22nd Dec 2014

When a person is stopped in Pennsylvania because an officer believes the driver is under the influence, the police may request performance of field sobriety tests, a portable breath test and possibly submit to a Breathalyzer or chemical test (usually blood). Pennsylvania law includes an implied consent to chemical testing, usually a Breathalyzer or blood testing. This guide reviews what occurs when drivers undergo chemical testing. However, if you have refused to undergo chemical testing, issues arise which will be dealt with in a future guide.

Receipt of a criminal complaint via regular and certified mail.

     Within a couple of days of the incident, police file a criminal complaint. The criminal complaint contains the charge(s) and an affidavit of probable cause.

The charge section includes violations believed to have been committed. These violations contain the reason for the encounter; (1) if a vehicle stop, there will be a violation of the vehicle code or (2) if the encounter was due to a violation of the crimes code, then the section or sections of the code will be listed.

The affidavit of probable cause is the officer’s recollection of the incident. Information about each of the violations in the complaint is applied to the specific facts as recalled by the officer. The affidavit must demonstrate each violation, its elements and identify the person charged as the offender.

The complaint is sent via regular mail and certified mail to ensure delivery, unless it was given on the date of the encounter. The purpose for dual delivery is to ensure receipt. It is determined that the complaint was delivered properly when the certified mailing is not delivered but the regular mail was not returned undeliverable.

Additional notices within the initial Court mailing.

     The Court documents sent include several important notices other than the criminal complaint. The other notices may include a fingerprint order, notice of a preliminary arraignment and hearing, and notice of your access to the public defender’s office.

The fingerprint order contains the dates requiring submission of fingerprints to the arresting police agency. If you were fingerprinted at the time of the incident, it is not necessary to be re-fingerprinted.

The notice of the preliminary arraignment and hearing will list the date of your first appearance at the Magisterial District Court. This will have the date, time and location for this court hearing.

Under the Federal and State Constitutions, all people are afforded the opportunity to have legal counsel. Therefore, the courts will include a notice of the ability to apply for a public defender if you are unable to afford a private attorney. If you believe you would qualify for the public defender, it is imperative to schedule an appointment as soon as possible to avoid any unnecessary delay. Keep in mind when you apply for a public defender you will be required to demonstrate income through pay stubs and possibly prior year(s) tax returns.

Preliminary Arraignment

A preliminary arraignment can be held at the time of the incident or prior to the start of a preliminary hearing. This first hearing held before a judge, usually a Magisterial District Judge, is where a person accused of committing a violation of the crimes or vehicle code is advised of the alleged violations of the code(s), their rights to be represented by legal counsel, and right against self-incrimination (right to remain silent). The judge will also request information from the person charged about their current address, level of education, employment status, military service and any prior criminal convictions.

After a court receives the above listed information a Judge will set bail. In Pennsylvania, bail can be attached in the following ways:

  1. ROR – means you are being released on your own recognizant and there is no reporting required or monetary requirement. The judge essentially believes you will be present as required without additional requirements.
  2. Unsecured Bail – means you are being released but the Judge will place a monetary amount ensuring future presence for court. No payment is required unless you fail to adhere to Court orders. Failure to adhere will result in payment of the money or incarceration. Additionally, a bail bond will be prepared and be signed by you acknowledging the unsecured amount to be posted if you fail to attend.
  3. Secured Bail – This occurs when the Judge requires a monetary deposit to ensure presence throughout prosecution. The Judge may request straight cash or allow a 10% payment. If you are unable to post the amount, you will be incarcerated until the preliminary or a bail hearing is held. This is unusual in DUI cases. Bail will be discussed in a future guide.

Preliminary Hearing

     The preliminary hearing is the first time the Court will be provided with evidence of the crimes charged in the criminal complaint. The prosecution in the Commonwealth of Pennsylvania must prove each element of each violation following the prima facie standard. Prima facie is an extremely low standard meaning the prosecution must demonstrate each element of each of the violations in the complaint and it is more likely than not the person charged committed the crime. In lay terms, this is a 50.1% chance of the prosecution being correct with all reasonable inferences in their favor. This hearing can have lasting implications and an attorney should be retained prior to the date. Experienced attorneys may advise clients to waive the hearing due to the possibilities of entering an alternative program or future negotiation. Further explanations of the Preliminary Hearing are available upon request and will be released in a future guide.

Alternative Dispositions

     When a person is charged with driving under the influence in Pennsylvania, there are a number of alternative programs available which may lessen the impact of penalties.

First, a program called the Accelerated Rehabilitative Disposition (ARD) is mainly for first time offenders or those who have no offenses within the last ten years. Second, certain counties allow prior offenders to be admitted into Drug Court. Third, repeat offenders could apply for entrance into a Recovery Court program. Finally, if a case involves a guilty plea or a person is found guilty at trial, a person may be eligible for an Intermediate Punishment Program. These programs will be discussed at length in a future guide.

As with any of the guides submitted by the Rudolph Law Firm, this does not constitute legal advice or does it create an attorney client agreement. If you require additional information or have specific questions, please contact the Rudolph Law Firm at www.RudolphLawFirm.com or call 267-282-1033.

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