March 03, 2010 | Posted in DUI

By Tim George
Erie & Meadville DUI Lawyer & Criminal Defense Attorney

Introduction.

We all are familiar with the saying, "Ignorance is no defense." It means that just because we don't know the law doesn't excuse our behavior or insulate us from the punishment that follows. A basic understanding of the law and the penalties arising from a DUI conviction in Pennsylvania is essential. The more you know, the better. Such knowledge may help you avoid a DUI. Or, if you face a DUI, you can be prepared for what may follow.

As of February 1, 2004, the laws concerning driving under the influence of alcohol (DUI) were changed in many important ways. In this article, we discuss the law and how our Legislature created three tiers of DUI offenses, each with different legal requirements, or elements . The penalties for a DUI conviction depend on the number of previous DUI convictions and the tier of the current offense. The three tiers of offenses are determined largely by the level of the blood alcohol concentration, or BAC. In essence, the higher the BAC, the greater the penalties. There are special rules for minors, drug use and for the refusal to provide a BAC. In addition, you will see that many other requirements are imposed on someone who is convicted of DUI.

The Law.

The three tiers of DUI offenses and the elements of each offense are as follows:

75 Pa.C.S. Section 3802 (a) - General Impairment - (1) a person may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the person is rendered incapable of safely driving, operating or being in actual physical control of the vehicle; (2) an person may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the person's blood or breath is at least .08% but less than .10% within two hours after the person has driven, operated or been in actual physical control of the movement of the vehicle.

75 Pa.C.S. Section 3802 (b) - High Rate of Blood Alcohol - a person may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the person's blood or breath is at least .10% but less than .15% within two hours after the person has driven, operated or been in actual physical control of the movement of the vehicle.

75 Pa.C.S. Section 3802 © - Highest Rate of Alcohol - an person may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the person's blood or breath is at least .16% or higher within two hours after the person had driven, operated or been in actual physical control of the movement of the vehicle.

The rule for DUI of drugs provides the following:

75 Pa.C.S. Section 3802 (d) - Controlled Substances - a person may not be in actual physical control of the movement of a vehicle under any of the following circumstances: (1) there is in the person's blood any amount of (i) Schedule I controlled substance, as defined in the Controlled Substance, Drug, Device and Cosmetic Act or (ii) Schedule II or Schedule III controlled substance, as defined by the Controlled Substance, Drug, Device and Cosmetic Act which has not been medically prescribed for the person or (iii) metabolite of a substance under paragraph (i) or (ii).

The rule for people under the age of 21 involves a lower threshold BAC as follows:

75 Pa.C.S. Section 3802 (e) - Minors - a minor (an person under 21 years of age) may not be in actual physical control of the movement of the vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the person's blood or breath is _.02% _or higher within two hours after the person has driven, operated or been in actual physical control of the movement of a vehicle.

When motorists refuse to provide a BAC, the refusal is treated as a third tier violation (highest rate) and their driver's license for one year, among other things, as follows:

Refusal of Breath, Blood or Urine Test - if you refuse to take a breath, blood or urine test after being arrested for DUI in Pennsylvania, your license will be suspended for a period of not less than one year and you will be sentenced to incarceration for a mandatory minimum period of three days. A person should take immediate action if chemical tests are refused. The arresting officer must forward Notice of Refusal (DL-26 Form) to inform Pennsylvania Department of Transportation (PennDOT) of your refusal. PennDOT then must notify you that your license shall be suspended [for one year]. You then have only thirty (30) days from the date of the notice from PennDOT to appeal your license suspension in a civil proceeding.

The Penalties.

In Pennsylvania, the blood alcohol concentration (BAC) of the accused and the number of other times the person has committed a DUI will determine what punishment a person receives. As of February 2, 2004, there are three categories into which a person will fall based upon the level of alcohol in their blood stream. That is, based upon their BAC. The three
categories are as follows:

a. .08% - .099%;
b. .10% - .159%;
c. .16% and higher (and any refusal to submit to a test).

All of these categories require a person to participate in a Court Reporting Network (CRN) evaluation. The first and second categories also require a person to complete an Alcohol Highway Safety Program (AHSS). If a person falls into the third category of a BAC equal to .16% or higher (or refused to submit to a blood or breath test) and all subsequent offenses
require a Drug and Alcohol (D&A) assessment and treatment. Further, all second and subsequentDUI offenses require the installation of an Ignition and Emission Interlock System to be installed in your car or other motor vehicle.

A. FIRST OFFENSE (No Other DUI within the Past 10 Years).

BAC is .08% to .099%. This offense is deemed to be an ungraded misdemeanor (M) which results in a maximum term of probation of 6 months and a fine in the amount of $300.00. There also would be required CRN, AHSS and possible D&A. In this category, there would be no loss of license and no jail time.

BAC is .10% to .159%. This also is an ungraded misdemeanor (M); however, there is a mandatory period of imprisonment for a term not less than 48 hours and not more than 6 months, together with a fine of not less than $500.00 and not more than $5,000.00. Required CRN, AHSS and possible D&A. A driver's license suspension also would be imposed for a term of 12 months; however, there remains the possibility that a driver could apply for and receive an Occupational Limited License (OLL) after serving at least 2 months of the license suspension.

