DUI Defense and ALS Appeal Package — Pennsylvania

DUI DEFENSE AND ALS APPEAL PACKAGE — PENNSYLVANIA

TABLE OF CONTENTS

1. Case Intake and Critical Deadlines
2. License Suspension Appeal to Court of Common Pleas
3. Demand for Discovery (Pa. R. Crim. P. 573)
4. Omnibus Pretrial Motion to Suppress (Pa. R. Crim. P. 581)
5. Petition for Ignition Interlock Limited License (IILL)
6. Plea Negotiation, ARD, and Sentencing Matrix Worksheet
7. Pennsylvania Implied Consent Law Summary
8. Practice Notes and Citations

1. CASE INTAKE AND CRITICAL DEADLINES

Client: [________________________________]
PA DL Number: [________________________________]
Date of Arrest: [__/__/____]
Date of PennDOT Notice of Suspension (Mailing Date): [__/__/____]
ALS Appeal Filing Deadline (mailing + 30 days): [__/__/____]
Arresting Agency: [________________________________]
Arresting Officer / Badge No.: [________________________________]
County of Arrest: [________________________________]
Magisterial District / Court of Common Pleas Docket: [________________________________]

Charged Sections:

2. LICENSE SUSPENSION APPEAL TO COURT OF COMMON PLEAS

IN THE COURT OF COMMON PLEAS OF [COUNTY] COUNTY, PENNSYLVANIA
CIVIL DIVISION

NOTICE OF STATUTORY APPEAL FROM LICENSE SUSPENSION

TO THE PROTHONOTARY:

NOW COMES Appellant, [LICENSEE NAME], by and through undersigned counsel, and pursuant to 75 Pa.C.S. § 1550, 42 Pa.C.S. § 5571(b), and Pa. R.A.P. 1701, files this statutory appeal from the Notice of License Suspension issued by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, and avers as follows:

1. Appellant is [NAME], residing at [ADDRESS], holding PA driver license no. [________________________________].

2. By Official Notice dated [__/__/____] (a copy of which is attached as Exhibit A), PennDOT notified Appellant of the suspension of his/her operating privilege for [____] months, effective [__/__/____], based on:

☐ Refusal to submit to chemical testing under 75 Pa.C.S. § 1547(b)(1);
☐ Conviction of 75 Pa.C.S. § 3802 — [tier] — § 1532(b)(3);
☐ Other: [DESCRIBE].

3. This appeal is filed within 30 days of the date of the Official Notice as required by 42 Pa.C.S. § 5571(b) and 75 Pa.C.S. § 1550(a).

4. Grounds for Appeal:

(a) PennDOT cannot meet its burden under Banner v. PennDOT, 737 A.2d 1203 (Pa. 1999) to establish each element required by § 1547(b):

• That Appellant was placed under arrest for violation of § 3802;
• That the arresting officer had reasonable grounds to believe Appellant was operating a vehicle in violation of § 3802;
• That Appellant was asked to submit to chemical testing;
• That Appellant refused to submit;
• That Appellant was given the proper warnings as required by § 1547(b)(2) and Birchfield v. North Dakota, 579 U.S. 438 (2016).

(b) The DL-26B (or DL-26) chemical test warnings used were defective, post-Birchfield, in that [DESCRIBE]. See Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017); Commonwealth v. Bell, 211 A.3d 761 (Pa. 2019).

(c) The arrest was unlawful (no reasonable grounds / probable cause).

(d) Appellant did not refuse — Appellant's conduct was an attempt or inability rather than a refusal.

(e) Such additional grounds as may be developed in discovery and at hearing.

5. Supersedeas. Pursuant to 75 Pa.C.S. § 1550(b)(1), the filing of this appeal operates as a supersedeas, and Appellant's operating privilege is restored pending de novo hearing.

WHEREFORE, Appellant respectfully requests that this Honorable Court:

A. Schedule a de novo hearing;
B. Sustain the appeal and rescind the license suspension; and
C. Grant such other relief as is just.

