You are reading this because either you or someone close to you has been arrested for a DUI, Homicide by Vehicle While DUI, or Aggravated Assault While DUI. You have questions. You need answers. You need them now. You need the Best Pennsylvania DUI Defense Lawyer you can find.
We have answers to your questions. We have the specialized training in DUI defense that you need. You are encouraged to read this article on how to find the best DUI lawyer for your case. We have a national reputation for defending DUI cases. Our former clients speak very well of us. We use our training every day to put our clients in a position to get the best outcome based on the facts of their case.
Our Pennsylvania DUI Defense Team
We work as a team to defend you. Brian Manchester is a national and statewide lecturer on DUI defense issues. He has hands on lab training in testing blood for alcohol and drugs, as well as advanced training in field sobriety testing. Karen Kuebler is the former District Attorney of Clinton County, a former Public Defender in York County. She has prosecuted and defended thousands of DUI cases. This gives her the ability to see a case from both sides which is a great asset to our clients. Greg Davidson started defending DUI cases from day one of his career and has argued DUI issues three times at the State Supreme Court. Greg also has hands on lab training in blood and drug testing as well as field sobriety testing.
This type of experience, training, and team-based approach is the best way to defend DUI cases. The prosecutor has a team; therefore, so should you. Please do your research on us and then call us right away. It does not matter if you have been charged with a first offense DUI or Homicide by Vehicle While DUI. All DUI cases are complex and should not be treated as routine. It will be one of the most important calls you ever make. Contact our team for a free consultation at our toll free number (800)-243-4878.
A wealth of information about Pennsylvania DUI law, along with questions and answers, can be found below. If you are facing DUI charges, use the buttons below to contact us and benefit from our expertise and experience.
DUI Crimes & General Information
- Driving Under the Influence - General Impairment
- Driving Under the Influence with a BAC between .08-.10
- Driving Under the Influence with a BAC between .10-.16
- Driving Under the Influence with a BAC over .16
- Driving Under the Influence of a Controlled Substance
- Driving Under Suspension
- Aggravated Assault while DUI
- Homicide by Vehicle while DUI
- First Offense DUI
- Second Offense DUI
- Third Offense DUI
- Fourth Offense DUI
- Boating While Intoxicated
A DUI based on alcohol is the most common DUI in Pennsylvania. There are two ways a person can be charged with DUI based on Alcohol. A lot of my clients ask why they are charged with two types of DUI? That is because the prosecutors try as many ways to convict you as they can. The two standard Pennsylvania alcohol DUI charges are General Impairment and your Blood Alcohol Level. Here they are in more detail:
General Impairment DUI:
1. This is also called driving while impaired. The Commonwealth must prove that you consumed enough alcohol that it made you incapable of driving safely and that you then, drove, operated, or were in actual physical control of a vehicle. There is no specific blood alcohol concentration (BAC) needed for this offense. How much alcohol is needed to make you incapable of driving safely differs for every person. This means you can still be charged with this offense even if your BAC (Blood Alcohol Concentration) level is below the legal limit.
Blood Alcohol Limit:
2. This is also called the per se charges. Measurement of BAC (Blood Alcohol Content): The government must prove your BAC level to be equal to or greater than .08% within two hours of driving, operating, or being in actual physical control of a vehicle. The Commonwealth does not have to prove an offender was incapable of driving safely, only that the BAC was above .08% within two hours of last driving or being in actual physical control of the movement of a vehicle. In Pennsylvania BAC is determined by either blood or breath testing - no other testing method is approved.
This DUI offense has increased penalties depending upon the amount of alcohol in your blood. If the BAC is .08-.10, or if a blood test is refused,, it is a tier 1 offense. If the BAC is between .10-.159 or you there is an associated road traffic accident that causes property damage, it’s a tier 2 offense. If BAC is .16 or higher or you refused a breath test or a search warrant for your blood, that’s a tier 3 offense. The higher the tier, the more severe the punishment can be if convicted. Please refer to the PA DUI Sentencing Chart. (hyperlink this to the DUI sentencing chart in the criminal resources section)
On the criminal complaint Driving While Impaired is often shortened to General Imp. in places on the criminal complaint. Often when I speak to new clients on the phone, they ask me what does General Imp. mean? Well, it is shorthand for General Impairment. That charge is what I call the old-fashioned drunk driving charge.
Above we spoke about general impairment in legal terms. Now, what does that mean in English? It means a person is guilty if they drank enough alcohol that a fact finder, Judge, or Jury, believes they can’t drive safely. What it does not mean is a person has to be drunk. It means a person cannot have consumed enough alcohol so that they can’t safely drive. Safely driving is a subjective call. That is where the defense comes in. It also does not mean a person cannot stand on one foot and be stiff as a board. It does not mean a person who cannot walk a straight line in a way no normal person walks. What the police do not tell you is that the field sobriety tests that they administer are only gauges of a person’s blood alcohol content. They even say that in the Field Sobriety testing manuals. One of the scientists who worked to standardize these tests, Dr. Marceline Burns, even testified to that. This is why knowing what the tests are about gives you an edge in defending DUI cases.
Then there are the Blood Alcohol Content DUI charges. You are guilty of a Pennsylvania DUI IF the government can prove your blood alcohol content over one of the levels mentioned above. Please note that I said IF they can prove the blood alcohol levels. There are many issues related to blood testing that can be found by a lawyer trained in what to look for. They are not always there but they are there quite frequently. Please refer to my blog How to Expose Bad Blood Tests in Pennsylvania Alcohol DUI Cases.
There are three types of drug DUI cases in Pennsylvania. Prescript drug DUI cases. Illegal drug DUI cases. The third category is Medical marijuana DUI cases.
Prescription Drug DUI Cases in Pennsylvania
Time and time again I speak to new clients and they don’t understand how they can be charged and possibly convicted of a DUI based on them taking their legally prescribed drugs. Well, they can. Pennsylvania law states that if a person is impaired on drugs they are guilty of DUI. Doesn’t matter if they are prescribed or not. In fact, the law treats being impaired on drugs in Pennsylvania as the highest tier of punishment.
That is right. If a person is impaired on alcohol they get punished in the lowest tier of punishment. If it is a first offense and a person is impaired by alcohol they get probation and no license loss. However, if they are impaired on their prescription pain pills, or Xanax they go to jail for a minimum of three days and lose their license for one year. Definitely not equal treatment. If it is a second or third offense DUI the punishments get really harsh. It can result in a felony conviction for a third offense.
That is bad news. The good news is there are many defenses to these cases. People are prescribed medication because they are ill. A person may be prescribed Ritalin because they have problems concentrating. Some people are prescribed Oxycodone because they were in a bad accident and have constant pain. There are many scenarios as to why people are prescribed medication. Some people are prescribed Zoloft because they are suffering from depression. With the medications people live more normal lives. They can focus more, they feel happier. They can move around with less or no pain. As to driving they can definitely function better. But then they get pulled over for a tail light out. Not turning on a turn signal or speeding. Then once a police officer finds out they are on prescription drugs they have them step out of their car and perform tests that in no way resemble how humans walk and stand. Then a mere traffic infraction turns into a DUI arrest. There are many defenses to prescription drug DUI in Pennsylvania. Many more than alcohol and there is far less stigma surrounding prescription drug DUI cases because many jurors and judges take prescription medication or know people who do. Therefore, they can see themselves in the potion of the defendant.
Illegal drug DI cases in Pennsylvania
There are four categories of illegal Drug DUI cases in Pennsylvania. Being impaired by them. Merely having them in a person’s blood regardless of impairment. Having schedule 2 or 3 drugs in your blood but without a prescription and lastly, having these drugs in your blood in combination with alcohol.
Being impaired is easy to understand. If a person takes illegal drugs and they are impaired by them they are guilty of a Pennsylvania drug DUI, Then, there is having a Schedule 1, or unprescribed drug in your blood. That is an automatic DUI even if a person is not impaired. The most frequently used drugs that can get a person in trouble for this are Heroin, methamphetamines, and marijuana.
