Blood Evidence and the 2 Hour Rule in DUI Cases

Whiskey with car keys and handcuffs concept for drinking and driving

A blood sample is often a key piece of evidence in a DUI case. While you can refuse to supply a blood sample after an arrest, you risk a one year license suspension simply based on your refusal. The license suspension is a civil sanction carried out by the Pennsylvania Department of Transportation (PENDOT) and therefore outside the scope of a criminal prosecution. Therefore, the Pennsylvania District Attorney could withdraw charges against you and still suspend your license simply because you refused to submit to a blood test. Therefore, I never recommend refusing a blood test under any circumstance since it is better to have your attorney dispute the admissibility of the blood test with pretrial motions and arguments at trial. This article, however, focuses on the use of blood after a certain period of time.

The Pennsylvania DUI statute section 3802(a) (1) does permit the Court to convict someone based on general impairment without the presentation of blood evidence but if the prosecution is pursuing a case under general impairment it forces the prosecution to rely on the testimony of a law enforcement officer and his subjective observations at the time of the alleged incident. Subjective observations, unlike objective blood evidence, are open to interpretation since there are several reasons to explain the unusual movements of an automobile or a person’s demeanor following a traffic stop on a suspicion of DUI.

The presentation of blood evidence at a DUI trial requires the prosecution to present testimony regarding the analysis of whole Blood Alcohol Content (BAC). It is important to understand that to calculate whole BAC, the prosecution must present evidence which mathematically converts blood serum to whole blood BAC utilizing a predetermined conversion factor. In other words, the officer must get your blood drawn and have your BAC tested within two hours after you last drove. If the arresting officer does not obtain your BAC within two hours, the prosecution must show your BAC using a Breathalyzer or the presence of another prohibited substance outside the two hour limit. Next, the prosecution has to show good cause why a blood test could not be obtained within two hours. Finally, it has to prove that you did not ingest any alcohol or drugs between the time of arrest and the time the sample was obtained.

This makes the case much harder for the prosecution but even if the judge allows the prosecutor to go forward, you must fight the good cause showing why the officers could not take your blood test within two hours. If the prosecution shows that the delay was your fault, the judge will rule against you.

It is important to remember, however, that in many DUI cases a person’s BAC level is just above the percentage cutoff and so a successful defense argument could lead to a full acquittal or, in the alternative, a conviction for a lesser offense under the statute allowing a person to avoid jail time and a license suspension in some cases. If you are charged with a DUI contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

What Do I Do If I Get a DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) in Pennsylvania?

Man with drink being handed car keys
If you are facing a first offense DUI charge in Pennsylvania you may be want to consider an alternative program to the traditional criminal court case and that is known as the ARD program. ARD stands for Accelerated Rehabilitative Disposition.

The ARD program was implemented by Pennsylvania to accelerate the court process in criminal cases such as first offense DUI’s that would not jeopardize the general public’s safety if the defendant were released back into society.

Pennsylvania saves time and court resources and the defendant can have their DUI expunged from their criminal record two years after they are accepted into the ARD program.  Please contact Spadea & Associates, LLC to assist you in getting the record expunged.

Only first time DUI offenders in Pennsylvania may be eligible for the ARD program. The district attorney makes the decision as to whether or not a defendant will be admitted into the ARD program. Just because you are facing a first offense DUI charge does not mean that you are automatically admitted into the ARD program.

The new penalties enacted in February 2004 fall into a new three tier punishment system for DUI’s throughout Pennsylvania.

Tier 1: Tier 1 is considered General Impairment. General impairment is meant to describe those with BAC levels between .08% and .099%, and no property damage resulting from the DUI offense.

1st Offense DUI: No loss of driving privileges, six months maximum of probation, fine of $300 dollars, attend and complete safe driving classes, complete a drug and  alcohol evaluation, complete a 30 minute CRN evaluation and  complete 8 to 16 hours of community service .

Tier 2: Tier 2 is considered a high rate of blood alcohol. This is for those with BAC levels between .10% and .159% (the BAC level must be measured within 2 hours of actually operating the vehicle), and those with resultant property damage or personal injury from the DUI offense. Even those with General Impairment BAC levels (less than .10%) can be placed in the Tier 2 category if there was property damage or personal injury.

1st Offense DUI: driver’s license suspended for 12 months (occupational license eligibility after 60 days), jail time from 48 hours to 6 months, fine between $500 – $5,000, attend and complete safe driving classes, complete a drug and alcohol evaluation, complete a 30 minute CRN evaluation, complete 16 to 32 hours of community service.

Tier 3: Tier 3 is reserved for the highest BAC level offenders. A Blood Alcohol Concentration of .16% or greater that is measured within 2 hours of operating a motor vehicle will land you in a Tier 3 status. Anyone who refuses to submit to a chemical test and have their BAC measured will be placed into Tier 3 status as well. In addition to a high BAC, any illegal drug will also land you in Tier 3 status.  Note if you have a prescription drug without a valid prescription it is considered an illegal drug.

