Written by attorney Forest Dean Morgan

What Happens at a Pennsylvania DUI Preliminary Hearing

The purpose of a preliminary hearing is to allow a magisterial district judge to determine whether the government can demonstrate a prima facie case against the defendant. A prima facie case requires, in layman’s terms, the government to demonstrate that it is more likely than not that: (1) a crime was committed and (2) the individual charged is the person who committed the crime. A prima facie case is NOT a determination of guilt.

To establish a prima facie case for DUI, the Commonwealth must establish that you operated a motor vehicle on a public roadway and there is evidence your blood contained drugs or alcohol. We understand that the preliminary hearing is an opportunity to explore the facts of the case completely to determine the appropriate course of action to take in the case.

In addition to the elements necessary to establish a prima facie case, we ALWAYS investigate the factual circumstances surrounding your arrest to determine the likelihood of success at trial. We look at three very specific criteria to determine whether we will recommend trial, a negotiated guilty plea, or ARD.

#1: Did the Officer have Probable Cause to Stop and Detain You?

First, we evaluate the officer’s probable cause to stop/detain. To stop or detain an individual for DUI, the officer must possess sufficient facts that he/she believes that the defendant (or the defendant’s vehicle) is in violation of the Pennsylvania Vehicle Code or he/she has a lawful right to investigate a criminal action or accident.

The basis for the detention may not meet the legal standard outlined above. Therefore, it is absolutely necessary that a full and complete evaluation of the case, including a discussion with the officer occur prior to making any recommendation about the outcome of your case.

After that discussion, we will have sufficient facts to render an opinion on whether or not there is a likelihood of success at trial. Following the discussion with the police officer, we will give you our opinion as to whether the issues can successfully be resolved in our favor by filing a pre-trial motion.

#2: Did the Officer have Probable Cause to Arrest You?

Second, we evaluate the officer’s probable cause to arrest. To be constitutionally valid, a warrantless arrest must be supported by probable cause. The Pennsylvania Supreme Court has held “probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Mere suspicion alone will not support a finding of probable cause.

Unlike many attorneys we go beyond the field sobriety tests to determine whether or not probable cause exists. Simply stated, Field Sobriety Tests are designed to make you fail. The requested tests are inconsistent with our daily activities.

Field sobriety tests are not divided attention tests. To be valid, the test must be administered in a prescribed standardized manner; the standardized clues must be used to assess the suspect’s performance; and the standardized criteria must be employed to interpret that performance. If any one of the standardized field sobriety test element is changed, the validity is compromised. It has been my experience that most police officers do not administer the field sobriety tests properly. Please note that when the tests are administered properly they are only accurate less than 70% of the time.

Theses common phrases show up in nearly every DUI case: ? Red, bloodshot eyes ? The odor of an alcoholic beverage ? Staggered gait ? Disheveled appearance ? Slurred speech

However, there are a number of reasons, notwithstanding the influence of alcohol that such symptoms do appear. Therefore, we look beyond those common phrases to examine the actual facts of the case. Thus, we look beyond the tests and determine whether the things we do in normal, everyday life, such as standing and walking normally were indicative of intoxication.

#3: Breath/Blood Testing

Third, we evaluate the chemical test procedure to determine if it is consistent with Pennsylvania law. First, we determine if the chemical testing was performed within the two hour time limit (alcohol cases). There are other procedural requirements that must be met before a Chemical Test can be admissible in court.

Breath Test

Before we concede that the evidence is admissible, (which does not mean the same thing as being “accurate") we require the officer to provide me with the following: Certificate of Accuracy; Breath Test Operator Certification; Certification of Calibration; Certification of Breath Test Operator responsible for testing the device for accuracy and calibration; Simulator Solution Certification; and Ampoule Certification.

Blood Test

Before we concede that a Serum Blood Test is Admissible (which does not mean “accurate"), I require the officer to provide me with the following:

  • Full name of Phlebotomist who drew blood of the defendant

  • Full name and CV/Resume of any witness the Commonwealth intends to call to testify as to the results of the blood testing

  • Plasma/Serum Testing Documentation

  • Copy of any and all documentation, including Standard Operating Procedures, relied upon by Medical Technician in conducting the testing of the Defendant’s blood serum

  • Copy of any and all documentation regarding the device/machine utilized to analyze the serum of the defendant including, but not limited to the following: Device Manufacturer, model number, serial number, Date placed in service, maintenance reports, calibration reports, and out of service documentation within 180 days prior to the testing of the defendant’s serum and 90 days after the testing of the defendant’s blood serum

  • The title of any document, treatise, book, study, or report upon which the conversion factor relied upon by the hospital/laboratory to convert the amount of alcohol in a subject’s plasma/serum to a whole blood equivalent value

  • The name, title, and qualifications (CV) of the individual responsible for choosing the document, treatise, book, study, or report upon which the conversion factor relied upon by the hospital/laboratory to convert the amount of alcohol in a subject’s plasma/serum to a whole blood equivalent value.

If the blood was subject to Gas Chromatography Testing, I require the officer to provide me with the following:

  • A copy of the Laboratory Report

  • A copy of the Analyst’s Bench Notes

  • A copy of the documentation for all calibrators, controls, blanks, internal standards and standard mix and ALL associated Chromatographs

  • A copy of the Calibration Curve Result

  • A copy of all maintenance logs for the Gas Chromatograph device

  • A copy of all maintenance logs for all pipettes in use at the time defendant’s blood was tested.


In addition, the specific factual circumstances regarding a refusal are important. This includes whether or not you were fully advised of the consequences of the refusal including the reading of the DL-26.

Please note that the refusal may result in a separate civil penalty, including the loss of license for a period of 12 or 18 months. If retained quickly, I may be able help you avoid a suspension from PennDOT. If you do receive notice of suspension, you may wish to file an appeal. That would be separate and distinct from the criminal case.

Free Q&A with lawyers in your area

Avvo DUI email series

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer