license suspension is 18 months.
  • If you refused chemical testing the mandatory jail time is 90 days and the applicable license suspension is 18 months.
  • You should be eligible for an Ignition Interlock License after serving half of these suspensions. This means you can legally drive by installing the interlock system in the vehicle you will be driving and by following PennDOT’s application process.

Third or Subsequent Offense DUI charges (PA)

In Pennsylvania, the penalties for a third or subsequent DUI (Driving Under the Influence) conviction are severe. If an individual is convicted of a third or subsequent DUI offense within a ten-year period, they can face the following penalties:

  • A mandatory minimum jail sentence of one year, with a maximum sentence of up to seven years.
  • A fine of up to $15,000.
  • A mandatory 18-month license suspension.
  • The installation of an ignition interlock device on their vehicle for one year after their license is restored.
  • Completion of an alcohol highway safety school program.

In addition, a third or subsequent DUI conviction when a person’s BAC is .160 or higher is considered a felony offense in Pennsylvania, which can have long-term consequences such as difficulty finding employment, loss of the right to vote, and restrictions on owning firearms. The penalties for a third or subsequent DUI conviction in Pennsylvania are severe, making it essential to have an experienced DUI defense attorney on your side to fight for your rights and freedoms.

DUI Penalties Chart

Pennsylvania DUI penalty law has a three-tiered punishment system (set forth in the chart below) depending on a person’s blood-alcohol level. Penalties for DUI convictions increase with each tier. The least severe penalty applies for those who drive with a blood alcohol content of .08 to .099 percent. More severe penalties apply for those who drive with a blood alcohol content from .10 to .159 percent, and the harshest punishment applies to those with a blood alcohol content of .16 percent or greater. A person’s blood alcohol level must be determined from blood drawn within two hours after the individual was in actual control of the vehicle.

People who “refuse” or decline to take a blood-alcohol test upon request of the police are deemed to be in the highest blood-alcohol content tier.

Pennsylvania is one of the few states that has a “per se” law with respect to driving under the influence of various drugs. This means that if a person charged with DUI has any measurable amount of drugs in their system (even if the drug was ingested days or weeks prior to the arrest), they are punished as if they were in the highest alcohol level if they are convicted.

First Offense (DUI/Drunk Driving)

Blood Alcohol Content

0.08 – .099%

0.10 – .159%

0.16% and above

Minimum Sentence


2 days

3 days

Maximum Sentence


6 months

6 months

License Suspension


12 months

12 months

Second Offense (DUI/Drunk Driving)

Blood Alcohol Content

0.08 – .099%

0.10 – .159%

0.16% and above

Minimum Sentence

5 days

30 days

90 days

Maximum Sentence

6 months

6 months

5 years

License Suspension

12 months

12 months

12 months

Third Offense (DUI/Drunk Driving)

Blood Alcohol Content

0.08 – .099%

0.10 – .159%

0.16% and above

Minimum Sentence

10 days

90 days

1 year

Maximum Sentence

2 years

5 years

5 years

License Suspension

12 months

18 months

18 months

Fourth and Subsequent Offense (DUI/Drunk Driving)

Blood Alcohol Content

0.08 – .099%

0.10 – .159%

0.16% and above

Minimum Sentence

10 days

1 year

1 year

Maximum Sentence

2 years

5 years

5 years

License Suspension

12 months

18 months

18 months

Alternatives to Jail for DUI Charges

ARD for Pennsylvania DUI Cases

I have helped many people who were accused of drinking and driving avoid the extreme consequences of a DUI conviction. I have been successful in negotiating creative and alternative sentences for clients accused of a first-offense DUI in PA.

One such alternative program is the Accelerated Rehabilitative Disposition (ARD Program) which involves no jail time and a greatly minimized driver’s license suspension.

Importantly, Accelerated Rehabilitative Disposition (ARD) is considered a non-conviction — which means that at the conclusion of the ARD Program, the DUI charges are legally dismissed and may be expunged from a person’s criminal record. In some instances, I am able to help my clients secure a PA Occupational Limited License (“bread-and-butter license”) to allow them to continue to drive for work.

While Accelerated Rehabilitative Disposition (ARD) or a plea bargain is sometimes the best option, it is important to choose a DUI defense attorney who is not hesitant to take a matter to trial when it is appropriate to do so. Prosecutors can sense when a lawyer is afraid of trial and will be less inclined to offer the best possible deal. As both a former prosecutor and defense counsel, I understand how prosecutors and police investigate suspected DUIs and prepare for trial. I have a great deal of experience in trying DUI and other criminal cases.

