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The Art of War, DUI Style

Case Study Caption
Lehigh Valley Criminal Defense Attorneys

About This Case

In DUI & Criminal cases the government often assumes that they will be the only party to the case presenting evidence. Therefore, they are often unprepared when the Defendant has the audacity to present his own evidence.
DUI DefenseDUI, Criminal Law, Trial, Evidence
Time Frame6 months
LawyerJames Madsen

Ralph, a 30 year old single gentleman, was out for some drinks on a Thursday night.  He had a bit too much to drink but that was ok because he was responsible and had a designated driver.  But, Ralph had so much to drink that night that the smell of alcohol was still emanating from his pores the next morning when he was pulled over by the police.

When Ralph was pulled over by the police and asked to give blood and have his BAC checked, Ralph did exactly what any reasonable person might do… He asked to speak with his lawyer before consenting to give blood.  However, Ralph, like most of us, was unaware that a DUI stop is the one exception to the right to counsel.  So when Ralph asked to speak to our DUI Attorneys he was arrested and charged with DUI based upon his alleged refusal to give blood.

As soon as he was released, Ralph called James Madsen.  Our DUI Attorneys arranged for Ralph to have a private blood test conducted by Quest Diagnostics.  Ralph’s blood came back under the legal limit but his blood was not drawn until three hours after the initial traffic stop.

Knowing it and proving it are two different things.


As soon as Ralph called, we knew the first problem was that his refusal to submit to a blood test created a presumption of intoxication.

Our first challenge in this case was to figure out what to do the very moment that Ralph called us.  But, that was only the beginning.  The real challenges were yet to come.  First we had to overcome the “two-hour rule” that requires blood to be drawn within two hours of a traffic stop in order to be admissible.  Even if we got around the “two hour rule” we would still have to “relate back” the test results. Since the test was taken three hours after the DUI stop, we would have to have expert testimony as to the rate of alcohol dissipation.

Finally, we would have to be able to present the blood test results at trial without being able to establish chain of custody.  (In this case the blood was sent to Virginia for testing) 

Our Process

1. Planning The Case

An Aggressive Start

In this case, we would have to conduct an extensive preliminary hearing, spend hours on legal research regarding the “two hour rule,” procure an expert witness to extrapolate the blood test results back to the time of the traffic stop and finally we would have to find a way to overcome the chain of custody issues regarding the actual blood that was tested.


We planned for an extensive preliminary hearing, preparing questions delving into every detail of the stop.  We knew the government’s attorneys are well prepared for presenting evidence in criminal cases but have little experience prohibiting the inclusion of evidence.  We also knew the District Attorney’s office has little experience outside the commonly used criminal rules.

2. Preliminary Hearing - Showing the Commonwealth Who Controls the Narrative

Hours of DUI Cross-Examination

At the preliminary hearing, the Judge is required to believe all evidence presented by the Commonwealth and to take all inferences in favor of the Commonwealth.  Because of this we knew there was a good chance that we would convince the Judge the Ralph was not guilty but the Judge would have no choice but to send the case forwards to trial.


Before the preliminary hearing we called Judge Manwarring’s office.  We informed him that this would be a long hearing and asked that it be scheduled as his last hearing of the day.  We wanted to be able to take our time and did not want anyone to feel rushed.  The Judge was happy to accommodate and thankful for the advance notice.


That day we spent three hours cross examining the arresting officer.  We established that the sole basis for the traffic stop was an equipment violation.  We established that nothing about Ralph’s driving indicated he was intoxicated.  We established that the officer did not follow protocol when conducting the field sobriety tests.  We established that the sole basis for the DUI was the refusal to submit to a blood test.  We also established that the blood test results were the single most important factor for a DUI conviction.  Of course the officer changed his mind after we revealed that we did indeed have blood test results indicating sobriety.  But, at that point, it was already too late for the Commonwealth.  They had already walked into our bear trap and their testimony was already recorded.


At the conclusion of the preliminary hearing the Judge applauded our case and let it be known that he thought Ralph would be found not guilty.  He, thanked us for actually conducting a preliminary hearing the way it should be done and for entertaining him.  The Judge then, as we expected, told us that despite all of that he had no choice but to list the case for trial because the law constrained him to do so.

3. Court of Common Pleas

Preparing for a DUI Trial

After the Preliminary Hearing we knew we would win the case at trial if we were able to present all of our evidence. 


Overcoming the “two hour rule” turned out to be a simpler issue than we originally expected.  There was no support that the rule applied in any way other than as a rule limiting the government.  We were able to find statutory support for our position that the rule did not apply to an independent blood test presented by the Defense.  (There was no prior legal precedent, or caselaw, because what we were attempting had never been done before.) 


In preparing the case for trial, we knew our biggest issue would be overcoming chain of custody for the blood itself as well as presenting testimony from the actual lab technician in Virginia.  If we couldn’t pull off some sort legal trickery we would be forced to call the person who drew the blood in Bethlehem, all the people who transported the blood to Virginia, the lab tech from Virginia who actually tested the blood and the expert witness we hired to extrapolate the results back to produce an actual BAC at the time of the stop.  Producing all of these witnesses at a trial may have been beyond the financial means of Ralph.  Failing to produce any one of them could completely ruin our case.


If the District Attorney had time to really think about the difficulties we would face in actually presenting the blood test results, we would be in trouble.  We would somehow have to find a way to assure the test results would be admissible before she had an opportunity to object.  We had to outwork the government, we had to distract them with other things.


4. Pre-Trial Motions - Creating Chaos

Hiding the Needle in the Haystack

At the time of Ralph’s DUI there was a new legal precedent that reduced the maximum penalty Ralph could face.   This reduced the penalty below that which a jury trial is granted as a matter of course but the minimum would still remain at a three month sentence.  However, the District Attorney charged the case in such a way as to ignore the new precedent.  This confusion allowed us to file motions seeking clarification as the grading of the DUI and to argue for a jury trial.  The motions were presented together, and in the alternative.


We also presented two alternative suppression arguments, one in the event that a jury trial was granted and one in the event that a jury trial was denied.  We also filed motions for habeas corpus and various discovery motions.


All in all it was quite confusing.  In the mist of that confusion we also served one single page notice upon the District Attorney, notifying them that, under the Pennsylvania Rules of Evidence, would seek to present the blood test results, without the production of witnesses, and we would be permitted to do so unless the objected within 15 days.  This form of notice is used often in civil cases but is rarely, if ever, seen in a criminal case.  As it turns out, the much more voluminous and complex motions preoccupied the District Attorney and no objection was received.


After litigating, and losing all the issues other than admissibility of the blood test results, we were listed for trial the following Monday.  After litigating, and winning, all the complex matters the District Attorney withdrew the charges against Ralph the day before trial because they overlooked the one tiny issue that mattered.



After being charged with a second offense DUI and facing a mandatory minimum of 3 months of incarceration and mandatory maximum of 5 years, all the charges against Ralph were withdrawn. 


To our knowledge this case still remains the only use of an independent blood test in a DUI case that we are aware of. 


We believe this case highlights the benefits of being versed in multiple areas of law as well as the benefits of creating battles which you plan on losing in order to eventually win the war.

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