The third category of Pennsylvania drug DUI comes from having unprescribed Schedule 2 or 3 drugs in your blood. These are drugs like oxycodone and hydrocodone used for pain medication when prescribed and abused when unprescribed.
The last category of illegal drug Dui is when they are in combination with alcohol. Even if a person’s blood alcohol level is lower than .16, having illegal drugs or their metabolites in a person’s blood takes the punishment to the highest level. Even if it is only an inactive metabolite of the drug. For example, having Delta-9 Carboxy (the inactive metabolite of marijuana) in your blood with a .085 blood alcohol content will be treated as being the highest level DUI.
Medical Marijuana DUI cases in Pennsylvania
As in any drug Dui, if you are impaired it is illegal. What is very disturbing to medical marijuana patients is that our current DUI law in Pennsylvania makes it illegal to have THC or its metabolites in your blood. Even if you are not impaired. This is totally wrong. However, there have been some recent appeals court cases that make these charges easier to defend.
Despite all of this there are many defenses to these cases. From the admissibility of the drug test results based on minimum detection levels all the way to whether or not the drug actually impaired a person. Each case is unique. When it comes to drugs a person can’t be put into general categories like they can if they are charged with an alcohol DUI.
Classified in PA as a Felony 3, punishable by up to 7 years in jail and a maximum fine of $15,000.00. An additional 2 years of jail time can be requested by the District Attorney if the offense occurred in an active workzone; 2 additional years of jail time can also be added if you are also convicted of driving without a license, driving while license is suspended, texting while driving, duties for emergency vehicles, or duties in emergency response areas.
In order for you to be convicted of aggravated assault by vehicle, the District Attorney’s office must prove beyond a reasonable doubt that you acted recklessly or with gross negligence while operating a vehicle; that their operation of the vehicle caused serious bodily injury to another person; and that you also violated any vehicle code offense relating to the operation or use of a vehicle. 'Serious bodily injury' is defined as "bodily injury which creates a substantial risk of death or cause serious permanent disfigurement or long lasting loss or impairment of the function of any bodily part or organ". The offense committed cannot be the offense of Driving Under the Influence (DUI) as there is a separate offense for DUI situations called Aggravated Assault While DUI.
Classifed by PA as a felony 2, punishable by up to 10 years in jail and a maximum fine of $25,000. An additional two years jail time can be requested by the District Attorney for texting while driving, failure to yield to an emergency vehicle, failure to move for emergency vehicles, or if the offense is committed in an active work zone. The District Attorney can also ask for an additional two years of incarceration if you are not properly licensed at the time of the offense.
To prove this offense the Commonwealth must show that you acted recklessly or with gross negligence, and caused Serious Bodily Injury (SBI) to another person as a result of you operating a vehicle while committing the offense of Driving Under the Influence (DUI). 'Serious bodily injury' is defined as "bodily injury which creates a substantial risk of death or cause serious permanent disfigurement or long lasting loss or impairment of the function of any bodily part or organ".
Pennsylvania's Ignition Interlock Limited License is a special license that individuals can apply for through Pennsylvania Department of Transportation. This license is issued to individuals that have had their regular license suspended for a period of time. It allows an individual to drive and operate a vehicle with an Ignition Interlock System installed in the vehicle that they are driving. The Ignition Interlock system will not allow the vehicle to start if it detects alcohol on the individual's breath when they blow into the system. The Ignition Interlock Limited License replaced the Occupational Limited License for DUI offenses. The Occupational Limited License was commonly referred to as the “Bread and Butter License” because it was used to allow people only to drive back and forth to work.
Ignition Interlock Limited License is under 75 PACSA 1556 of the PA code applies to all offenses under Pennsylvania DUIs 75 PACSA 3802 and Refusals 75 PACSA 1547. The petition fee with PennDOT is a nonrefundable $65.00 and must be sent certified mail with the prescribed form from PennDOT. To qualify the law requires that all fines, cost, and restoration fees are paid in full, that the vehicle or vehicles in which the operator wants to use be equipped with an approved ignition interlock system, proof of the ignition interlock system must be proved with the petition, proof of financial responsibility covering all vehicles that the operator intends to use. If the applicant qualifies PennDOT must issue an ignition interlock limited license within 20 days after receiving the petition and all other required documents.
There are waiting periods associated with this special license. Defendants who have not had a prior DUI offense are immediately eligible for the Ignition Interlock Limited License. All other DUI Defendants, if they are serving a 12 month suspension then they must first serve 6 months of that suspension before being eligible. If you are serving an 18 month suspension then you must first serve 9 months of that suspension before being eligible. If you are serving a 12 month suspension for Refusing to submit to chemical testing then you must first serve 6 months of that suspension before being eligible. If you are serving an 18 month suspension then you must first serve 9 months of that suspension before being eligible. In addition time served on the ignition interlock license under this program does not reduce the time period in which you are ordered to have an ignition interlock program as part of your DUI sentence.
For a chart and more information, please refer to our resources page to download additional information and forms about the Ignition Interlock Limited License program.
Obtaining a driver’s license is a right of passage for most Americans. A driver’s license is an essential tool that allows us to commute to and from work. For some people is it an essential tool for work. As important as having a driver’s license is to most people, in Pennsylvania driving is a privilege not a right.
In Pennsylvania you must have a valid driver’s license and have it with you in order to legally drive. If you never had a license, or you fail to have it with you while you are driving, or your license is expired and you didn’t get it renewed, and you are stopped by the police while driving you can face charges. The charge which applies to all of the above is under section 1501 of the Vehicle Code, “Drivers Required to be Licensed”. There is a defense to the charge if you can produce proof that you had a valid license at the time you were stopped, as long as you provide that proof within 15 days of the date you were stopped.
This offense is a summary traffic violation with a mandatory $200 fine for a first offense. If your violation was due to an expired license the fine will be reduced to $25 if your license was not expired for more than one year and you get your license renewed before going to court. If this is a second or subsequent offense within 7 years you will face a fine of between $200 and $1000 OR imprisonment of up to 6 months OR both.
If your license is suspended due to a DUI conviction or ARD placement, and you are caught driving before you get your license restored, you can face charges under Section 1543(b) of the Vehicle Code for Driving Under Suspension DUI related. A DUI related suspension remains in effect until you get your license is restored, even if the actual suspension length is over. Failure to get your license restored can result in Driving Under Suspension DUI related charges months or even years after your suspension period is over. Like many driver’s license related offenses, the severity of the punishment depends on how many prior convictions you have and, in this case of a DUI related suspension, whether you had alcohol in your system when you were stopped by the police.
- For a 1st offense, where there is no alcohol in your system, you will face a fine of $500 AND a jail sentence of between 60 and 90 days AND an additional license suspension.
- For a 2nd offense, where there is no alcohol in your system, you will face a fine of $1000 AND a jail sentence of 90 days AND an additional license suspension.
- For a 3rd or subsequent offense, where there is no alcohol in your system, you will face a fine of $2500 AND a jail sentence of at least 6 months but not more than 12 months AND an additional license suspension.
If you have a blood alcohol level of .02% or greater when you are stopped the punishments are even more severe:
- For a 1st offense, you will face a fine of $1000 AND a jail sentence of 90 days AND an additional license suspension.
- For a 2nd offense, you will face a fine of $2500 AND a jail sentence of at least 6 months but could go up to 12 months AND an additional license suspension.
- For a 3rd or subsequent offense, you will face a fine of $5000 AND a jail sentence of at least 2 years but could go up to 5 years AND an additional license suspension.
As important as having a driver’s license is to most people, in Pennsylvania driving is a privilege not a right and that privilege can be taken away for several reasons. Among the reasons someone might lose their driver’s license is because they have gotten too many points on their record, they have received a medical suspension, they failed to pay fines imposed by a court, or they received a suspension associated with a criminal conviction.