More Info on ARD for DUI 1st Offense

People charged with a first offense driving under the influence/DUI in PA may be eligible for the Accelerated Rehabilitative Disposition (ARD) program. ARD is a pre-trial intervention program that is designed to divert first-time, non-violent offenders from the criminal justice system.

Admission into the Accelerated Rehabilitative Disposition (ARD) program results in no jail time and a greatly reduced license suspension. By statute, county district attorneys’ offices are permitted to have their own unique criteria and conditions for admission into an ARD program. It is important to understand that cases that may qualify for ARD in one county might not for another.

The Montgomery County, PA ARD Program

In Montgomery County, PA, it is possible to earn a reduced period of probation if you comply with certain terms and conditions in a specified time period. Specifically, your probation period can be reduced to six months (as opposed to a year). You should retain an experienced DUI defense lawyer to ensure your eligibility for the best possible ARD Program conditions.

There are certain terms and conditions of the ARD Program that are imposed by PA statute and are non-negotiable. A person admitted into ARD must serve six to 24 months of non-reporting probation and will have to attend and successfully complete Alcohol Highway Safety School, undergo a Court Reporting Network (CRN) drug and alcohol evaluation and perform at least 12 hours of community service.

It is important to note that when a person is charged with DUI following an accident with injuries or property damage, he or she may not be entitled to admission into the Accelerated Rehabilitative Disposition (ARD) program. In such cases, it is critically important to retain an experienced criminal defense attorney.

Please contact me, DUI Defense Lawyer Erik Petersen for further clarification or click here to discuss your case.

Expungement of an ARD Disposition

Perhaps the best benefit of the ARD Program is the fact that you can eventually get your record expunged. Once a person has successfully completed the ARD Program, the underlying criminal charges are legally dismissed. You may then file a petition with the court to have all records of the arrest expunged from your criminal record.

It is important to understand that expungement is not automatic following completion of the ARD Program. If you do not file a petition to expunge your record, potential employers or anyone else who investigates you will be able to find your DUI arrest and ARD disposition.

To expunge your ARD record, you must obtain a court order directing all criminal agencies to delete and destroy any records relating to your DUI charge and ARD disposition. It is important to retain an experienced DUI defense lawyer who will follow through to make sure that these PA and federal agencies comply with the terms of the expungement order and fully expunge their records.

House Arrest

One way to avoid jail is to serve the sentence on house arrest. Most counties offer house arrest in certain situations.

In Bucks County, the courts tend to be more amenable to imposing house arrest in DUI cases. In other counties, a person facing a DUI charge may be eligible to spend a large percentage of a sentence on house arrest if he or she is accepted into the Intermediate Punishment Program (“IPP”).

In the Commonwealth of Pennsylvania, the availability of house arrest largely depends on the judge to which the case is assigned. Certain judges are more likely to impose house arrest than others. In all cases, it is important to develop a convincing case for why society (and the defendant) would be better served by having the defendant serve his or her sentence at home.

Inpatient Programs

Another way to avoid jail is to successfully complete an inpatient substance abuse and/or mental health program. Under Pennsylvania law, a judge may give day-for-day credit for time served in an inpatient facility. However there is no requirement that judge grant such credit. If a person charged with a crime is considering an inpatient facility partly to avoid a jail sentence, it is important to know who the sentencing judge is going to be.

Pre-Trial Home Monitoring

Another scenario where attorneys may try to obtain “time-served” credit is where a judge imposes a bail condition that the person is essentially on home confinement (house arrest) pending trial.

In every criminal case, a judge sets bail. Sometimes the bail is “ROR” or “unsecured” in which case the person is released without having to pay cash or post security. In other cases judges will assign cash bail requiring the defendant to pay cash as a condition of release. Occasionally, a judge will impose a condition of bail requiring a defendant to stay in his or her home until the case resolves.

Under Pennsylvania law, as interpreted by the Pennsylvania Supreme Court, defendants are not entitled to credit against a prison sentence for time spent in home confinement as a condition of bail. Courts have interpreted “custody” to mean time spent in an institutional setting such as jail or, at a minimum, an inpatient facility. Accordingly, some judges will not grant credit for pretrial home confinement. However exceptions have been recognized a defendant was essentially assured that his time on home confinement would, indeed, count toward the ultimate sentence. Accordingly, it is important if pretrial home confinement is ordered, that there be some record that the defendant was “assured” that he would get credit for the time.

