FIRST OFFENSE DUI IN PENNSYLVANIA
FIRST OFFENSE DUI IN PENNSYLVANIA
When a person is charged with a first offense DUI, it is frequently their initial contact with the criminal justice system. Although there are certalily advantages to having no prior involvement with the system, that lack of experience, and particularly the fear of the unknown, often cause severe anxiety. At Lampman Law, we believe that it is important to appreciate the seriousness of a criminal prosecution and that it is reasonable to have unease with being the focus of any criminal charge. Nevertheless, also we know that worry alone will not cause a case to dissolve. Therefore, we encourage the accused to channel any nervousness they have into developing a plan to move forward. To that end, we provide this article, and we hope you find it helpful.
This article is a broad overview on fist offense DUI cases in Pennsylvania. It provides basic information. It should not be used as a substitute for legal advice. If you have been charged or expect to be charged, you should immediately discuss your situation with a criminal defense lawyer that has experience defending cases in the applicable jurisdiction. Anyone that cannot afford to hire a private defense attorney should apply for the public defender. This article is navigable via the links below:
First Things First: The Definition of First Offense DUI in Pennsylvania
In Pennsylvania, a DUI is considered a first offense so long as the accused has no prior DUIs within ten (10) years of the current DUI prosecution.
For example, Mr. Z was convicted of a DUI in California in 1980. Mr. Z is presently charged with a DUI offense in Pennsylvania. If Pennsylvania convicts Mr. Z of the present DUI, he will be sentenced as a first time DUI offender. Here, it does not matter where the prior DUI conviction occurred provided it was outside of the 10-year look back period.
However, if Mr. Z was convicted of a DUI in California in 2017 and is presently charged with a DUI offense in Pennsylvania, Mr. Z will be sentenced as a second offense DUI if he is convicted. Here again, it rarely matters where a prior DUI conviction occurred when calculating prior offenses. If it is within the 10-year look back period, it will be treated as a prior offense for sentencing purposes in PA.
1st Offense DUI Charges in PA – Summary of Pre-Trial Criminal Procedure & the Court Process
Suspicion of DUI Arrests
Pennsylvania requires that police release DUI suspects once the investigation (SFST and BAC testing) is completed and as soon as the suspect is sober or can be released to a sober adult. The police may process (fingerprint and photograph) the accused while they are in custody for suspicion of DUI; however, processing is often done at a later date. Here, it is important to understand, that a DUI suspect is typically not formally charged on the date of the alleged incident. Often, charges will not be filed, and the first court appearance will not occur, for weeks or even several months, after the offense date. The police have two (2) years to file DUI charges.
Charges Filed by Criminal Complaint
DUI charges are initiated in Pennsylvania when the police file a criminal complaint with a magistrate or municipal court. The criminal complaint typically identifies the accused, the arresting officer, the time, date, and location of the incident, and the specific criminal offenses charged. The document is supported with an affidavit of probable cause, which is a narrative provided by the arresting officers that describes why the officer charged the accused.
Notice of Charges via Summons
After the complaint is filed, the court then notifies the accused of the charges by mailing a summons and a copy of the criminal complaint to their residence via first class and by certified mail, return receipt requested. The mailing address the court uses is the address listed on the accused driver’s license. The summons commands the accused to appear in court for a preliminary hearing. It also provides the accused with some information concerning the process and their legal rights, including the right to counsel. Failure to appear at the preliminary hearing can result in the case being forwarded to the Court of Common Pleas (CCP), the trial court, and a bench warrant will likely be issued.
At the preliminary hearing the prosecution must establish a prima facie case for the case to be forwarded to the CCP for trial. That means they must show it is more likely than not that a crime was committed and that the accused committed the crime. This is an especially low burden of proof. In DUI cases, the prosecutor must have evidence that the accused drove (or was in actual physical control over the movement of a vehicle) and that the accused was impaired to the degree that they could not drive safely or that their BAC was above the legal limit (.02% for drivers under 21 and commercial drivers or .08% for all other drivers). In many DUI cases, the prosecution can establish those elements with the arresting officer’s testimony so preliminary hearings are frequently waived. Regardless, waiving a preliminary hearing is not an admission of guilt, it simply moves the case for disposition in the CCP.
In DUI cases, bail is set at the preliminary hearing. The court usually sets a ROR or unsecured bail for first offense DUI cases.