Pennsylvania takes a hard stance against people who are caught driving with a suspended license. If your license is suspended for anything other than a DUI and you are caught driving, you can be charged under section 1543(a) of the Vehicle Code for “Driving Under Suspension”. Like many driver’s license related offenses, the more convictions for driving under suspension you have the more serious the punishments become.
- For a 1st offense, this is a summary traffic offense, which will result in a $200 fine AND an additional license suspension.
- If this is your 2nd, 3rd, 4th, or 5th offense, you will face a fine between $200 and $1000 AND a possible jail sentence of up to 6 months AND an additional license suspension.
- If you are facing a 6th or subsequent offense there is a fine of $1000 AND a jail sentence of at least 30 days but not more than 6 months AND an additional license suspension.
Pennsylvania has multiple ways, under section 3802(d) of the vehicle code, to charge someone who is driving with controlled substances or other drugs in their system. These include driving after having used illegal street drugs or after having taken drugs that were prescribed by a doctor or after having used drugs that are normally prescribed by a doctor without a valid prescription. Subsection (1) applies to anyone who drives a motor vehicle with any amount of a Schedule I drug or a Schedule I drug metabolite in their blood. It also applies to anyone who has a Schedule II or Schedule III drug or metabolite in their system if the Schedule II or Schedule III drug was not prescribed by a doctor. A metabolite is the by-product of a drug as it breaks down in your system. Different drugs have different metabolites. This section does not require that you be under the influence of the drug or that you be impaired. Simply having the drug in your blood is enough to face charges.
Subsection (2) applies to anyone who drives a motor vehicle under the influence of drugs to such a degree that they are incapable of safe driving. This section applies to all drugs, even those prescribed by a doctor and taken as prescribed.
Subsection (3) applies to anyone who drives a motor vehicle under the influence of a combination of drugs and alcohol to such a degree that they are incapable of safe driving. If you have both drugs and alcohol in your blood you are likely to be charged under this section as well as under the alcohol related sections of the DUI statute.
Subsection (4) applies to anyone who drives a motor vehicle under the influence of solvents or noxious substances. Again, this section does not require that you be impaired, only that you have a solvent or noxious substance in your blood. A solvent or noxious substance is any substance containing one or more of the following chemical compounds: acetone, acetate, benzene, butyl alcohol, cyclohexyl nitrite, ethyl alcohol, ethylene dichloride, gaseous or liquid fluorocarbons, isopropyl alcohol, methyl alcohol, methyl ethyl ketone, nitrous oxide, pentachlorophenol, petroleum ether, or toluene. This section is often charged when people use inhalants, sometimes called huffing, and then drive.
The penalties for conviction of any of the above DUI subsection is the same as the penalties for the highest tier Alcohol DUI offense. For more specific information about possible punishments for DUI tiers and number of offenses please see the chart provided under our resource tab. resources page
There are a lot of steps involved in accurately determining a persons blood alcohol concentration (BAC). Each step must be completed to properly test your blood sample. Any misstep along the testing process can result in an improper result. Most blood samples for DUI cases in Pennsylvania are tested either in a PA State Police Crime Lab or at a private lab called NMS Labs. Both use the same type of testing called gas chromatography. This method tests the unknown sample (your blood) against known samples (matrix for alcohol, marijuiana, or ther controlled substance). The known samples must be programed into the machine first before testing so the machine learns what it is looking for. The known samples must be properly prepared and tested. The unknown samples (your blood) must be stored, and prepped for testing properly.
Testing usually occurs a week or more after the samples is taken from you. A few issues that can occur during the testing process are improper storage of the sample, using the wrong sample tubes, using an improper internal standard, clotting of the blood sample, contamination, improper sample preparation, having a poorly maintained testing machine, co-elution, analytes in the blanks, retention and relative retention times being off, and many more. It is important to determine if the Labs followed all of the proper procedures and protocols to make sure the test result is accurate.
If you are under the age of 21 and are charged with a DUI in Pennsylvania you will be charged under a separate section of the DUI law. The way PA defines a DUI for a individuals who are not old enough to legally drink in PA is where your BAC level is above .02% within two hours of driving, operating, or being in physical control of a vehicle. The Commonwealth does not have to prove you were incapable of safely driving. They only have to prove that your BAC level was above .02% within two hours. In PA you BAC is determined by either a blood or breath test. No other testing method is approved in PA for determinating your legal BAC level.
As a minor your DUI offense is automaticly a teir 2 offense. If your BAC is over .16 you may also face additional DUI charges under the higher tier based off of your BAC level. For more specific information about possible punishments for DUI tiers and number of offenses please see the chart provided under our resource tab. resources page
In addition to being charged with a DUI most of the time you can also be charged with purchase, consumption, possession or transportation of liquor or malt or brewed beverages. This offense carry minimum penalty of a fine of up to $500 plus court cost, and a 90 day license suspension for your first offense. If you have a second violation there is a license suspension of 1 year and a fine of not more the $1000. A third or subsequent offense caries a license suspension of 2 years and a fine of not more the $1000. Notification of this offense must be made by the arresting agency to your parents or guardians.
If you receive a DUI with a child in the vehicle Pennsylvania increases the punishment for the DUI offense substantially. For this section of the DUI statute a minor/child is defined as anyone under the age of 18. If this is your first or second DUI charge then the charge is automatically increased to the highest tier and the grading is increased to an Misdemeanor 1. This means that your maximum penalties are increased to a possible 5 year jail sentence. If it is your third or subsequent DUI then the charge is graded as a Felony 3 which means that maximum possible sentence is increased to 7 years.
If it is the first time you are convicted for a DUI with a minor occupant the mandatory fine is increased to $1000 and your community service hours are increased to 100 hours. If you are convicted of a second DUI with a minor occupant the mandatory fine is increased to $2500 and the mandatory jail is increased to at least one month but not more then six months. For a third or subsequent conviction of a DUI with a minor the jail time is increased to not less then six months but not more then two years. This is all inaddition to your mandatory minimum sentences that could occur based on your BAC level. For more specific information about possible punishments for DUI tiers and number of offenses please see the chart provided under our resource tab. resources pageIn addition to the increased DUI penalties you could also face additional criminal charges such as Reckless Endangerment of Another Person, graded as a Misdemeanor 2, punishable up to two years. Or, Endangering the Welfare of a Child, which could be graded anywhere from a Misdemeanor 1 to a Felony 2, which is punishable up to 10 years and a $25,000 fine. These additional charges can be charged for each child in the vehicle with you at the time of the DUI. This means that the penalties can escalate very quickly when children are in the vehicle with you when you are stopped and charged with a DUI.
In Pennsylvania, marijuana and tetrahydrocannabidols (THC) are still listed as Schedule I drugs. Our DUI laws, as mentioned earlier, have not changed. In particular, the statutes relating to the presence of any amount of THC or its metabolites whether you are impaired or not are still on the books. That is the most sinister aspect of the DUID law in Pennsylvania. Although it will be legal for authorized patients to ingest the legal forms of marijuana, once they take control of a vehicle, they become instant criminals according to the terms of our DUID law.
It is without dispute that now, and in the future, our legislature and citizens will not find it acceptable to drive while impaired by THC, whether it is prescribed or not, or while impaired by any other legal or illegal drug for that matter. Nobody wants impaired drivers on the road. The legislature’s main failure in drafting and passing the Medical Marijuana Act was not changing the scheduling of approved forms of marijuana to Schedule II drugs at the same time as the Act was passed. Especially when it comes to the presence of 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH) in a person’s blood. 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH) is also referred to as Delta-9-Carboxy. It is well known that Delta-9-Carboxy has zero pharmacological effect on a person. This is the compound that can be found in the bloodstream for days as it is stored in the fat cells of the human body.