Pennsylvania DUI and License Suspensions

Most, but not all, individuals convicted of a DUI or admitted into the ARD Program for a DUI will incur a license suspension. This sanction is a PennDOT administrative action and is separate and apart from the criminal charges.

A person caught driving with a suspended license due to a DUI offense (including an ARD license suspension) faces a mandatory 60 or 90 day prison sentence, a significant fine and an additional one-year license suspension.

PennDOT considers a license suspension to officially begin when a person has submitted a non-duplicated PA driver’s license and/or a PennDOT DL-16 affidavit form. It is very important to work closely with your DUI defense attorney to make sure that everyone, including PennDOT, is on the same page regarding when the license suspension begins.

Ignition Interlock Limited License

In most cases involving a DUI conviction or admission into the ARD Program, PennDOT will automatically suspend your driver’s license. However, you may be entitled to a PA Limited License known as an Ignition Interlock License. This license enables you to drive legally for any purpose whatsoever as long as you are driving a car that is properly equipped with an ignition interlock device.

To receive an Ignition Interlock Limited License, applicants must strictly follow PennDOT’s application process. Please contact the Law Office of Erik Petersen in Montgomery County, PA, for further clarification.

Pennsylvania DUI Laws Regarding Restoring Your Drivers License

People who have lost their driver’s license due to a DUI conviction or a chemical test refusal need to address problems like getting to work, the potential loss of their job depending on their profession, and getting their kids, spouse or parents to school and medical or other appointments without a license.

Protect Your Driver’s Privileges

When people call my law office for help regarding a DUI, they are frequently most concerned about keeping their driver’s license. My name is Erik Petersen, and I am a DUI and criminal defense attorney in Montgomery County, Pennsylvania. I have represented hundreds of clients in their efforts to protect or restore their driver’s privileges or to obtain an occupational limited driver’s license.

If you have already been notified by the Pennsylvania Department of Transportation (PennDOT) that your license is suspended for a DUI violation or chemical test refusal, it is important to speak with an attorney immediately to determine whether it makes sense to file an appeal of the suspension. Any such appeal must typically be filed within 30 days of the notice of the suspension, so it is important to act quickly in consulting a lawyer. I can help.

Commercial Vehicles & School Buses DUI

The blood-alcohol limit is .04 percent for commercial vehicle operators and .02 percent for school bus drivers in the Commonwealth of Pennsylvania. For commercial vehicle and school bus drivers, any blood-alcohol concentration from this minimum up to .16 percent is punished the same as for violations in the middle tier (.10 to .159 percent). For BACs of .16 percent or higher, the highest tier applies.

Harsh DUI Penalties for Commercial Drivers License Holders

People who drive for a living — truck drivers, bus drivers, commercial van drivers and other commercial drivers — have a lot at stake when pulled over for DUI in PA. Individuals holding a commercial driver’s license (CDL) are held to much higher standards in Pennsylvania.

Strict DUI Laws for Commercial Drivers (CDL) in PA

Driving under the influence (DUI) can result in steep fines, jail time and license suspension, regardless of whether or not you are a commercial driver operating under a CDL. However, CDL drivers face strict rules regarding the legal limit, off-duty driving and penalties for DUI.

  • Legal limit: Commercial vehicle operators holding a CDL are bound by a reduced blood-alcohol limit of .04 percent (.02 percent for school bus drivers). Essentially, any amount of alcohol in a commercial driver’s system can result in charges for drunk driving.
  • Off-duty driving: Commercial drivers who are arrested or convicted for drunk driving — even when they are off-duty — face consequences to their CDL status and career. Not only do many trucking companies require truck drivers to maintain an impeccable driving record, any suspensions of a driver’s personal driver’s license will carry over to his or her commercial driver’s license. Additionally, if a commercial driver is found to have any measurable alcohol in his or her system, the driver can be forced to go off-duty for at least 24 hours.
  • First-offense CDL DUI consequences: CDL drivers convicted for first-offense drunk driving face DUI penalties of up to six months in jail and a one-year driver’s license suspension (for individuals with a BAC of up to .16 percent; a higher BAC will result in aggravated DUI penalties). CDL drivers face a one-year CDL license suspension even if they are admitted into the ARD Program. Additionally, if the driver was transporting hazardous materials at the time of the DUI arrest, the operator faces a three-year license suspension.
  • Repeat-offense CDL DUI penalties: DUI penalties rise exponentially for CDL drivers who are convicted for a second offense or subsequent offense DUI in Pennsylvania. DUI penalties can include increased jail time, and a permanent suspension of a commercial driver’s license (CDL).