Date: [__/__/____]

Respectfully submitted,

[ATTORNEY NAME], PA Atty. ID No. [________]
[FIRM NAME]
[ADDRESS]
[TELEPHONE] | [EMAIL]

CERTIFICATE OF SERVICE

I certify that on [__/__/____], a true copy of the foregoing was served upon:
Office of Chief Counsel
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68675
Harrisburg, PA 17106-8675

[ATTORNEY SIGNATURE]

3. DEMAND FOR DISCOVERY (Pa. R. Crim. P. 573)

IN THE COURT OF COMMON PLEAS OF [COUNTY] COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

DEFENDANT'S MOTION FOR PRETRIAL DISCOVERY AND INSPECTION
(Pa. R. Crim. P. 573)

TO THE HONORABLE COURT:

Defendant, by counsel, requests the Commonwealth to permit inspection, copying, or photographing of the following pursuant to Pa. R. Crim. P. 573 and Brady v. Maryland, 373 U.S. 83 (1963):

1. Mandatory Disclosures under Rule 573(B)(1):
   - Defendant's confession or admissions;
   - Defendant's prior criminal record;
   - Co-defendants' statements;
   - Results of identification procedures;
   - All scientific and forensic testing reports;
   - Brady/exculpatory materials.

2. Discretionary Disclosures under Rule 573(B)(2):
   - Names and addresses of eyewitnesses;
   - All written or recorded statements of any witness;
   - Tangible objects intended to be used at trial;
   - Expert witness reports and qualifications.

3. DUI-Specific Materials:
   - DUI investigation report (Form 75-3818 or agency equivalent);
   - All offense, arrest, and incident reports;
   - MVR (in-car) and BWC (body-worn camera) video, native format;
   - Booking/processing video;
   - 911 audio and CAD/dispatch logs;
   - Field sobriety test administration records and officer NHTSA SFST certification;
   - Preliminary breath test (PBT) records, if any;
   - DL-26B chemical test warning form actually read to Defendant.

4. Breath Testing:
   - Breath testing instrument (Intoxilyzer 8000, Datamaster DMT) records;
   - Calibration certificates (most recent and 6-month);
   - Simulator solution lot certification;
   - Operator certification under 67 Pa. Code Chapter 77;
   - 20-minute observation log;
   - Test record / printout.

5. Blood Testing:
   - Search warrant or consent documentation;
   - Phlebotomist credentials;
   - Chain of custody;
   - Hospital records, if drawn at medical facility;
   - Crime laboratory or hospital lab analytical report, chromatograms, analyst notes;
   - Lab accreditation and proficiency testing.

6. Brady / Giglio Material — All evidence favorable to Defendant on guilt, punishment, or impeachment of Commonwealth witnesses.

7. Prior Offenses Discovery. Materials concerning any alleged prior DUI within the 10-year lookback under § 3806.

The continuing duty under Rule 573(D) is asserted.

Date: [__/__/____]

[ATTORNEY NAME], PA ID No. [________]
Attorney for Defendant

4. OMNIBUS PRETRIAL MOTION TO SUPPRESS (Pa. R. Crim. P. 581)

DEFENDANT'S OMNIBUS PRETRIAL MOTION
(Pa. R. Crim. P. 578, 579, 581)

TO THE HONORABLE COURT:

Defendant [NAME], by counsel, files this Omnibus Pretrial Motion and avers as follows:

4.1 Motion to Suppress Evidence — Fourth Amendment

Pursuant to Pa. R. Crim. P. 581 and the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution, Defendant moves to suppress all evidence flowing from the unlawful stop and arrest:

4.1.1. The officer lacked reasonable suspicion or probable cause under Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015), and Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008). The stated basis — [DESCRIBE] — is insufficient.

4.1.2. The traffic stop was unlawfully prolonged beyond the traffic mission under Rodriguez v. United States, 575 U.S. 348 (2015), and Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021).

4.1.3. The officer lacked probable cause to arrest under § 3802 — odor of alcohol, glassy eyes, and an admission of "two drinks" are insufficient. Commonwealth v. Saldutte, 661 A.2d 1379 (Pa. Super. 1995).

4.2 Motion to Suppress Statements — Fifth Amendment

Custodial statements were obtained without proper Miranda v. Arizona, 384 U.S. 436 (1966), warnings; roadside questioning became custodial under Berkemer v. McCarty, 468 U.S. 420 (1984); Commonwealth v. Mannion, 725 A.2d 196 (Pa. Super. 1999).