I am often asked questions about marijuana-based DUI cases, and I find that the basic pharmacology of marijuana DUI cases is not well known. So, before I discuss the legal issues of our new Medical Marijuana Act in relation to our DUI laws, I believe a quick lesson in the pharmacology of marijuana and the use of proper terminology is in order. A wise lawyer taught me long ago that when using science to defend people charged with crimes, I always use the right terminology or the government witnesses will turn improper vocabulary around on you and make you look bad even if they are saying absolute scientific garbage on the stand.
Remember, marijuana is a plant and our DUID laws do not cover marijuana. It is not proper to say marijuana was found in your blood. What was found was THC and its metabolites. Whether you are a medical marijuana patient or not, it is still illegal to have any amount of THC or its metabolites in your blood so long as a minimum detection level has been met or exceeded. The relevant compounds we are dealing with are: Delta-9-THC, 11-Hydroxy-Delta-9-THC (THC-OH)(Hydroxy), and 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH)(Carboxy).
When marijuana is smoked, vaped, or eaten, the first compound that is released into the bloodstream is Delta-9-THC. Delta-9-THC is the pharmacologically active compound in marijuana and it has a very fast dose response curve. In layman’s terms, it is what hits you right away and gets you high when marijuana is smoked, vaped or eaten. (Although when marijuana is eaten it is a more gradual high than when smoked or vaped but an in-depth discussion of that is for another day.) Once Delta-9-THC enters the bloodstream, it is broken down quickly into Hydroxy which is an active metabolite but not nearly as pharmacologically active as Delta-9-THC. Hydroxy breaks down rapidly into Carboxy which again has zero pharmacological effect. Here is a practice pointer. Barring any analytical testing errors, if Hydroxy is present in the bloodstream that is a clear indicator of recent usage.
As I said before, the Medical Marijuana Act is setting up medical marijuana patients to become caught up in our criminal justice system because THC is still being listed as a Schedule I drug. Until our legislature sees the error of its ways, and either reschedules THC as a Schedule II drug, or rewords Section 3802(d)(1), we have to aggressively litigate these cases. Here are two defenses that should prevail against Section 3802(d)(1) charges.
The Overbreadth Defense
The issue of overbreadth of the DUID statutes in relation to THC was dealt with in Commonwealth v. Etchison. In that case, the defendant argued that Section 3802(d)(1) of the DUID law was unconstitutionally overbroad. The Superior Court ruled that the statute was not overbroad. Here is the key wording that the Superior Court used in finding the statute was not overbroad, and it is also the key wording to argue that Section 3802(d)(1) is now unconstitutionally overbroad in relation to defendants who are certified medical marijuana patients under the Medical Marijuana Law:
As our Supreme Court has explained, “[a] statute is ‘overbroad’ if by its reach it punishes constitutionally protected activity as well as illegal activity.” Commonwealth v. Barud, 545 Pa. 297, 305, 681 A.2d 162, 165 (1996). If it does not reach both categories of activity, ‘then the overbreadth challenge must fail.’ Costa, 861 A.2d at 362. There is no constitutional right to the use of marijuana prior to driving; indeed, under Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780–101 et. seq., which has not been deemed unconstitutional, an individual is prohibited from any use of marijuana. Thus, Appellant's challenge to 75 Pa.C.S.A. § 3802(d)(1) must fail.
Now our General Assembly has created legal uses for marijuana and THC. The Medical Marijuana Law specifically sets forth the General Assembly’s policy on this matter. In part, the General Assembly states that scientific evidence suggests that medical marijuana is one potential therapy to mitigate suffering in patients, a carefully regulated program will enhance patient safety, and that the legislation’s goal is to provide access to medical marijuana that balances the needs of patients and promotes patient safety.
In Etchison, the Superior Court cited our Supreme Court’s decision in Commonwealth v. Barud. I believe the Supreme Court’s two-prong analysis for determining whether a statute is overbroad is met as applied to Medical Marijuana Act patients. In fact, under the two-pronged test set forth in Barud, I would argue that Section 3802(d)(1) charges in relation to THC are unconstitutional to people who consume marijuana illegally now. However, a defendant with THC in their system should not be challenging the constitutionality of this statute. It should be a defendant who is a registered medical marijuana user whose case should be the first challenge Section 3802(d)(1) under the new law.
The second defense comes from some recent case law. There have been two cases decided in early 2020 that in combination say that if a medical Marijuana Patient is complying with the Medical Marijuana Ac then the THC in your system is not schedule one and thus not an automatic DUI. That goes for the metabolites as well. What does complying with the Medical Marijuana Act mean? It means using edibles or vaping and keeping your medicine in its original packaging from the dispensary. No smoking the leaf in a pipe or bong and storing and transporting the medical marijuana in anything other than what it was packaged in when leaving the dispensary.
The Medical Marijuana Act is currently a blessing and a curse. It is a blessing, in that it brings Pennsylvania out of the dark ages in terms of modern science’s understanding of the medicinal properties of marijuana. It will also allow our sickest citizens to come out of the dark and obtain their marijuana legally and avoid the dangers of illegal marijuana purchased on the street. It will also save our sickest citizens from marijuana possession charges. However, it will make them violators of our DUI laws which are worse and have more collateral consequences than marijuana possession charges. Until our DUID laws change, either through aggressive defense of the citizen accused or our legislature waking up and realizing that the DUI laws need to be modified, medical marijuana patients are in serious jeopardy of criminal and collateral consequences under this new law.
Pennsylvania Department of Transportation does not require individuals who have an Ignition Interlock License to install an Interlock system on vehicles that are used specifically for work purposes. If the vehicle is own by the business and only used for business needs the employee with an Ignition Interlock License may use the vehicle. However this can only be done after the owner of the business completes the Ignition Interlock Employment Exemption Affidavit.
This exemption does not apply for school buses, school vehicles, or transport vehicles for more than 15 people. The employee can not own any part of the business or have any ownership of the vehicle being exempted. The vehicle cannot be used for any personal purposes of the employee, and cannot even be made available to the employee for possible personal use. Nor can this exemption be used by someone who is doing certified inspections or test driving vehicles.
The Employment Exemption Affidavit must be completed in its entirety and be in the driver's possession at all times when operating the employer owned vehicle for employment purposes.
DUI Defense Questions & Answers
By statute, the only way you will not lose your license in Pennsylvania is when you are convicted of a first offense DUI for Incapable of Safe Driving, or where the blood alcohol content is less than .10%. If you are convicted of any other DUI in Pennsylvania, your driving privileges in Pennsylvania will be suspended for 12 to 18 months followed by an additional 12 months with an interlock restricted license. See our resources page for additional information on license suspensions. resources page
If you are a minor and your blood alcohol content is over .02% you will face a license suspension. A minor is defined as someone under 21 for this area of law since the legal drinking age is currently 21. If you are convicted of any other DUI in Pennsylvania, your driving privileges in Pennsylvania will be suspended for 12 to 18 months followed by an additional 12 months with an interlock restricted license. See our resources page for additional information on license suspensions. resources page
Other factors that can increase your license suspension for DUIs in Pennsylvania. Are If you were involved in an accident, if you were operating a commercial or school vehicle, if you have controlled substances in your system, or if you refuse a chemical test just to name a few factors.
If you have a Commercial Drivers License you will face a one year suspension of your Commercial Drivers License for any conviction of a DUI or any ARD placement for a DUI. If you have any other major offenses against your CDL then you will face a lifetime ban on your Commercial Drivers License.
If you are convicted of a DUI in Pennsylvania and are facing a license suspension Pennsylvania, no longer offers an Occupational Limited License for DUI offenses. This license was also known as the Driver to work license or bread and butter license. Now Pennsylvania offers the Ignition Interlock Limited License. This license allows you to take all or part of your suspension time and serve it on an ignition interlock system. Please see our resources page where this license is discussed in greater detail. resources page
One final thing that you must be aware of is the 5-year loss of license if you are found to be a habitual offender. You become a habitual offender if you have three or more violations of major traffic offenses within 5 years. DUI is, of course, a major offense. This 5-year loss of license is in addition to any loss of license you may have received for your DUI conviction. If you are a habitual offender, you will be ineligible for the ignition interlock limited license.