Juvenile Pennsylvania DUI Offenders

Pennsylvania law provides for “zero tolerance” with respect to juvenile DUI offenders. The blood-alcohol limit in PA for persons under 21 is .02 percent. These cases can be problematic because a minor’s consumption of perfectly legal over-the-counter cold and cough remedies, many of which contain alcohol, can cause an elevated blood alcohol content of .02 percent or even higher.

Juvenile offenders may be eligible for admission into the ARD Program. They may also be eligible for dispositions that may be more beneficial than ARD such as an Informal Adjustment or a Consent Degree. Please contact me, Abington Pennsylvania DUI Attorney Erik Petersen in Montgomery County, PA, for more information about juvenile DUI defense.

Pennsylvania DUI Laws

There are severe penalties for persons convicted of breaking Pennsylvania DUI laws whether caused by alcohol or controlled substances. In most cases, a conviction for DUI carries with it mandatory jail time, a lengthy license suspension and a criminal record that can never be expunged. Fortunately, for first time offenders, Pennsylvania counties are permitted to enact an Accelerated Rehabilitation Disposition Program (ARD Program) that enables a person to avoid jail, avoid the lengthy license suspension and can result in a complete expungement of your criminal record.

It is important to hire a DUI defense attorney who understands the rights and options of anyone accused of a DUI and has the experience to earn you the best possible result.

I am Norristown, PA DUI Attorney Erik Petersen and I have been practicing criminal law since 1992. First, I was an Assistant District Attorney in Montgomery County for six years and have now been handling all types of criminal cases ever since. Over the years I have represented hundreds, if not thousands, of people charged with a DUI. My experience as a prosecutor at the Montgomery County District Attorney’s Office taught me how prosecutors evaluate and prepare DUI (and all) cases which has been invaluable to me in my private practice. I have helped many people obtain a positive result following a DUI arrest. Please contact the Law Office of V. Erik Petersen so that we may review and discuss your rights and options.

Pennsylvania Implied Consent Laws

Under Pennsylvania law, any person who holds a driver’s license is deemed to have given consent to have his or her blood alcohol content examined by analysis of breath, blood or urine. However, this is only true if police have reasonable grounds to believe that the person had been driving a motor vehicle while under the influence.

If a person refuses to take a blood-alcohol test where probable cause or reasonable grounds exist, their PA license will be suspended for at least 12 months and they will be deemed to a have a blood-alcohol content in the highest tier. This suspension is in addition to any suspension a person may receive for a DUI conviction or ARD disposition.

Frequently people choose to contest the issue of whether a person truly “refused” a BAC test. You should call me, DUI Lawyer V. Erik Petersen to discuss whether you should contest a DUI refusal suspension.

Did the police have probable cause to pull you over?

This is the first legal question that needs to be analyzed in any DUI case. I have won many DUI cases on this issue alone. The police need a legitimate reason or “probable cause” to pull you over or come in contact with you. Some scenarios are obvious such as when there is an accident or when the driver clearly violates the vehicle code. However, when probable cause is based upon things like swerving within your own lane of travel, briefly touching the fog line, police relying on an anonymous tip that a driver was driving erratically; dismissal of the charges can be pursued through what is known as a suppression hearing. As I mentioned above, I have won many cases by successfully arguing that the police unlawfully stopped my client and therefore all charges get dismissed.

The next legal question or issue is whether or not the police had probable cause to arrest the driver and request that he or she submit to chemical testing. The police attempt to build probable cause through the use of standard field sobriety tests and their overall observations of the driver during the traffic stop. It is important to note that a driver has an absolute right to refuse to perform the roadside sobriety tests.

Chemical test “refusals”

Let’s assume someone is properly pulled over and that standard field sobriety were given properly and the person failed them. Assuming those things, the motorist is most likely going to be handcuffed and placed into police custody. The next step in the DUI process is chemical testing of a person’s blood or breath. Prior to testing, the police must advise the person that they are requesting a chemical test of blood or breath. They must also advise the person that if they refuse the test their driver’s license will be suspended for at least 12 months. If a motorist refuses chemical testing after being properly advised of their rights, they will receive a 12-month (at least) license suspension. However, a motorist can appeal a refusal suspension as long as they file an appeal within 30 days of receiving an official notice of suspension. It is important to note that the 30-day appeal period is a strict deadline so if someone wants to appeal this suspension, they must act immediately. I have successfully appealed many refusal suspensions over the past 30 plus years.