4.3 Motion to Suppress Breath Test

4.3.1. Operator certification under 67 Pa. Code § 77.24 lapsed or insufficient.

4.3.2. Calibration/accuracy — instrument out of compliance with 67 Pa. Code § 77.25; calibration records insufficient.

4.3.3. 20-minute observation — Commonwealth v. Smith, 904 A.2d 30 (Pa. Super. 2006).

4.3.4. Two-test variance — two breath samples must agree within .02; failure means test inadmissible.

4.4 Motion to Suppress Blood Test — Birchfield / Myers

4.4.1. No valid warrant — Missouri v. McNeely, 569 U.S. 141 (2013).

4.4.2. Defective consent post-Birchfield — DL-26 (pre-2017) included unlawful threats of criminal enhancements for refusal; consent was therefore coerced. Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017); Commonwealth v. Bell, 211 A.3d 761 (Pa. 2019).

4.4.3. No exigency for warrantless blood draw.

4.4.4. Unconscious driver under § 3755 — implied-consent statute not a substitute for warrant post-Mitchell v. Wisconsin, 588 U.S. ___ (2019), in non-exigent circumstances.

4.5 Motion to Suppress Refusal Evidence

The DL-26B was misread, incomplete, or did not accurately reflect post-Birchfield warnings. Suppress all evidence of alleged refusal.

4.6 Habeas Corpus / Petition to Quash

If applicable, Commonwealth failed to establish a prima facie case at preliminary hearing.

4.7 Motion to Dismiss / Petition for Writ of Habeas Corpus

Defendant moves the Court to dismiss the charges or, alternatively, grant such other relief as is just.

Date: [__/__/____]

[ATTORNEY NAME], PA ID No. [________]
Attorney for Defendant

5. PETITION FOR IGNITION INTERLOCK LIMITED LICENSE (IILL)

APPLICATION FOR IGNITION INTERLOCK LIMITED LICENSE (IILL)
(75 Pa.C.S. § 3805)

To: Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68676
Harrisburg, PA 17106-8676

Applicant Information:

5.1. Applicant has served the required Hard Suspension period:

5.2. Ignition Interlock Device Installation. Applicant has installed (or will install) a Department-approved IID by [PROVIDER], on each vehicle owned and operated by Applicant. Installation certificate attached.

5.3. SR-22 / Financial Responsibility. Applicant maintains SR-22 financial responsibility insurance with [INSURER], policy no. [____].

5.4. Restoration Fee. Applicant has paid the IILL restoration fee of $[____].

5.5. No Disqualifying Factors. Applicant has not been convicted of a DUI offense involving:

☐ Death or serious bodily injury;
☐ § 3735 (Homicide by Vehicle while DUI);
☐ § 3735.1 (Aggravated Assault by Vehicle while DUI);
☐ Other disqualifying provisions of § 3805(b).

5.6. Acknowledgment. Applicant acknowledges:

• The IILL permits operation only of vehicles equipped with a Department-approved IID;
• Operation of a non-IID vehicle constitutes a separate criminal offense under § 3808;
• Any positive breath sample or device tampering will result in extension of the IILL period.

Date: [__/__/____]

Applicant Signature: [________________________________]

Attorney: [ATTORNEY NAME], PA ID No. [________]

6. PLEA NEGOTIATION, ARD, AND SENTENCING MATRIX WORKSHEET

6.1 First-Offense DUI — Penalties under § 3804

6.2 Second-Offense Penalties

6.3 Third-Offense Penalties

6.4 Accelerated Rehabilitative Disposition (ARD) — § 3807

ARD is a unique Pennsylvania first-offender diversion that, upon successful completion, allows expungement.

ARD probation period: typically 6–12 months. Successful completion: expungement under § 3807.