The standard bail conditions are: (1) appear at all court hearings; (2) update any change of address with the court and the prosecutor; (3) refrain from criminal activity; (4) have no contact with the arresting officer/victim/witnesses, to not harass or intimidate them, or seek a third party to harass or intimidate them; (5) get fingerprinted.
First Offense DUI Grading & Penalties in PA
First offense DUI cases are ungraded misdemeanors in Pennsylvania. The maximum “criminal” penalty is 6 months and the maximum fine is $5,000.00.
Pennsylvania uses a three (3) tier system to determine the penalty range for a first offense DUI offender. The tier system is driven by the accused’s level of impairment. However, certain offenses increase the penalty level regardless of the level of impairment. DUI cases involving crashes with injury or property damage, chemical test refusals, drivers under age 21, school bus drivers, and commercial drivers, are subject to enhanced penalties. Of course, the penalty for a DUI in PA is also dependent on the number of prior DUI convictions the accused has within the applicable 10-year period.
First Offense DUI, General Impairment: Sections 3802(a)(1) and 3802(a)(2)
Here the penalties are set at 6-months of probation and a $300.00 fine. There is no loss of driver’s license.
To be penalized at this lowest level of DUI, the offender must:
Not refuse a chemical test of breath via a calibrated breathalyzer or legal blood draw;
Be convicted of driving while impaired by alcohol to the degree that they are rendered incapable of safe driving; or
Be convicted of driving while impaired by alcohol having a BAC above .08% but below .10%.
Not be involved in a crash with any injury or property damage.
Be over 21 years old and not be driving a school bus or commercial vehicle.
First Offense DUI, High Rate: Sections 3802(b), (e), and (f)
The penalties for first offense DUI conviction at the high rate of alcohol are 48 consecutive hours of imprisonment and up to 6 months, a fine of at least $500.00 and up to $5,000.00, a 12-month license suspension and 12 months ignition interlock.
The High Rate of DUI applies to:
Drivers with a BAC between .10% and .159%.
Any DUI crash with injury or any property damage.
Drivers under age 21 with a BAC of at least .02%.
School Bus Drivers (.02%), Commercial Drivers (.04%).
School or Commercial Driver incapable of safe driving.
First Offense DUI, Incapacity: Sections 3802(c) and (d)
The penalties for the highest rate of DUI, the incapacity level are 72 consecutive hours of imprisonment and up to 6 months, a fine of at least $1,000.00 and up to $5,000.00, a 12-month license suspension and 12 months ignition interlock.
The incapacity level of DUI applies to:
Drivers with a BAC between .16% and above.
Blood and/or Breath Test Refusals.
All DUI Drug Cases.
Mandatory DUI Programs & Requirements
Regardless of whether a DUI results in a conviction following trial or a guilty plea, and even if it is resolved with ARD, there are statutorily programs and requirements that must be paid for and completed.
Pennsylvania law requires an accused to be fingerprinted anytime they are charged with a misdemeanor or felony offense. This rule applies even if your prints are on file for another purpose.
CRN Evaluation, Full Drug and Alcohol Assessment, & Treatment
For a court to sentence a DUI offender or to admit them into the ARD program, the court must refer to the recommendations made in the Court Reporting Network (CRN) report. A CRN is a uniform prescreening evaluation to determine if an offender is in need to substance abuse treatment. It classifies offenders as non-problem social drinkers and problem-drinkers/substance abusers. Non-problem drinkers require no further evaluation or treatment. Problem-drinkers/substance abusers are required to complete a Full Drug and Alcohol Assessment and any recommended treatment. The offender must attend and pay for the evaluation. The cost varies depending on the jurisdiction but is generally $50-$100.
The purpose of a Full Drug and Alcohol Assessment is to identify the level of outpatient treatment the offender requires. The costs vary by county but is usually about $120 and is required for all DUIs subject to the penalties at the highest rate (refusals, .16% or above, DUI drug). It is also required if the CRN report suggests the offender is a “problem drinker” and in need of treatment.
Here it is important to stress that the court will adopt the recommendations made in the Full Drug and Alcohol Assessment and make them a condition of probation. Therefore, if treatment is recommended, the offender must pay for and successfully complete it to satisfy the probation requirement.
Alcohol Highway Safety School (AHSS) is 12.5 hours of classroom education focusing on the problems associated with the use of alcohol and controlled substances and driving. The cost varies by county but is typically about $350-$450. Some jurisdictions permit offenders to complete the class on the internet.
The maximum term of probation is 6 months for a first offense DUI conviction. However, ARD probation for a DUI is often set at 6 months or 12 months. Technically, ARD probation can be a maximum of 24 months.