If you have been accused of violating Pennsylvania’s DUI laws or refusing a chemical test, contact an attorney immediately. Call me, Attorney V. Erik Petersen to discuss your case.

Pennsylvania DUI BAC Limits

All Drivers: BAC Limit = 0.08%


It is crime in PA for ANY driver to drive with a BAC (blood alcohol content / concentration) of 0.08% and above.

Commercial Drivers (drivers with a CDL License): BAC Limit = 0.04%


It is a crime in PA for commercial vehicle operators (people with a CDL license operating a commercial vehicle) to drive with a BAC (blood alcohol content / concentration) of 0.04% or above.

Minors (defined as under the age of 21, not 18): BAC Limit = 0.02%

It is a crime in PA for persons under 21 years of age to drive with a BAC (blood alcohol content / concentration) of 0.02% or above.

Pennsylvania DUI Convictions and “Collateral Consequences”

Collateral consequences, or ramifications, are legal sanctions and restrictions imposed upon people because of something on their record or a specific conviction. A consequent is “collateral” as opposed to direct, because it is not directly intended as a result of the guilty plea or conviction.

DUI convictions in PA have a number of collateral consequences. By law, PennDOT must suspend a person’s driver’s license as a result of a conviction for DUI or a drug conviction. This license suspension is not a direct result of the plea — that is, it is not part of the plea bargain or sentence. It is a collateral consequence of the conviction — an indirect result of the DUI plea.

DUI offenses have collateral consequences that have a tremendous effect on people. PennDOT will suspend your license as a result of a DUI conviction and people with out-of-state driver’s licenses face license suspensions as well. In addition, anyone convicted of a second or subsequent DUI face longer license suspensions and ignition interlock requirements.

Blood Alcohol Content (BAC) Testing Laws Pennsylvania

Types of Blood Alcohol Testing

The two most common chemical blood tests are blood testing and breath testing. A third type, urine testing, is rarely used in PA. In each case, there are a number of specific legal procedures and protocols that the police must follow. Failure to follow these specific procedures and protocols can result in the dismissal of a DUI case or a reduction of the charges.

Blood Testing

Pennsylvania law requires hospitals and the physicians, nurses and technicians employed by hospitals to withdraw blood samples on DUI suspects unless there are emergency situations at the hospital at the time the request is made. Pennsylvania law also requires that blood (and urine) tests be performed at licensed and approved clinical laboratories using approved testing methods and equipment.

It is important to carefully examine blood test results to determine if the variance or margin of error may include the possibility that the true blood-alcohol content was in a lower tier or below 0.08 percent altogether. If a person’s blood-alcohol content is tested to be, say, 0.10 percent, no toxicologist (or prosecutor) can say with any certainty that the person’s actual blood alcohol concentration was above or below this level. Virtually every toxicologist will concede that there is a variance of 3 to 10 percent within which the actual blood alcohol content would likely fall. Importantly, the Department of Health requires laboratories conducting blood-alcohol testing to test within 9 percent of a “known sample” in order to maintain their accreditation. Accordingly, many toxicologists contend that the margin of error of blood testing at such accredited labs should be presumed to be no less that 9 percent.

Even if someone elects to seek admission into the Accelerated Rehabilitative Disposition (ARD) program or plead guilty to DUI it is important to evaluate whether the documented blood-alcohol content can be reduced using a margin-of-error analysis. Anyone charged with DUI should carefully review all of these issues with an experienced criminal defense attorney.

Breath Testing

Police frequently test blood-alcohol content by subjecting the motorist to a “breathalyzer” machine. These machines are different from, and much more sophisticated than, the “portable breath test” units police use to test blood-alcohol content at the scene of the stop. To be admissible at trial, breath tests must be conducted in conformity with regulations set forth by PennDOT.

These regulations require the machine to be regularly calibrated, the person operating the test to be certified, a 20-minute observation period prior to the testing, and two breath samples taken within a prescribed period of time. The two breath test results must be within 0.02 percent of each other. A failure of the police to comply with any of these regulations can result in the results being suppressed (ruled inadmissible) at trial.
As with blood testing, breath test results have a margin of error that should be considered in determining a person’s actual blood-alcohol content. Persons charged with DUI must discuss these important issues with their attorney.