Field Sobriety Tests, also known as FSTs, created by the National Highway Traffic Safety Administration (NHTSA). They were designed to help police determine if a person is impaired by alcohol. Three main tests are used, normally in addition to a Portable Breath Test (PBT). The results of these tests are used to establish Probable Cause to request a blood test or more reliable breath test.The three main FTSs are:
- Horizontal Gaze Nystagmus (HGN) Test: This test is done with a pen or small light to examine the movements of the pupils of the eyes. If your pupils involuntary move during this test it could be a sign of impairment.
- Walk and Turn Test: This test is a nine step, heel to toe, straight line walking test, and is used to measure coordination and balance to show signs of impairment.
- One Leg Stand Test: This test involves standing on one leg with the other leg about six inches off the ground, while counting out loud. This test is also used to measure coordination and balance to show signs of impairment. .
Yes. In fact, in the Commonwealth of Pennsylvania individuals are almost always charged with multiple counts of DUI. There are multiple ways a DUI can be charged. The Commonwealth will charge a Defendant with everything they can at the beginning of the case rather than try to add it later. Even if someone is not charged with multiple DUIs initially, these extra DUI charges will almost certainly be added by the District Attorney office later in the process.
For example - if you are charged with an alcohol based offense, it is not uncommon to be charged with all the DUIs that relate to alcohol. That would mean all three tiers as well as an incapable of safe driving DUI charge, for a total of four charges. There could be even more possible DUI charges if there are controlled substances involved, if you are under 21, or if you were operating a commercial or school vehicle.
However, even if someone is charged and convicted with multiple offenses, these offenses combine for the purpose of sentencing. In other words, you can only be sentenced for one count of DUI for an incident regardless of the number of charges. The Commonwealth will always ask the Court to impose a sentence for the DUI offense that incurs the most severe punishment.
Individuals with a Commercial Driver’s License (CDL) must be extremely careful with using alcohol, as well as any and all other controlled substances (including prescribed medications). A CDL driver who is charged with a DUI can lose their Commercial License even if they were not using their CDL when they committed the alleged crime. This means that if you are convicted of a DUI even in your personal vehicle you will lose your CDL.
The first time a CDL holder is convicted of a DUI, they will lose their Commercial Driver’s License for a period of 1 year. If they are caught for a DUI or other major offense a second time, according to PENNDOT rules, they will be banned for life from having a CDL. In other words, the Commercial Driver’s License only allows ONE mistake - a second mistake means a lifetime ban.
If you have a HAZMAT Certification along with a CDL, there is a 3-year ban on the HAZMAT for a first offense. A second offense is a life time ban with your CDL.
Yes. The number and kinds of programs available to you for your case will depend on your particular circumstances and which county is prosecuting your case. The most widely available programs are:
- Accelerated Rehabilitative Disposition (ARD)
- Restrictive Punishment (RP) (formally known as County Intermediate Punishment (CIP or IP)
- Treatment Court (DUI Court or Drug Court)
- State Drug Treatment Program (SDTP) (formally known as State Intermediate Punishment (SIP))
Accelerated Rehabilitative Disposition (ARD) is designed for first time offenders. There are instances where an individual may enter into this program more then once, but these are rare. If you are accepted into the ARD Program you will be placed on supervision for up to two years. You will have to comply with any conditions the Court deems appropriate. These typically include community service, a drug and alcohol assessment and treatment as recommended, and no non-prescribed drug or alcohol during the time of the program. This Program offers several benefits:
- It removes the mandatory jail time required for DUI convictions
- It substantially reduces and can in certain situations eliminate license suspensions
- At the completion of the Program all of the charges placed into the Program are dismissed and you will not have a conviction on your Criminal Record for any of those charges
- Upon completing the program you will be eligible to expunge the charges that were placed into the program from your criminal record.
Restrictive Punishment (RP). This is a County run Program that is for First Offenders that are not eligible for ARD, people with a Second DUI Offense, and in some cases and counties people charged with a Third DUI Offense. This Program allows you to serve a portion of up to your entire mandatory jail sentence on In-Home Confinement (also known as House Arrest). Often the time spent on In-Home Confinement is longer then the time that you would have spent if you would have instead opted to go to jail. The benefits of this program is that you do not have to spend as much time in jail, you can and will be required to maintain your employment, and continue with treatment as recommended. This could be either out-patient or in-patient treatment.
Treatment Court. This Program is a County Program designed in most cases for people charged with DUIs who are in need of treatment and extensive supervision. This Program is usually not available unless the individual does not qualify for ARD or RP. These Treatment Courts are heavily based in treatment and supervision. Usually there is some jail time required in this program, however the time of incarceration is greatly reduced from the mandatory jail time required by statute. Most Treatment Courts require their participants to attend treatment which can be anything from an In-Patient facility, to daily meetings both individually and group, to NA and AA meetings depending on what the Treatment Court team deems appropriate for you. Participants in Treatment Court appear at the Courthouse, usually bi-weekly, to meet with the Judge and other members of the Treatment Court team who monitor all of the participants progress. In addition the participants will meet regularly with their probation officer and other members of the treatment team who closely monitor your progress in the program. In addition to treatment the program is also able to help participants with finding housing and employment. This program is designed to address the participants addiction to alcohol and/or drugs.
State Drug Treatment Program (SDTP). This Program is only available for people who have been sentenced to a state prison sentence of at least two years. You will be evaluated by the Department of Corrections (DOC) for this program after you are sentenced. If accepted into the program you will serve a portion of your sentence in jail. Then a portion of your sentence in an In-patient facility, and a portion of your sentence at a half-way house. This program usually last for two years.
First and foremost, if you believe you may have an issue with substance abuse; either controlled substances and/or alcohol, you should get a drug and alcohol evaluation from a licensed treatment provider.
Pennsylvania law does make allowances for people who get treatment before they are sentenced. It always makes a good impression with the Judge and prosecuting attorney if a Defendant voluntarily seeks treatment without being ordered to by the Court. Additionally if you successfully complete treatment, the court may (but does not have to), count the days spent in an in-patient facility as credit towards any jail sentence you may receive. This is at the discretion of the Judge and is determined at sentencing. The Judge usually has the benefit of a Pre-Sentence Investigation (PSI), which can be used to show the Judge details of your treatment prior to sentencing.
ARD stands for Accelerated Rehabilitative Disposition. It is a pre-trial diversionary program. This particular diversionary program is usually offered only to first time offenders of non-serious offenses, typically misdemeanors where no one was hurt. If accepted into the ARD Program you will be placed on supervision prior to any conviction or guilty plea. The length of supervision can last up to 24 months. If you are being placed into this program because of a DUI you will also have to attend and complete the mandatory Highway Safety classes. You may also be required to have a drug and alcohol analysis completed and complete treatment as recommended. In addition most DUIs still carry a license suspension even in the ARD program. The length of suspension will depend on your Blood Alcohol level. No suspension for BAC less than .10, 30 days for BAC between .10 and .16, and 60 days for BAC over .16. There can also be additional suspensions if you are in possession of alcohol and under the age of 21. First for the DUI you will have a 90 day suspension then the possession of alcohol will have an additional 90 day suspension. Cost and fines for the ARD program range vary across the state they usually range from $1500-2500.
Once you complete the ARD program some major benefits will be available to you. First, there is no jail sentence when you enter into the ARD program. Second the license suspension is greatly reduced from 12 months to as stated above for DUI offenses. Third, you are never convicted when you enter the ARD program, thus this allows for the charged to be dismissed and for you to expunge them from your criminal record. Even if your case is expunged if you are charged with another DUI offense in the 10 years after the expunged offense will still count as a first offense. This means that any subsequent DUI will be considered a second offense subject to more jail time and license suspensions. This expungement does not remove the license suspension from your driving record. These benefits sound great and this is why most people think that ARD is the easy way out to get out of trouble with the Court. In most cases this might be true but not all.
