Two DUI Questions

1. I got arrested for DUI. When I got to the police station the BAC (blood alcohol content) machine didn't work. They cops charged me with a refusal DUI, but I did not refuse. There is a video and we have preserved the video for the trial. Can I beat the case based on this?

There are three tiers of DUI in Pennsylvania. The penalty/punishment is far worse in tier two than tier one, and far worse in tier three than in tier two. A refusal case is a tier three case. If the refusal is thrown out by the judge, the District Attorney CAN proceed with observations alone of the police officer. An observations alone case is a tier one offense and very hard to prove for the District Attorney. Therefore, while you may not beat your case entirely because of a suppressed refusal, you have a far better chance of beating it, or even getting it significantly reduced.

2. I have two previous DUI convictions, so I have been around the block--twice. On my third DUI arrest, I got a knock at my front door and it was the cops. They asked me how much i had to drink that night and if I had driven and I stared at them silently and gave no response. I took all tests and gave them all of my biographical information. At trial, the District Attorney, in his opening statement to the jury, told them that when I was questioned by the police I remained silent. My lawyer objected, the objection was sustained, but the judge refused to grant a mistrial and start over. Is this correct?

This question is actually not about DUI at all, but much more so about the rules of evidence and the law of mistrials. Every DA knows they are not allowed to do this, so any DA that would do this is ethically challenged to say the least. My guess is that the judge should grant a mistrial because the defendant has a right to remain silent and that silence cannot be held against the defendant. A new trial should be granted.

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