What Can Be Wrong With DUI Blood Alcohol Tests (BAC)?

A DUI defense lawyer needs to understand the steps the police must follow to properly test for a person’s blood alcohol content. As an example, the police cannot permit an unreasonable amount of time to pass between your arrest and the administration of the blood alcohol test. If considerable time passes between the stopping of your vehicle and the actual blood test, more alcohol can be absorbed into your system, which can make your BAC substantially higher than it was when you were driving.

It is important to examine any blood alcohol testing evidence closely. The scientists who conduct the chemical testing of your blood, known as forensic toxicologists, agree that there is a potential margin of error that often can help fight charges of driving while under the influence (DUI). This is an area of the law in which I have considerable knowledge and I am often able to argue persuasively on behalf of a client charged with DUI.

Please remember that you are not guilty just because the police say so. Please call a Montgomery County DUI Defense Attorney who is experienced in handling DUI cases. I will explore every avenue that may be available to challenge the blood alcohol content (BAC) or any other evidence against you in your DUI case.

Breath Test Defense: Breath Tests Can Be Considered Unreliable

It is important to retain a lawyer who is familiar with these DUI breath testing procedures and protocols as well as the various steps the police must strictly follow. Issues and concerns that need to be addresses in court are:

  • Was the test properly given?
  • Was the person who administered the test properly trained?
  • Has the breath test machine been properly tested and maintained?
  • Is there other evidence that can refute that you were intoxicated?

As with blood testing, breath test results have a margin of error that should be considered in determining a person’s actual blood-alcohol content. Persons charged with DUI must discuss these important issues with their DUI defense attorney.

You can be confident that as your DUI defense attorney I will explore every aspect of the prosecution’s case against you as I seek to refute or minimize the allegations in your case.

Field Sobriety Tests

Standardized Field Sobriety Tests were developed as the result of research conducted in the mid 1970s for the National Highway Traffic Safety Administration (“NHTSA”). The purpose of this research was to develop standardized tests which would provide a reliable method of determining intoxication from field sobriety tests.

The NHTSA has concluded that three tests, if systematically conducted according to strict guidelines, can predict whether a person may be under the influence of drugs or alcohol. The only three field sobriety tests approved by the NHTSA are the Horizontal Gaze Nystagmus (“HGN”) test, the Walk-and-Turn test the One-Leg Stand test.

Police officers are theoretically trained to look for established “scoring factors” or “clues” which must be evaluated in determining whether or not intoxication exists. A finding of intoxication can only arise once a certain number of clues are identified. If less then the certain level of clues are identified, the officer should conclude that there a high degree of probability of non-intoxication.

For cases that proceed to trial, it is important for defense counsel to carefully question police officers with respect to their field sobriety test training and adherence to NHTSA protocols. If a police officer is unsure of these protocols and/or the NHTSA-approved indicator system, his or her conclusions can lose credibility with a judge or jury.

Horizontal Gaze Nystagmus (“HGN”) Test

Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes rotate in the socket. In theory, a sober person can visually follow a moving object smoothly and without the eyeball “stopping and starting”. With a person is impaired by alcohol, nystagmus is exaggerated resulting in a jerking motion as the eyes rotate. In the HGN test, the officer observes a person’s eyes as the eyes follow a slowly moving object such as a pen or small flashlight. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. The NHTSA has concluded that if, between the two eyes, four or more “clues” appear, the suspect likely has a BAC of 0.10 or greater.

It is important to note that even the NHTSA acknowledges that the HGN testing allows for the proper classification of only 77 percent of suspects. That is, the HGN test will result in many false positives and cannot be considered a reliable indicator of intoxication. Indeed, the HGN is not admissible in Pennsylvania courts although police are permitted to use the test to establish probable cause to arrest. People taking medication such as seizure and psychiatric medication may also “fail” the HGN test even though they are not intoxicated.

Walk-and-Turn Test

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven possible indicators, or “clues”, of impairment. If two or more clues are identified, a person is considered to be likely intoxicated.

It is important to note that even the NHTSA concedes that only 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. It is also important to note whether a person has some reason unrelated to intoxication – such as a physical disability, high-heeled shoes, use of prescribed medication, obesity, advanced age – that makes it more difficult to complete the test. It is very important to point out these issues to a judge or jury when a case goes to trial.