Some people will not be eligible for ARD if they have a prior criminal conviction, were involved in a crash that resulted in serious injury or death, had a minor under the age of 14 in the vehicle at the time of DUI arrest, or if the DA is just not willing to offer the program. The ARD program is controlled by the District Attorney; they must initially aprove you for the program. Then you will be presented to the Court for final acceptance. There is no “right” to ARD and either the DA or the Judge could deny you admission for many reasons.
With that being said the ARD program is still a very appealing program for most individuals, however there are some situations were accepting this program may have very bad unintended consequences. For example if you have a CDL and take the ARD program, this will count as a major violation against your CDL meaning that your CDL will be suspended for at least 12 months. If this is your second major violation against your CDL then it will result in a lifetime ban for your CDL. In addition if you hold a professional license; doctor, pilot, lawyer, school teacher or nurse, you may still be subject to penalties by your regulatory bodies. You must contact them first to understand the collateral consequences that could result from entering into the ARD program. Once you have all the ramifications figured out then you can make an educated decision on whether or not ARD is right for you.
Pennsylvania's Driving Under the Influence statute allows for police officers to make arrest for DUI if some has actual physical control of the movement of a vehicle, even if they are not actively driving the vehicle. The Courts have interpreted this to mean that, if an individual is either in or around a vehicle with the keys in their possession allowing them to operate the vehicle they are in actual physical control of the vehicle.
This means that if you are leaving an establishment and feel that you are unable to drive home you can be charged with a DUI for getting into your vehicle to sleep it off, even if you do not move your vehicle. The police can and will likely charge you with a DUI. In Pennsylvania you can be charged with Driving Under the Influence if you are on a highway or traffic way. In basic terms this is a road or other area in which people can operate their vehicles which is open to the public. This includes parking garages and parking lots, and even private land. Because of all of these nuances it is important to hire a firm with experience in all kinds of DUI situations.
A BAC test is one of two chemical test allowed under Pennsylvania law for DUI offenses. If suspected of a DUI the police may ask you to submit to either a Blood Test or a Breath test. Both of these can be used to determine Blood Alcohol Content (BAC) level. The police can only ask for one of these tests if they have probable cause to believe you are under the influence of alcohol and are incapable of driving safely. Whether or not your refuse to submit to a BAC test is ultimately your decision, there are different consequences depending on the type of test requested by the police. Whether or not it is in your best interest to refuse the test depends on the type of test requested and on your personal history with previous DUI convictions.
If you refuse to agree to a BAC test - PennDOT can punish you through civil law by suspending your driver’s license for a minimum of 12 months. PennDOT does this by suspending your privilege to drive in Pennsylvania. If you have a Pennsylvania license you will be required to turn that license into PennDOT. If you have an out of state license you will have to submit a form acknowledging your suspension of driving privileges in Pennsylvania. If the state which issued your license finds out about the suspension they can suspend your license, but this depends completely on each individual state and their laws handling such matters. If you refuse a BAC test, the officer will have to fill out the refusal paperwork and mail this paperwork into PennDOT. There is sometimes a delay between the refusal and the filing so there is sometimes opportunity for an intervention before the filing with PennDOT occurs. If not then PennDOT will send you suspension paperwork and tell you when and where to turn in your license. This suspension can be appealed; however, there is a strict deadline of 30 days to appeal this suspension, determined by the 'mail by' date on the letter of suspension from PennDOT.
In addition to the civil license suspension, you will still be charged with a DUI. If you refused a blood test your offense will be the lowest tier of DUI. If you refused a breath test your offense will be increased to the highest tier of DUI. The Courts have made this distinction between Breath and Blood samples, stating that there is a distinction between capturing the air that you breath out and using a needle to puncture your skin to remove a blood sample. Thus if you are presented with a breath test it is almost always in your best interest to not refuse the test. If you do and are then subsequently charged and convicted of the DUI the charge will be to the highest level of DUI possible. With a breath test it is usually better to provide the sample as your results may be in a lower level or not above the legal level at all.
When a Blood test is requested each individual will have to make their own choice. If you are requested to take a Blood test and you refuse, your DUI charges will remain in the lowest level of DUI. This could greatly reduce the criminal penalties that you could be facing. However, you will receive the additional minimum 12 month license suspension from PennDOT for refusing the test. Where this really matters is when an individual is facing a second or subsequent DUI, as the lowest tier DUI can keep an individual in county jail, while the higher tiers could be state prison sentences. Thus whether or not you refuse a blood test will be your decision based on your own personal history and what you are willing to risk moving forward with the different punishments.
If you refuse the BAC test then there are no results for your lawyer to challenge in Court. In addition your refusal can and will be used against you by the District Attorney in an effort to get a conviction for the DUI offense.
For individuals who do not have a Pennsylvania driver’s license, you need to be very careful when you receive a DUI in the state of Pennsylvania. If you are convicted of a DUI in Pennsylvania, Pennsylvania cannot suspend your out of state license but what they will do is suspend your driving privileges in the state of Pennsylvania. The Pennsylvania Department of Transportation will send you your suspension information telling you to turn PA your driver license into them. Since you do not have a PA license you need to fill out a PennDOT form that says, “I acknowledge my suspension in the state of Pennsylvania” and state on that form that you are not licensed in Pennsylvania. You will then send this form into PennDOT instead to your driver’s license. PennDOT will hold on to that form until your suspension is up. You will also have to pay a restoration fee and complete any other requirements that are in the suspension information that PennDOT sent to you. Once everything is complete PennDOT will restore your driving privileges in the state of Pennsylvania.
The big catch here is if the state where your license is issued from finds out about the suspension in the state of Pennsylvania through reciprocity. If your home state has reciprocity with PA your home state would be made aware of the PA suspension and they could also suspend your license. Pennsylvania can only suspend you in the state of Pennsylvania. The state that issued you your license can suspend your license for an offense that you committed in the state of Pennsylvania. The length of that suspension is dependent on the laws in that particular state. Your license could be suspended for the same amount of time as Pennsylvania or they could actually suspend you for a longer period of time depending on their laws.
The first thing people need to understand is that you are not legally obligated to do a whole lot at a traffic stop. You should be cordial and respectful with the officer and you want to comply with their commands. If they ask you to turn the car off or get out of the vehicle then comply and do that. However, your only legal duty in the state of Pennsylvania is to provide your license, registration, and proof of insurance. You do not have to say or provide anything else. If the police are asking you “Why did I pull you over,” you do not have to answer that. You don’t have to speculate on what you may or may not have been doing that was illegal. This also goes to the Field Sobriety Tests that offiers may ask you to perform. You can choose to decline these tests. There are a various numbers of reasons why you might decline to do those tests. However, if the officer asks you to give a breath or blood test, there are ramifications for declining or refusing to take those tests.
There are three different levels of custody. Each level bring new rights and protections for you. Just because you were pulled over and the officer is asking you questions does not mean you have to be “Mirandized” or “read your rights”.
The lowest level is a “Mere Encounter” is where you happen to come into contact with a police officer on the street or driving down the road. This is simply a mere encounter with the officer; the officer was not looking for you, you both just happened to be there at the same time. Basically, your only obligation here to the officer is if they ask for identification, you must provide it. Other than that, you do not have to do anything else for the officer or answer any of their questions.
The next level is an “Investigatory Detention”. This is your typical traffic stop where you are pulled over. The officer has some reasonable belief that you may have committed some type of offense. They can legally briefly detain you to investigate that offense. This gives them a little bit broader powers to detain you for a period of time to determine whether or not a law has been violated. They are allowed to investigate what law they believe you broke until they determine whether they have enough evidence to determine whether a crime has been committed. At that point, you are detained, but your rights have not fully kicked in at this point. Many individuals get “investigative detention” confused with the next level, which is called “custodial detention.” While it is true that you are being detained with “investigative detention,” it’s only for investigative purposes. At this level the officer does not have to “mirandize” or “read you your rights” and you do not have to answer any questions.