6.5 Sentencing Considerations

☐ County intermediate punishment (electronic monitoring/house arrest) in lieu of jail
☐ RRRI (Recidivism Risk Reduction Incentive) eligibility for State sentences
☐ Mandatory minimum drug/alcohol assessment under § 3814
☐ CRN evaluation
☐ Alcohol Highway Safety School (12.5 hours)
☐ Mandatory IID under § 3805 for any § 3802(b), (c), (d), or 2nd+ offense

6.6 Plea Alternatives

6.7 Collateral Issues Checklist

☐ CDL holder — 1-year disqualification (lifetime second)
☐ NO Occupational Limited License (OLL) for § 3802 or § 1547 suspensions — IILL only
☐ Pennsylvania does not allow withholding of adjudication
☐ Expungement under § 9122 / § 3807(j) — limited to ARD completion or acquittal
☐ Immigration consequences — single DUI generally not CIMT
☐ Professional licensing — Pa. Bar, Department of State reporting
☐ Civil exposure under MV Financial Responsibility Law (Act 6)
☐ Insurance points and surcharge under SR-22 / Financial Responsibility Law

7. PENNSYLVANIA IMPLIED CONSENT LAW SUMMARY

7.1 Statutory Framework — 75 Pa.C.S. § 1547

Any person operating a motor vehicle in Pennsylvania is deemed to have given consent to chemical testing of breath, blood, or urine when:

1. The officer has reasonable grounds to believe a § 3802 violation occurred; AND
2. The person was placed under arrest for § 3802.

7.2 The DL-26B Warning — Post-Birchfield

Pennsylvania reissued the implied-consent warning form as DL-26B in 2017 to remove the unconstitutional threat of enhanced criminal penalties for refusal of a blood test under Birchfield v. North Dakota, 579 U.S. 438 (2016).

The current DL-26B warning advises:

A DL-26 (old form) blood draw is potentially invalid under Myers and Bell.

7.3 Civil License Suspension for Refusal — § 1547(b)(1)

7.4 No Right to Counsel Before Test

A driver has NO right to consult an attorney before deciding whether to submit to chemical testing in Pennsylvania. Commonwealth v. McFadden, 522 A.2d 1185 (Pa. Super. 1987).

7.5 Critical Cases

• Birchfield v. North Dakota, 579 U.S. 438 (2016) — Cannot criminalize blood-draw refusal absent warrant.
• Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017) — Unconscious driver; implied-consent statute § 1547 does not authorize warrantless blood draw.
• Commonwealth v. Bell, 211 A.3d 761 (Pa. 2019) — Blood draw evidentiary use; Birchfield admonishment must be accurate.
• Missouri v. McNeely, 569 U.S. 141 (2013) — Natural metabolism not per se exigency.
• Mitchell v. Wisconsin, 588 U.S. ___ (2019) — Unconscious-driver exigency in narrow circumstances.

8. PRACTICE NOTES AND CITATIONS

8.1 No OLL — IILL Only

Under 75 Pa.C.S. § 1553(d)(1), PennDOT is statutorily prohibited from issuing an Occupational Limited License to any driver suspended under § 3802 or § 1547. The only path to restricted driving is the IILL under § 3805. Counsel should advise clients of this critical distinction at intake.

8.2 ALS Appeal Strategy

The civil license appeal under § 1547(b) is heard de novo in the Court of Common Pleas. PennDOT must prove by a preponderance:

1. Arrest of licensee for § 3802;
2. Reasonable grounds for arrest;
3. Request to submit to chemical test;
4. Refusal; AND
5. Proper warning given.

Filing the appeal stays the suspension pending hearing. Use the ALS hearing as a discovery opportunity to cross-examine the arresting officer under oath months before any criminal trial.

8.3 ARD Strategy

ARD is the optimal first-offense disposition for eligible clients. Filing the application early (at or before preliminary hearing) preserves the option. Some DA offices have specific application requirements and deadlines — check local rules.

8.4 10-Year Lookback under § 3806

A prior DUI conviction more than 10 years before the current offense does NOT count as a "prior offense" for grading and mandatory minimums. Commonwealth v. Mock, 219 A.3d 1155 (Pa. 2019). Verify the 10-year lookback against the prior offense date (not conviction date).

8.5 Sources and References

• Pennsylvania Vehicle Code (75 Pa.C.S.): https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?txtType=HTM&yr=2016&sessInd=0&smthLwInd=0&act=33
• PennDOT Driver and Vehicle Services: https://www.pa.gov/agencies/dmv/
• PA IILL Information: https://www.pa.gov/agencies/dmv/driver-services/drivers-license-and-id-services/iill-ignition-interlock-limited-license
• Pennsylvania Code 67, Chapter 77 (Chemical Testing)
• Pa. Rules of Criminal Procedure (current edition)

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