February 9th, 2022

Know the DUI Facts Before Super Bowl Weekend

On Sunday, February 13, the Los Angeles Rams and the Cincinnati Bengals will battle for football supremacy in this year’s Super Bowl. While we are undoubtedly excited for the matchup of elites, and equally excited to blame everyone but ourselves for our awful FanDuel wagers, it is imperative to refresh our knowledge of DUI law in Pennsylvania before stepping out to a Super Bowl party this weekend.

Superbowl Sunday is one of the biggest drinking days of the year. According to statistics, drunk driving incidents increase by approximately 22% on game day. In fact, more alcohol-related accidents and DUI-related injuries occur on Super Bowl Sunday than on any other day of the year, aside from New Year’s Eve. Not surprisingly, police forces are acutely aware of this fact and have been trained to crack down on potential drunk drivers during and after the game, even setting up sobriety checkpoints in pre-approved locations.

BAC levels and DUI determinations

In Pennsylvania, one is prohibited from driving, operating, or having actual physical control of a vehicle while under the influence of alcohol, drugs, or any controlled substance, 75 Pa. C.S.A. S. 3802. Though the definition may seem straightforward on its face, the intricacies involved in DUI law in PA create important distinctions. Initially, a driver is considered “under the influence” of drugs or alcohol if they are rendered incapable of safe driving. For alcohol-related offenses, this can be determined through one’s blood-alcohol content (BAC) level and considered a “per se” DUI if one’s BAC exceeds a certain threshold. This bypasses the need to show any actual impairment or outward signs of intoxication obtained through field sobriety tests.

Alcohol-related offenses are further divided into separate tiers for persons over 21 if one’s BAC is:

(1) at least .08%, but less than .10%,

(2) at least .10% but less than .16%[1], or

(3) higher than .16%.

Logically, the penalties associated with each tier increase as one’s BAC increases, including fines, license suspensions, and potential sentences, as do the penalties for multiple DUI offenses. Factors such as the use of a commercial vehicle, property damage, or injury/death also play a role in assessing consequences such as fines, license suspension, and jail time.

If you are under 21 years old, you can receive a DUI if your BAC is over .02%.

Actual Physical Control

Importantly, the use of the term “actual physical control” is significant in this analysis. One does not need to actually be driving their vehicle to be in actual physical control and be charged with a DUI.

The phrase “actual physical control” has not clearly been defined by the Pennsylvania courts. However, courts have typically looked at several factors:

  • Was the key in the ignition?
  • Was the ignition turned on?
  • Where was the vehicle parked?
  • Was the engine warm?
  • Did the driver state that he/she had previously driven?

In essence, the courts are looking for some evidence to show that the vehicle was driven prior to police arrival, and that the driver had driven while intoxicated or under the influence of drugs in order to charge a driver with a DUI, even if the driver had parked his vehicle or was resting inside.


Refusing a BAC Test

Additionally, those who refuse to take a BAC test, blood test, or chemical test can automatically face a minimum 12-month license suspension, and the prosecution will nonetheless have the opportunity to prove its case by demonstrating other outward factors suggestive of drunk driving with the already provided presumption of intoxication. In such cases, the defendant will thereafter be subject to the highest BAC category penalties if they are unable to overcome this presumption.

Drug-related DUIs

As to drug-related DUIs, while driving with any amount of an illegal substance is clearly forbidden, it is of note that an individual under the influence of any drug or combination of drugs which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle can be subject to a DUI charge and be placed in the highest tier. Simply put, even an individual using legally prescribed drugs can be held liable if it is held that defendant was unable to drive safely.

How to avoid a DUI 

If you do choose to go out, and more so, if you choose to go out and drink, we implore that you first plan to arrange a safe way home.  While our criminal defense team at Gross McGinley takes pride in knowing DUI law in PA providing defense strategies and thorough representation for our clients, we would much rather see you avoid such a situation.

If you have been charged with a DUI or related offenses, it is necessary to have an experienced and knowledgeable attorney on your side to help you navigate through the legal process and obtain the best result for your situation.

As a criminal defender, Robert Campbell helps his clients navigate a wide range of cases, including bail hearings and modifications, probation violations, assault charges, drug offenses, DUIs, disorderly conduct and public intoxication, criminal trespassing, and traffic citations. Additionally, he assists with placement into Accelerated Rehabilitative Disposition (ARD) and Marijuana Diversion programs. He also supports those seeking expungement and pardons. 

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.