The highest level is “Custodial Detention.” This is the equivalent of a full blown arrest. You are not free to leave and the officers at this level must read you your rights before they start to question you. In other wards now you need to be “Mirandized”. What this means is that you can be in custodial detention and not receive you Miranda Rights as long as the police are not asking you questions about the case. Once the officers start interrogating you, then your rights apply and they must notify you that you have the right to remain silent and the right to an attorney. In addition at this level you are not required to answer any of their questions.
Regardless of whether or not you were “Mirandized” or “read your rights” you always have the option and right to remain silent and not answer any questions asked by the police.
In Pennsylvania, if you are convicted of a DUI, just as with any other conviction, it will stay on your criminal record forever. However, just because you have a DUI conviction on your record does not mean that everyone will be able to see it forever. There is the possibility of having certain convictions on your record sealed from public view after ten years through the Clean Slate Act. Most DUI convictions are eligible to be sealed under this Act if you meet the requirements. If your conviction is sealed only certain limited groups of people, like law enforcement and certain employers, will be able to see the conviction on your record.
If you enter and successfully complete the ARD Program for a DUI the charge, it will be dismissed without a conviction. You can then apply to have the arrest and ARD placement expunged from your Pennsylvania Criminal Record. The expungement is not automatic and if you do not complete the paperwork for the expungement the arrest and ARD placement will remain visible on your criminal record.
A DUI conviction will stay on your Pennsylvania driving record for life. If you have a license from some other State, you will need to check with that State to see if the DUI conviction will appear on that State’s driving record.
The only way to get a conviction for a DUI, or any other type of conviction in Pennsylvania removed from your criminal record is to receive a Governor’s Pardon. There is a process in Pennsylvania to apply for a Governor’s Pardon. You can find more information on the process to apply for a Governor’s Pardon online at bop.pa.gov. If you are one of the lucky few who receive a pardon, then you will be eligible to have to conviction expunged from your record.
A DUI conviction from another state will not show up on a standard Pennsylvania Criminal History check. However, that conviction will show up on a nationwide criminal history check. When the Police search your criminal history, they can access criminal records from other states by using your name, birth date, social security number, and other identifying information which might be associated with your criminal history.
The Police can, and most often do, search for driving records in other states. A conviction from another state for a DUI will usually also show up on that State’s driving record, as most DUI convictions require some type of driver’s license suspension. Whether a DUI conviction from another State shows up on your Pennsylvania Driving Record depends on several factors, including whether this is your first DUI offense. As of 2020, if you are convicted of a DUI in another state, PennDOT will not take any action on your license if that out of state conviction is the first DUI conviction that you have ever received.
If you refuse a blood test in Pennsylvania and you are later charged with DUI, the DUI charges will be under Tier I, the lowest tier possible for an alcohol-related DUI. If there was also an accident involved in your case where someone was injured or there was some damage to property, the DUI charges will be under Tier II, the next highest tier possible for an alcohol-related DUI. If you are charged with DUI for being under the influence of a controlled substance or some other drug, the DUI charges will be under Tier III, the highest tier. The police can apply for a search warrant to get your blood to conduct testing. If you refuse a blood test after a search warrant is issued for your blood, the DUI charges will be under Tier III, the highest tier possible for an alcohol-related DUI. See our resource section for more information on the possible sentences for each of the Tiers. resources page
If you refuse a breath test in Pennsylvania and are charged with DUI, the charges will be under Tier III, the highest tier possible for an alcohol-related DUI. A conviction for a Tier III DUI has a mandatory minimum sentence that ranges from as little as three days in jail to as much as one year in state prison. What mandatory minimum applies to a Tier III conviction depends on how many DUI convictions you have had in the past 10 years. See our resource section for more information on the possible sentences for Tier III offenses. resources page
The police in Pennsylvania can apply for a search warrant to get your blood to conduct testing if they suspect that you are driving under the influence. If you refuse a blood test after a search warrant is issued for your blood, any DUI charges will be under Tier III, the highest tier possible for an alcohol-related DUI. There is also the possibility that you might face criminal charges in addition to the DUI charges for refusing a blood test after a search warrant has been obtained. Some jurisdictions have charged people with Obstructing Administration of Law or Other Governmental Function when they have refused to comply with a search warrant to obtain their blood. Obstructing Administration of Law is a Second Degree Misdemeanor, with a maximum sentence of up to two years of incarceration and a fine of up to $5000. See our resource section for more information on the possible sentences for each of the Tiers. resources page
In Pennsylvania, most of the time when a person under the age of 18 is charged with a crime the charges will be handled in juvenile court. Juvenile court is designed to rehabilitate minors and not to punish them. Unlike an adult who is charged with a DUI, a juvenile who is charged with a DUI does not face mandatory jail sentences if they are convicted of a DUI. Once a juvenile is under the jurisdiction of the juvenile court, the court has authority until the juvenile turns 21. This means a Judge could place a juvenile in either a detention center or treatment facility until they are 21. However, long periods of detention or treatment are rare and are usually only for violent crimes.
If a juvenile is found by the court to have committed a DUI, the Judge can adjudicate them delinquent. This is the equivalent of being found guilty in “adult” court. At disposition, the juvenile equivalent of sentencing, the juvenile will be placed on juvenile probation and will have to attend counseling. The law requires the court to review the disposition every six months to review how the juvenile is doing generally and if they have completed their requirements for supervision or if they need additional time.
There is also the possibility of a consent decree. A consent decree is an alternative to being adjudicated delinquent. A consent decree is the equivalent of ARD in “adult” court. If after six months the juvenile completes their program requirements, the charges are dismissed. If the juvenile needs more time to complete the program the consent decree can be extended for an additional six months of supervision. Once the charges are dismissed the juvenile can petition to have their record expunged. Consent decrees are not considered an adjudication of delinquency or a finding of guilt. If the juvenile is placed on a consent decree for a DUI there will be a six-month loss of driving privileges.
Juveniles do have the right to fight the DUI charges. No juvenile should ask for a consent decree or plead guilty to a DUI offense until after their case has been thoroughly reviewed by an attorney. The juvenile court process moves fast so it is essential to get an attorney quickly. For more information on how the juvenile court system works see our blog posts on the subject: Juvenile Cases, The Juvenile System Part 1, and The Juvenile Justice System Part 2.
The cost of a DUI conviction in Pennsylvania is more than just money. There are a lot of collateral consequences and costs associated with a DUI conviction.
Fines alone range from $300.00 to $15,000.00. It is extremely rare for a Court to impose a maximum fine for a DUI, but it is possible. In most counties, judges give the statutory minimum fines. The minimum fines range from $300.00 to $2,500.00.
The costs assessed by the court system add up to usually more than the fines imposed. There are many statutorily imposed costs. They average around $2,500.00. Court costs include the costs of the testing, Court Reporting Network Evaluation, Drug and Alcohol assessment, supervision fees, and other statutorily mandated costs. There is also the cost of prosecution. This cost is determined by the District Attorney office and includes all their expenses incurred in prosecuting your case. This cost can range from zero to thousands of dollars. This might include the prosecutor getting an expert opinion on whether the drugs found in your blood caused you to be impaired. If you are convicted, you will be required to pay the Court system back for the cost of the District Attorney office to hire the expert. If your case goes to trial and the expert must come to court to testify the costs can go into the thousands of dollars.
There are also indirect financial costs of being convicted of a DUI. Some of these could be the cost of losing a job and having to find new employment. The cost of getting rides to and from work. The cost to your reputation. The inability to work in certain professions. The costs of counseling. The loss of your driver’s license. The loss of your gun rights. The loss of your voting rights if the conviction is a felony. The possible immigration issues, or even travel issues with visiting other counties. These are just a few of the potential collateral consequences of being convicted of a DUI.
