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Legal Blog
As experts in our craft we like to provide our past, current and future clients, as well as our community with resources to better help them navigate the complex world of criminal law. Whether you're seeking guidance in one of our practice areas, looking for practical tips to navigate legal challenges or simply finding a deeper understanding of your rights, our blog is designed to be a valuable resource to you.
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Please note, our legal blog is intended for informational purposes only. While we strive to offer accurate content, the legal landscape is constantly changing and no blog can substitute personalized advice and guidance of a qualified attorney. For a free consultation, please contact us directly.
Will I lose my license if I am convicted of a DUI in Pennsylvania?
The only way you will not lose your license in Pennsylvania is when you are
convicted of a first offense DUI where the blood alcohol content is less than .10%,
and there is not an accident. If you are convicted of any other DUI in Pennsylvania,
your driving privileges in Pennsylvania will be suspended for 12 or 18 months
followed by an additional 12 months with an interlock restricted license. See our
resource page for more information on license suspensions.
If you are a minor and your blood alcohol content is over .02% you will face a
license suspension. A minor is someone under 21 for this area of law since the legal
drinking age is currently 21. Your driving privileges in Pennsylvania will be
suspended for 12 or 18 months followed by an additional 12 months with an
interlock restricted license. See our resource page for more information on
license suspensions.
Other factors can increase your license suspension for a DUI in Pennsylvania. These
include being involved in an accident, operating a commercial or school vehicle,
having controlled substances in your system, or refusing a chemical test just to
name a few factors.
If you have a Commercial Driver’s License you will face a one-year suspension of
your Commercial Driver’s 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 Driver’s License.
Pennsylvania no longer offers an Occupational Limited License for DUI offenses.
This license was sometimes referred to as a “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 resource page when this license is discussed in greater detail.
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.
Ignition Interlock for Work Vehicles
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.
Medical Marijuana and DUI in Pennsylvania
On April 17, 2016, Governor Tom Wolfe signed the Pennsylvania Medical Marijuana Act into law. The effective date of the new Medical Marijuana Act was May 17, 2016. The passing of this law is a boon to those people suffering from several serious and often debilitating medical conditions specifically defined in the act. Just recently, Pennsylvania medical marijuana patients started signing up for the program, and soon, medical marijuana will be available to dispense. Unfortunately, there are a lot of misconceptions about what this law does and doesn’t make legal. The biggest problem with this law is that, as of now, it will lead to the creation of thousands of criminals, or potential criminals, because the DUI laws covering drugs (DUID) in Pennsylvania have not changed.
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.
Getting a DUI with children in the vehicle
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.
I am under 21 and received DUI charges
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.
Issues With Blood Testing
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.
Driving Under the Influence of Controlled Substances
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