One-Leg Stand Test

In the one-leg stand test, a person is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one thousand-one, one thousand-two, etc.) until told to put the foot down. The NHTSA protocols call for the officer to observe the subject 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.

Prosecutors sometimes argue that a person’s “failure” of field sobriety tests such as the one-leg stand test conclusively prove a person’s intoxication. However the NHTSA itself admits that only 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. And, like the walk-and-turn test, there are many factors other then intoxication that can make it difficult for a person to stand on one foot for 30 seconds.

Examining Field Sobriety Test Evidence

It is important to carefully examine field sobriety test evidence. In many – if not most – instances, police officers do not administer the test in full compliance with NHTSA guidelines. For example, an officer’s opinion should be considered suspect if he uses improper scoring criteria, was improperly trained, incorrectly instructed the suspect on how to perform the test or did not use the standardized methodology in performing the tests. Cross-examining police officers with their own training manuals frequently exposes their lack of knowledge and skill in conducting these tests. At trial, all of these factors must be fully explored so that a judge and/or jury understand the fallibility of field sobriety testing.

Aggressive and Thorough DUI Defense in PA

If you are charged with DUI as a result of having alcohol, prescribed medication or illegal drugs in your system, you face a strong legal challenge that I am well-equipped to handle on your behalf. I will comb through every aspect of the evidence against you, using my many years of experience in the field of criminal law as both a prosecutor and a criminal defense attorney.

A good DUI alcohol or drug defense involves a criminal defense lawyer who knows how to take every potential piece of evidence against you and examine it thoroughly for mistakes, weaknesses or technical flaws. In the case of controlled substances that have been legally prescribed, I will make it clear to the prosecution that your medication may actually result in your ability to function — and operate a motor vehicle — on a better level.

One step I frequently take is to engage a toxicologist to evaluate the BAC and/or drug toxicity levels to determine whether any prescribed drug was at a therapeutic level. Other areas of attack include the following:

  • Did the officer perform an illegal search and seizure?
  • How did you come to be pulled over, and was the stop legal?
  • Did you feel intimidated by the police at any point in the process?

I have noted over the years that in virtually every DUI case, I am representing a good person caught in a difficult situation. DUIs are a crime that just about anybody can commit (unless you don’t drink or use prescribed medication) and almost everybody facing this charge is very remorseful and determined to make positive change in the future. People in this situation need an attorney who will understand their situation and is prepared to aggressive defend the DUI charge or, if appropriate, seek out the best negotiated resolution (such as admission into the ARD Program).

Defending Pennsylvania DUI Cases

If you are facing a DUI charge, you should exercise your right to appropriate legal representation and hire a criminal defense lawyer who can help you get the best possible result. At the Law Office of Erik Petersen, I have an extensive legal background in DUI cases — based on my years as a prosecutor in the Montgomery County District Attorney’s Office and as defense attorney for many years– and am ready and willing to represent you to make sure you get the best possible result on your DUI case.

One difficulty with Pennsylvania DUI laws is that the higher the alcohol content in your blood, the more sever the penalty is is you are convicted of DUI. However PA law — and the Constitution — require the police and prosecutors to follow follow the rules in making arrests and preparing cases for prosecution. It is important to have a criminal defense attorney who knows the rules and laws and is able to identify possible defense issues.

I can help you understand your options regarding DUI cases and seek to minimize the consequences of your DUI arrest. Topics for discussion with every client include the following:

  • Is there evidence that ought to be thrown out?
  • Do you need to fight through to trial?
  • Are there extenuating circumstances relating to your DUI situation?
  • Do you need to have a car to keep your job and your family life stable?
  • Were you truly impaired and driving under the influence?
  • Is the Pennsylvania ARD Program an option for you?

I work closely with clients to identify potential defenses and/or the best possible negotiated result. I pride myself on taking time to explain various options to my clients and return phone calls and emails quickly. Please feel free to contact the Law Office of Erik Petersen

Dashcam and Bodycam evidence

In this day and age, most local police departments and the Pennsylvania State Police have dashcams in their patrol vehicles and/or body cams attached to their vests. I always request a copy of these videos as that is a way to test the truthfulness of the arresting officer’s allegations.

I have won several suppression hearings and trials through the use of the dashcam video. However, obviously, there are times when the dashcam video does not help my client. In such cases negotiating a favorable outcome is still possible.