Former Attorney General Kathleen Kane is taking a novel approach in fighting her DUI arrest

Five months after agreeing to treatment for alcohol abuse, former Pennsylvania Attorney General Kathleen Kane is mounting a novel defense to a drunken-driving charge that led her to seek help.

Kane has mounted a sweeping legal challenge to her arrest in March in Scranton after a fender-bender car crash. She says that she was the designated driver and that the person who was intoxicated was actually her identical twin sister, sitting next to her in her car.

The former attorney general refused to take a Breathalyzer test after police said they found that her speech was slurred, she had trouble saying the word designated, and she could not stand properly on one foot during a field sobriety test outside her 2021 Audi SUV.

Under Pennsylvania law, a refusal to take a test leads to an automatic loss of a driver’s license and can hurt a DUI defendant at a criminal trial, lawyers say. Her lawyer, Jason Mattioli, is arguing that her refusal should be suppressed by the courts because police did not warn Kane of her Miranda right to remain silent before asking her to take the test.

Prosecutors in Lackawanna County are expected to file their response to Kane’s argument soon.

But other experts in DUI law say the prosecution will likely argue that court precedent has established that police need not give Miranda warnings before a blood test.

“Miranda does not apply here, in my opinion,” defense lawyer David Shrager, a Pittsburgh attorney experienced in DUI cases, said Thursday. “It’s been tried and tested and that is not the case.”

Another veteran defense lawyer, Zachary Cooper, of Montgomery County, agreed.

“I don’t want to say they are grasping at straws, but it sounds like that’s what they are doing,” Cooper said.

Lawyers cited the fact that in 1990, the U.S. Supreme Court, ruling in a DUI arrest from outside Harrisburg, rejected an appeal arguing that an officer had failed to give a Miranda warning to a suspect before asking him to take a Breathalyzer test. The high court distinguished between this kind of communication with a suspect and an interrogation in which a person could make incriminating statements.

Kane, 56, the first Democrat and first woman to be elected attorney general in Pennsylvania, resigned partway through her only term after she was found guilty in 2016 of perjury, official oppression, and obstructing justice for lying about her role leaking confidential material to embarrass a political enemy.

She served eight months in county prison. She was jailed again this year after the DUI arrest for violating her probation, but was released in favor of admission to an inpatient alcohol treatment program. Her lawyer, Mattioli, said she had completed that program.

Assistant District Attorney Jonathan Pietrowski, who is prosecuting the case with the Lackawanna County District Attorney’s Office, declined comment Thursday.

Mattioli filed his 43-page defense motion Oct. 18, as well as a supportive legal memo. The prosecution is expected to file its rebuttal shortly. The two sides will debate the issues before a judge on Nov. 17.

In his motion, Mattioli points out that the arresting officer and numerous other police who encountered Kane after the accident did not smell alcohol on her breath. He said the alcohol odor from the Audi was from Kane’s twin, Ellen Granahan, who formerly worked as a chief deputy attorney general.

The defense lawyer also said the sobriety test Kane was given was unreliable because she had to stand on a snow-covered, non-level and slippery surface. In their arrest affidavit, police said the test was given under a covered gas station area on flat ground with some snow blown into the area.

At a preliminary hearing in the case in July, prosecutors showed a video from a Scranton restaurant showing the two sisters were there from 3 to 6 p.m. on March 12.

It captured Kane drinking at least two beers and a shot. In addition, a bartender told police that he served four double-vodkas to the group that included Kane and her sister. The bartender also said he had to cut off one of the twins but could not say which one.