When a client is arrested for DUI, the first time they get to confront the evidence against them is at the Preliminary Hearing. The official function of the preliminary hearing is for the Commonwealth to demonstrate to the District Justice, though their witnesses, that there is probable cause to believe that the client was driving under the influence at the time they were arrested. After hearing the evidence, the District Justice cannot find you guilty of anything but they can find that the Commonwealth does not have sufficient evidence to proceed further and in that case the judge can dismiss some or all of the charges.
There are other options. A client can also decide to waive their right to a preliminary
hearing
in exchange for a reduction in bail or for the Commonwealth’s withdrawal of some of the charges in the complaint. In the area of DUI, what this often means is that a police officer, who is representing the Commonwealth, can withdraw a subsection of the DUI charge in exchange for the client’s waiver.
Here is a scenario: The client is charged with a DUI where the blood alcohol level is .107. A conviction of a DUI with this BAC will result in a one (1) year loss of license. When represented by a Montgomery County DUI Lawyer, that client can get the cop to withdraw that subsection and agree to pursue the case under the “general impairment” subsection where the blood alcohol level would be between a .08-.10. A conviction under this subsection results in NO loss of license (it its a first offense).
In essence, one subsection of the DUI statute is substituted for another, by agreement of the parties, and in exchange for a waiver. Then, the case proceeds to the Court of Common Pleas at the lower level.nullifies the deal made at the preliminary hearing and adds back the charge that was withdrawn at
This mechanism worked well for many years but is now in jeopardy due to the relatively new practice by the Montgomery County District Attorney’s Office of adding the original subsection back once the case gets to Norristown to be listed for trail. In short, the D.A. nullifies the deal made at the preliminary hearing and adds back the charge that was withdrawn at the preliminary hearing. It turns out the client waived his preliminary hearing for nothing. Obviously, this is not fair to the defendant and defense attorneys are making inroads towards stopping this obviously unfair, even dastardly, attempts to undercut a deal that was made at an official court proceeding. The bottom line: If you are a DUI defendant and you are confronted with this opportunity to have a DUI subsection dropped at the preliminary hearing, take every measure you can that the D.A.’s office will not come in later a recharge you.
Stay tuned.