General terms of probation for DUI cases are: obey all laws and commit no new crimes; pay all fines and court costs; complete all required treatment, AHSS, and Community Service; no use of illegal or non-prescribed drug; no alcohol consumption (including beer); do not enter places that sell of serve alcohol (courts will often make exceptions for employment at bars and restaurants); no gathering with people who use alcohol to excess; random drug and alcohol screening. Some counties will require offenders to seek permission to leave the county or Pennsylvania.
Probation for first offense DUI offenders is typically low contact and intensity. The level of contact/supervision varies by county and probation officer. Many counties now monitor DUI offenders via mail or automated telephone.
Here, it is also important to distinguish between probation violations and ARD revocations. A probation violation can result in incarceration and/or re-sentencing. Violating ARD probation has less severe consequences. While a court can revoke bail for an ARD violation, it is more likely the offender will simply be revoked or removed from the program and will face prosecution on the DUI case. The revoked offender will have to resolve their case via trial or a guilty plea.
Courts often sentence DUI offenders to a minimum of 15 hours of community service. Certain counties require substantially more time. Community service is usually required to be competed in the county where the DUI occurred. Community service can be performed at any non-profit/charity organization.
Payment of Court Costs & Restitution
DUI offenders must pay all court costs that are separate and in addition to any fines and restitution. Restitution is a court ordered payment to cover expenses (e.g., the cost of blood draw/testing) and/or to make a victim whole for any medical bills or property damage. Court costs include the cost to prosecute and supervise (monthly probation fees) the offender.
Court costs for first offense DUI cases in PA range for $1,200-$1,800.
All monetary obligations are usually payable in monthly instalments to the probation/collection office.
First Offense DUI Options
Determining which path offers the appropriate resolution cannot be done without first understanding what options may be available. The options available to a first offense DUI offender are dependent on where the crime is charged (jurisdiction), the accused’s criminal and driving record, and the facts of the alleged offense.
Like real estate value, the outcome of any criminal prosecution, is tied to location. Pennsylvania has one DUI law that applies to all the counties within the Commonwealth; however, the law is not applied evenly. Even with courts being bound to apply specific statutory mandatory minimum sentences and to follow the guidelines in the sentencing code, prosecutors and courts have wide discretion in how the law is applied. The legal system is shaped by politics. Judges and district attorneys are elected officials. In general, they hope to be reelected and to reflect the will of their constituents. In sum, some counties are simply more or less punitive than others. Therefore, where a crime allegedly occurred is often more important than what and who is charged.
Criminal & Driving History
An accused’s criminal record is always a relevant factor that will weight heavily on the available options and in the case’s ultimate outcome. A prior criminal record that is unrelated to driving may exclude an individual from ARD consideration. A history of traffic violations, suspensions, or a suspended license at the time of the alleged DUI may also cause a prosecutor not to offer ARD.
Facts of the Case
Facts can always be argued, but events can never be undone. If all other things are equal, the facts of a case are the most important factor to determine a case’s outcome. As explained below, the existence of certain facts can limit the options available and preclude a desired result.
Identifying the Best Path to Resolve a First Offense DUI
There are three general ways to resolve a first offense DUI case; fight, plea, or ARD. It is essential for anyone accused to understand that they have a constitutional right to challenge the charges pre-trial and then, if necessary, to demand a trial to decide the case. In some cases, depending on the facts and circumstances, a negotiated guilty plea may be a practical or even a beneficial resolution. As explained below, ARD is a diversionary program that eliminates the risk of losing at trial and offers a variety of penalty reductions.
One should not form a fixed opinion on how they want to resolve any criminal case until they fully understand all their available options, the consequences of each, and why they wish to pursue a given path. Therefore, an accused must speak with an experienced DUI lawyer prior to pursuing a resolution. Indeed, counseling a client on how (and explaining why) they should proceed in a case is one of the most important duties a lawyer must perform. Offering this advice with certainty can only happen after a lawyer fully investigates and analyzes the case.
Fighting a First Offense DUI Case: Pre-trial Challenges & Trial
Obviously, beating DUI charges will always yield the best result. It is the only way to avoid participating in and paying for the mandatory DUI penalties, programming, and supervision discussed above. Fighting a DUI case demands that the accused is persistent and willing to accept the risk and uncertainty of fighting. The problem however, is that DUI cases are just not that easy to beat outright. While the law is not a mathematic formula, evidence of driving + BAC .08 or above (or evidence of impairment) = DUI conviction.