BAC is .16% or higher (or there was a refusal to give a blood or breath sample). This is also an ungraded misdemeanor (M); however, there would be a mandatory term of imprisonment of not less than 72 hours and not more than 6 months, together with a fine in the amount of not less than $1,000.00 and not more than $5,000.00. Required CRN, AHSS and a full D&A. A driver's license suspension would be for a term of 12 months; however, there is the possibility that the person could apply for and receive an Occupational Limited License (OLL) after serving 2 months of the license suspension.

B. SECOND OFFENSE

BAC is .08% to .099%. This is an ungraded misdemeanor (M) with a mandatory period of imprisonment of not less than 5 days and not more than 6 months, together with a fine in the amount of not less than $300.00 and not more than $2,500.00. A license suspension would be for a period of 12 months. Required CRN, AHSS, D&A and Ignition Interlock for a period of 12 months.

BAC is .10% to .159%. This is an ungraded misdemeanor (M) with a mandatory period of imprisonment of not less than 30 days and not more than 6 months, together with a fine in the amount of not less than $750.00 and not more than $5,000.00. A license suspension would be for a period of 12 months. Required CRN, AHSS, D&A and Ignition Interlock for a period of 12 months.

BAC is .16% or higher (or a refusal). This is graded as a misdemeanor of the first degree (M1) with a mandatory term of imprisonment of not less than 90 days and not more than 5 years, together with a fine in the amount of not less than $1,500.00 and not more than $10,000.00. A license suspension would be for a period of 12 months. Required CRN, AHSS, D&A and Ignition Interlock for a
period of 12 months.

C. THIRD OFFENSE.

BAC is .08% to .099%. This is graded as a misdemeanor of the second degree (M2) with a mandatory period of imprisonment of not less than 10 days and not more than 2 years, together with a fine in the amount of not less than $500.00 and not more than $5,000.00. A license suspension would be for a period of 12 months. Required CRN, D&A and Ignition Interlock for a period of 12 months.

BAC is .10% to .159%. This is graded as a misdemeanor of the first degree (M1) with a mandatory period of imprisonment of not less than 90 days and not more than 5 years, together with a fine in the amount of not less than $1,500.00 and not more than $10,000.00. A license suspension would be for a period of 18 months. Required CRN, D&A and Ignition Interlock for a period of 12 months.

BAC is .16% or higher (or a refusal). This is graded as a misdemeanor of the first degree (M1) with a mandatory term of imprisonment of not less than 1 year and not more than 5 years, together with a fine in the amount of not less than $2,500.00 and not more than $10,000.00. A license suspension would be for a period of 18 months. Required CRN, D&A and Ignition Interlock for a period of 12 months.

D. FOURTH OFFENSE.

BAC is .08% to .099%. This is graded as a misdemeanor of the second degree (M2) with a mandatory period of imprisonment of not less than 10 days and not more than 2 years, together with a fine in the amount of not less than $500.00 and not more than $5,000.00. A license suspension would be for a period of 12 months. Required CRN, D&A and Ignition Interlock for a period of 12 months.

BAC is .10% to .159%. This is graded as a misdemeanor of the first degree (M1) with a mandatory period of imprisonment of not less than 1 year and not more than 5 years, together with a fine in the amount of not less than $1,500.00 and not more than $10,000.00. A license suspension would be for a period of 18 months. Required CRN, D&A and Ignition Interlock for a period of 12 months.

BAC is .16% or higher (or a refusal). This is graded as a misdemeanor of the first degree (M1) with a mandatory term of imprisonment of not less than 1 year and not more than 5 years, together with a fine in the amount of not less than $2,500.00 and not more than $10,000.00. A license suspension would be for a period of 18 months. Required CRN, D&A and Ignition Interlock for a period of 12 months. In addition to all of the penalties described above, a conviction would appear on your record and the Court would impose various costs and assessments in addition to a fine. In some counties in Pennsylvania, persons who receive a term of probation following a period of incarceration must pay a monthly fee while they remain on probation.

E. REFUSAL OF BREATH TEST. If you refuse to take a breath, blood or urine test after being arrested for DUI in Pennsylvania, your driver's license will be suspended for a period of not less than 1 year and, upon conviction, you would receive a mandatory term of imprisonment of 3 days. The arresting officer must forward a Notice of Refusal (DL-26 Form) to inform the Pennsylvania Department of Transportation (PennDOT) of your refusal. Once received,
PennDOT must forward to you a notice that your license shall be suspended and your license must be tendered to PennDOT within 30 days of such notice. The driver has 30 days from the date he or she receives the letter from PennDOT to file an appeal in a civil proceeding and request a stay of any suspension until the matter was resolved in the Court of Common Pleas.

The bottom line.

You will see that a conviction for DUI impacts you freedom in many ways great and small. A conviction can result in prison, loss of your driver's license, mandatory counseling, driver training, an ignition interlock device and a host of other penalties. The more you know, then more likely you will be to avoid a DUI. Or if you face a DUI now, the better prepared you will be to deal with the consequences.

Tim George has been a lawyer since 1992. He defends the freedom of people accused of criminal offenses and DUI in Erie and through Northwestern Pennsylvania. For more information about him and a sampling of the cases he has handled, answers to frequently asked questions or directions to his office at 2525 West 26th Street, Suite 201, Erie, Pennsylvania, visit www.YourErieDUILawyer.com. You may schedule a free office consultation by calling toll free (866) 794-2525 .