PHILADELPHIA JUDGE RULES DEFENDANT NOT IN VIOLATION OF IMPLIED CONSENT, OVERTURNS LICENSE SUSPENSION

All licensed drivers in Pennsylvania are subject to the state’s Implied Consent law, which states:

“Any person who drives, operates, or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood, or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating, or in actual physical control of the movement of a motor vehicle.”

Refusal of chemical testing warrants an automatic one-year suspension of driving privileges, regardless of the outcome of the DUI case. The officer must read the suspect his or her O’Connell Rights which inform the suspect of the implied consent law, as well as his or her right to appeal, etc. Pennsylvania case law defines refusal of chemical testing as “anything substantially less than unqualified, unequivocal assent to chemical testing.”

Edward Solomon was awakened by Philadelphia police who found Solomon asleep in the driver’s seat of his vehicle on a cold, snowy night in January of 2007. The vehicle was parked in between a parking lot and a nightclub at approximately 3 am; the area was frequently used for parking. Although the engine was running, the car was in park, headlights were off, and there was no evidence that the car had been moved or that Solomon intended on doing so. Upon questioning, Solomon told the officer that he had a few drinks at the nightclub, and because it was snowing, went to his vehicle to sleep; the engine was running so that he could use the heater to keep warm. The officer arrested Solomon for Driving under the Influence and took him to the station for chemical testing. The officer’s testified that upon arrival at the station, Solomon was read his O’Connell warning to which he responded, “Go f— yourself and do what you’ve got to do.” Solomon testified that he was upset with the officer because the officer would not tell him why he was being arrested. Nevertheless, the officer perceived the remark as a refusal, subjecting Solomon to the 1-year automatic suspension.

On appeal, the Court reviewed two issues: Whether Solomon was operating or in actual physical control of his vehicle in order to merit the DUI, and whether Solomon in fact refused chemical testing. Pennsylvania case law has ruled in many instances that driver’s found asleep in their running vehicles are subject to DUI, however the standard used to determine control is a totality of the circumstances. In this instance, the Court found Solomon’s testimony believable, in that the only reason the car was running was for the heater. Further, the car was found in a designated parking area with no evidence that it had been moved. The court further found that “do what you’ve got to do” was enough to show acceptance of chemical testing, and that although the officer may have been offended, Solomon’s comment was not a refusal. Therefore, both the DUI conviction and license suspension were overturned.

Drunk Driving

Driving under the influence in Pennsylvania is a serious matter, as it is in every state, and carries minimum penalties required by Pennsylvania statute. The mandatory minimum is based on elements of the conviction, with increases in the mandatory minimum based on any previous conviction for DUI or comparable offense within the past ten years. Penalties can range from 6-months probation to up to one year in prison; along with other fines and penalties.

If you have been arrested for Drunk Driving, DUI, DWI, or Underage Drinking, contact a Philadelphia Criminal Defense Attorney immediately. There are defenses which are available to you, which can reduce or eliminate penalties associated with these charges.