Yes. In Pennsylvania, the term “DUI” is a shorthand for the offense of Driving Under the Influence of Alcohol or Controlled Substance. Other states might refer to DUIs as “DWI”s which can stand for Driving While Intoxicated, Driving While Impaired, or Driving While Imbibing. If you are convicted of a DWI or DUI in another state, that conviction will be considered a prior offense in the event you are later charged for a DUI in Pennsylvania.
Yes. The DUI law in Pennsylvania makes it a crime to drive while there is marijuana in your blood. The DUI statute does not differentiate “medical marijuana” from “marijuana. Recently, there have been several cases decided by our Superior Court that show there might be defenses to these charges if you were using medical marijuana and followed all of the medical marijuana regulations. However, currently, it is still illegal to operate a motor vehicle with marijuana in your system whether or not it is medically prescribed.
Yes. There are sections of the DUI statute that could be charged if you take prescription drugs and they affect your ability to drive safely, or if you take prescription drugs that either aren’t prescribed to you or not taken as prescribed. When it comes to prescription medication and DUIs in Pennsylvania the prosecutors may have a hard time proving these charges beyond a reasonable doubt if you present the correct defenses. Just because you are taking a prescription medication does not mean that you are incapable of driving safely. However, some medications specifically state that you should not operate a motor vehicle or heavy equipment when using the medication and you should be extra careful when driving after taking these medications.
You are legally allowed to represent yourself at any stage in the criminal justice system. Although you can represent yourself it is usually not a good idea. Unless you know the law and how the system works representing yourself can be extremely detrimental to the final resolution of your case. For instance, in DUI cases you need to know not only the law regarding DUI offenses and defenses, but you should also know how to challenge field sobriety tests and the chemical tests. In addition to this, you need to understand all of the possible alternative sentencing options you may qualify for so you can negotiate the best possible plea deal if you decide to plead guilty.
Hiring a competent and experienced legal team is worth the expense as it is the best way to protect yourself and make sure you get the best possible outcome for your circumstances.
A DUI in Pennsylvania can be a felony in certain circumstances. If it is your third DUI offense within ten years and your BAC greater than .16, or drugs or other controlled substances are involved, or if you refused of a breath test, or if you refused a blood test after a search warrant was obtained, then the DUI will be graded as a felony of the third-degree. If this is your fourth or greater DUI offense within 10 years, it will be a felony of the third-degree. If you have been convicted of Homicide by Vehicle While DUI at any time in your past, then the current DUI charge that you are facing (even if this is your first offense within the past ten years), will be graded as a third-degree felony.
Careless Driving and other summary traffic offense such as Reckless Driving are often also charged when someone is charged with DUI. These charges are usually the probable cause the Officer or Trooper relies on to stop your vehicle. Some of these charges could also be Speeding, Stop Sign violations, or disregarding traffic lanes, to name a few in addition to Careless Driving. Most of the traffic offenses do not require jail time if convicted but the fines can be between $25 and $300. Some of these violations even though they are only summary offenses can carry a jail sentence of up to 90 days, additional driver license suspensions, or result in points being added to your driving record which can result in a license suspension and need to be taken seriously just like the DUI charge.
No. Pennsylvania law specifically says a person cannot be forced to take a chemical test. However, if you refuse a breath test and are then charged for DUI those charges will be Tier III charges. This tier has the highest possible punishment for sentencing purposes if you are convicted. Breath tests do not have the same constitutional protections as blood tests do. If you refuse a breath test, you will face a license suspension because you refused the breath test. This is a separate license suspension from any license suspension you might receive from a DUI conviction.
No. Pennsylvania law specifically says a person cannot be forced to take a chemical test. However, you can still be charged with a DUI even if you refused the blood test. The charges can be filed as either Tier I, II, or III depending on the specific circumstances of your case. For a DUI with no special circumstances, you will be charged under a Tier I. If there was an accident the charges will be under Tier II. If your DUI is for driving while having drugs in your system, the charges will be under Tier III.
The police can get a search warrant to draw your blood for testing. If they do, they still cannot force you to give a blood sample. However, if you refuse a blood test after the police get a search warrant you might be charged with obstruction of justice, in addition to a Tier III DUI. There is also a license suspension separate from any suspension you may receive from a DUI conviction just for the refusal to provide the chemical sample for testing.
There is not a specific crime for refusing a chemical test in Pennsylvania. However, if you refuse a chemical test it may affect the level of DUI charge you later receive. If you refuse a blood test, and the police did not obtain a search warrant and are convicted, you could receive the lowest tier of punishment. If you refuse a blood test after a search warrant is obtained, then you will receive punishment at the highest tier if convicted. If you refuse a breath test, you will also be in the highest tier if you are convicted. Some jurisdictions will also charge you with obstruction of justice if you refuse a blood test after the police obtain a search warrant.
There are civil penalties for refusing a chemical test. Those include a separate 12 to 18-month license suspension and a large “fee” to get your license restored. This is not a criminal issue and can happen whether the police charge you with a DUI or not. This suspension is consecutive to any suspension you receive if you are convicted of a DUI. A suspension for the DUI conviction can range from 12 to 18 months. See our resource guide for more information on sentencing and license suspensions. resources page
House arrest or in-home detention and sentencing options which allow you to serve part of a jail sentence in your house rather than in a jail. The law has recently changed and “house arrest” is now part of a sentencing possibility known as Probation with Restrictive Conditions. One type of “restrictive conditions” is in-home detention. Regardless of the name, they all refer to the same thing, being able to serve all or part of your jail sentence in your own home. Not every county will agree to house arrest in a DUI case. The law allows you to be sentenced to in-home detention, but not every county has the resources to allow for this type of sentence. In addition, there are several restrictions on whether the county will allow you to serve your time at home on house arrest. Some of those are your residence, who you live with, your history with the criminal justice system, whether or not you live in county, whether or not your home county will allowed you into their program, and many more.
If the county does allow for in-home detention, how much time you spend in in-home detention is a complex question. Some counties will let you do all your jail time on house arrest. Some counties make you do more time on house arrest for the privilege of not going to jail. Some counties make you serve part of your time in jail and the rest of the time on house arrest. Which option would be available to you depends on your specific case and what county the offense occurred in.
The Pennsylvania Department of State, Bureau of Occupational Affairs oversees licensing certain professions, including Nursing, Medicine, Cosmetology, Real Estate, and others. They are also in charge of determining if action to suspend or revoke a professional license is necessary.
Currently, a DUI conviction may result in a professional license being suspended or even revoked. Starting at the end of December 2020 the Licensing Rules will change. A DUI conviction should only result in action on a professional license if the DUI is “directly related” to the person’s performance of their duties under the license or the nature of the DUI posses a “substantial risk” to the person’s performance of their duties. An offense is “directly related” if the nature of the criminal conduct for which the person was convicted has a direct bearing on the fitness or ability to perform one or more of the duties or responsibilities necessarily related to the profession, trade, or occupation for which the individual is licensed. A determination of whether an offense poses a “substantial risk” involves the board looking at 11 factors. They are:
1) Criminal conduct involved act or threat of harm, including property/reputation
2) Facts and circumstances around the conviction
3) Number of convictions
4) Increase in age/maturity since the date of conviction
5) Criminal history, if any, after conviction
6) Completion of education/training, including in incarceration
7) References from employers or others (including from incarceration)
8) Personal rehabilitation
9) Meets other licensing requirements
10) Criminal history while engaged in the occupation
11) Any other factor believed relevant to fitness
If you have a professional license and are charged with a DUI or any other criminal offense it is important to make sure you speak with a lawyer who understands both criminal law and the professional licensing laws that apply in your case.
Each situation is unique to their set of facts. It’s important that you hire an experienced team to join you in the fight against the Government. The team at Manchester and Associates has decades of experience and training in fighting these types of cases. Should you find yourself in a situation where you need legal representation you need to contact criminal defense attorneys who know the law inside and out. To discuss your specific situation, contact our team for a free consultation at our toll free number (800)-243-4878 or through the contact tab at the top of the page.