The blood alcohol concentration (“BAC”) is often the main thing that determines the seriousness of your DUI charge in Pennsylvania. There are three levels, also call “tiers”, of DUI. For adults, they are:
- .08 up to but not including .10 (“lowest rate”)
- .10 up to but not including .16 (“high rate”)
- .16 and higher (“highest rate”)
What happens if your BAC is exactly .10 or if it is .101? Are you in the “lowest rate” level or the “high rate” level? If you don’t approach the issue the right way, you will be in the “high rate” level.
What can be done? The blood test doesn’t lie, does it?
Blood tests are not perfect. Even the test methodology used by the Pennsylvania State Police lab or NMS Labs, while pretty precise, has something called a “margin of error.”
The margin of error in the gas headspace chromatography blood alcohol test used by the Pennsylvania State Police and NMS Labs is about 3%. In some cases, you can use this margin of error to have your DUI charge reduced from one level to a lower level.
Why is this important?
Assume your BAC result came back as a .160 and you have a prior DUI resolved by ARD five years ago. If you plead out your case as a second offense DUI at the highest level BAC, you are looking at five years of probation, a mandatory 90 day jail sentence, roughly $2,400.00 in probation supervision costs, loss of license for 18 months, and a fine.
If you can get the charge reduced to a second-tier “high rate” BAC, you are looking at 6 months of probation (a reduction of 4.5 years), a license suspension of 12 months (reduced by 6 months), and probation supervision costs of $240.00 (a reduction of $2,160.00), and a mandatory jail term of 30 days (a reduction of 60 days).
While the mandatory jail terms can be minimized in York County using options like intermediate punishment, DUI Treatment Court, or in-patient treatment credit time, the reduction in supervision from 5 years to 6 months is a massive benefit. Walking off six months of probation is one thing. Walking off five years is another thing altogether.
To make this happen, you are going to need to hire a toxicologist who is familiar with blood testing procedures and with York County courts generally. Neighboring counties and their policies with “margin of error’ cases are all over the map. Adams County requires an expert report from a toxicologist. Cumberland County sometimes will concede the margin of error where the facts of the case are not terrible and where the defendant has “taken responsibility” for their DUI.
This is not something that you can walk into court and negotiate on your own with a police officer or the district attorney. There is no rule requiring you to hire a lawyer to manage a margin of error case for you just as there is no rule preventing you from performing surgery on yourself, but it’s a pretty good idea.
Here are some ranges of BAC where the margin of error of the blood test is probably a legitimate issue;
- .080 up to .082
- .100 up to .103
- .160 up to .164
One important issue about low BAC levels: You CAN be charged with a DUI in Pennsylvania even if you are 21 and your BAC is not 0.08. Some departments have filed alcohol-only DUI charges in York County with BAC levels as low as .056 on what is called “general impairment.” Getting below .080 is not a magic bullet that will make your DUI charge go away. It can help, but the battle is not necessarily over.
If your BAC is in one of the ranges listed above, you should call (717) 848-8455 to set up a free in-office consultation with York DUI lawyer Joseph N. Gothie to discuss how “margin of error’ can help in your case.