If you are found guilty of first offense DUI you will have your  driver’s license suspended for 12 months (occupational license eligibility after 60 days), jail time between 72 hours and 6 months, fines between $1,000 – $5,000, attend and complete safe driving classes, complete a drug and alcohol evaluation, complete a 30 minute CRN evaluation and complete 32 to 64 hours of community service.

What happens after I get my preliminary hearing court date?

If your attorney cannot get the DUI charges dismissed you should waive your preliminary hearing and submit your ARD application as soon as possible and within three weeks of your arraignment date. Usually five weeks after the preliminary hearing date you have an Arraignment which is also waived unless you receive notice from us that your ARD application has been denied.

A few weeks after the scheduled arraignment date, you will be sent a certified mailing advising of the back-up pre-trial conference date (usually six months after the arraignment date) and the name of the judge assigned to the case.   The reason why the pre-trial conference date is set so far in the future is to allow sufficient time for the District Attorney’s office to review the ARD application.  Generally, ARD hearings are scheduled anywhere from 3 to 6 months after the arraignment date.  If the ARD hearing is not scheduled or if ARD is rejected, you must come to court for the Pre-Trial conference.

After you arraignment date if you do not receive a removal letter from the District Attorney,  you should try to complete 8 hours of community service as well as complete the drug and alcohol evaluation  and CRN evaluation, and safe driving course  prior to your ARD hearing date and pay all the fines if you can.  If you do receive a removal letter contact Spadea & Associates, LLC immediately.  If you cannot pay the total fines by the ARD hearing date you can get on a payment plan.

Occupational Drivers License Application Process in Pennsylvania

A form from the DMV suspending a driver's license.

Anyone arrested for drunk driving in Pennsylvania can expect to have their driver’s license suspended. Other serious traffic violations can also result in a suspension, but many drivers can avoid the worst consequences of an interruption in their driving privilege by applying for an Occupational Limited License (OLL) before or after their suspension has begun.

Not all drivers will qualify for an OLL. For example, if you have driven on an occupational license in the last five years, you are ineligible to apply for another one. Certain specified violations will also disqualify the driver from a conditional or limited license during a period of suspension. To understand your eligibility for an OLL during your suspension, discuss your situation with an experienced Pennsylvania traffic violations lawyer. Contact the law firm of Spadea & Associates, LLC, in Ridley Park for a free initial consultation about your specific situation.

Find Out if You Are Eligible for an Occupational Limited License

Working with Spadea & Associates, LLC on your drivers license suspension issues can offer many advantages. First of all, you can coordinate your defense on the criminal charge with your driver’s license protection strategy. If the offense charged against you is of a kind that will disqualify you from an occupational license, we might be able to find a way to negotiate a plea to a different charge that will protect your ability to drive.

Next, Spadea & Associates, LLC can give you a specific idea of what to expect at every stage of the process in terms of cost, timing and the critical details that can make or break an application for limited driving privileges. When you have an accurate understanding of your rights and the procedures involved in activating them, you will avoid mistakes and the waste of time or money involved with solutions that cannot work.

Many violations will disqualify the driver from an occupational limited license, and you should get a clear idea of your legal and practical options if you are charged with any of a number of disqualifying criminal or motor vehicle offenses, including:

  • DUI or refusal to submit to alcohol testing (both with certain exceptions)
  • Homicide by vehicle
  • Underage alcohol violations (with certain exceptions)
  • Unlawfully passing a school bus
  • Reckless driving
  • Fleeing a police officer
  • Driving on a suspended license (with certain exceptions)
  • Failing to maintain financial responsibility, or driving without insurance

CDL holders need to understand that there is no way to recover commercial driving privileges through the OLL process, but they can still apply for an occupational license to permit restricted operation of their own private vehicles.

Understanding the Occupational Limited License (OLL) Application Process

Applications for the OLL are made by certified mail to the Pennsylvania Department of Transportation in Harrisburg mail. To protect your interest in driving without interruption, you need to make your application on the Occupational License Petition form at least 20 days before your suspension is due to begin. The petition must be accompanied by an application fee and proof of insurance.

Assuming that the application is submitted in correct form by a driver eligible for an occupational license, PA Department of Transportation’s decision to grant or deny the OLL will be based on the applicant’s driving record and current violations. If granted, you will be notified that your current license will be valid for a limited period pending your surrender of the license and your receipt of the occupational license. You send your current license, once again by certified mail, within 15 days of receiving your notice of approval.

If your application has been denied, you have the right to an administrative appeal and a hearing. It can be difficult to win an appeal of an unfavorable decision on an occupational license petition, however, and you should seek legal advice before pursuing any appellate rights.

Contact Spadea & Associates in Ridley Park: 610-521-0604

To learn more about the eligibility standards and application process for occupational drivers licenses during a period of suspension in Pennsylvania, contact the law firm of Spadea & Associates in Ridley Park. To find out more about our firm and our approach to client service, visit our website at

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