At Lampman Law we scrutinize DUI charges to find factual and technical defenses to challenge DUI cases. In general, we seek to challenge DUIs where the Commonwealth may have difficulty establishing an element or where the police failed to follow a procedure (e.g., illegal stop, unfair SFSTs, implied consent warnings, inaccurate BAC results, chain of custody, etc.) that may result in prejudice to the accused. Understanding which DUI cases to challenge, along with experience, sharp courtroom skills, and relentless trial preparations have produced our superb record of defending DUI charges at trial.
Full Preliminary Hearings
In some DUI cases, it is desirable to challenge the government’s evidence at the preliminary hearing. Even if the case is not dismissed, there is the benefit of hearing the witness testimony and having a record of it for drafting and arguing pre-trial motions and for cross-examining the witness at trial.
Lampman Law has had DUI cases dismissed at the preliminary hearing. However, it is important to stress that to win at this level is uncommon; the Commonwealth’s case must be fundamentally flawed, be centered on biased police testimony, or the case must completely fall apart.
Moreover, even if a case is dismissed after a preliminary hearing, the Commonwealth can re-file the charges. Therefore, if the arresting officer or a lay witness fails to appear, or if the case is dismissed for a technical defect, the Commonwealth can, and likely will, re-file the charges.
Pre-trial Motions & Hearings
Pre-trail motions are filed to challenge the Commonwealth’s ability to prove the essential elements of a case, or to seek the suppression of evidence based on a statutory or constitutional violation. Successful pre-trial motions can result in a DUI being dismissed (the Commonwealth can appeal) and/or limit the evidence the government can use at trial. In some cases, pre-trial motions help the defense in plea negotiations by showing the Commonwealth their weaknesses and why they should not go to trial.
Anyone charged with a first offense DUI in Pennsylvania is entitled to all the guarantees and protections provided by the United States and Pennsylvania’s constitutions. This includes the presumption of innocence and the right to due process. It is important to highlight these basis protections because the police, prosecutors, and even some defendants seem to overlook these important principles in DUI cases.
However, relying on United States Supreme Court precedent, Pennsylvania courts have held that because the maximum penalty for a first offense DUI is set at 6 months, the accused is not entitled to a jury trial. Therefore, unless a more serious crime is charged, first office DUI defendants are only entitled to a bench (judge only) trial. This is an extremely important factor in evaluating whether a case should be tested at trial—in general, it is a significant disadvantage for the defense. Therefore, a lawyer must be aware of the judge(s) that may be assigned to the case and should also be very familiar with how they have decided DUI bench trials.
As noted above, everyone accused of DUI has the right to trial. However, trial may not be the right option to pursue, depending on the facts of the case and the surrounding circumstances. Making the decision on whether to pursue trial or to resolve the case otherwise, is an extremely important decision that should be made with an experienced lawyer. In most cases, the trial decision must be made as the case develops and as litigation unfolds.
ARD is often the desired result because: (1) it circumvents the mandatory periods of incarceration; (2) it drastically reduces the driver’s license suspension (30 days for high rate/60 days for highest rate/90 days for drivers under 21); (3) it eliminates the ignition interlock requirement (unless the offender wants to drive during the period of ARD suspension); (4) it eliminates the mandatory minimum fines; (5) Successful completion results in the case being dismissed (so it is not a criminal conviction) and then eligible for an expungement; (6) it removes the risk/uncertainty of trial; (7) it provides the offender the opportunity to take control of the case (i.e., complete the requirements and the case gets dismissed).
ARD is not without consequences, an unflawed solution, or “a one size fits all program.” First, participating in ARD requires an accused to waive (forfeit) their trial rights and rights concerning any statutory or constitutional challenges (speedy trial rights, statute of limitations, legality of the stop). Second, it requires an off the record admission to the DUI charge (or that the Commonwealth would prove DUI at trial). Third, the 6-month maximum penalty for DUI convictions does not apply to ARD because it’s a diversion program and not a conviction. Thus, ARD offenders often serve double the probation that offenders face after being convicted of a first offense DUI. Forth, ARD reduces the penalties and fines but it is still expensive and requires the mandatory programing/treatment. While all participants will have to complete evaluations, AHSS, and community service; the amount of treatment, restitution, and costs are set on a case-by-case basis. Fifth, in many counties, even though the case is dismissed upon successful completion of ARD, the accused must then initiate the expungement process to remove the arrest record from their criminal history. Sixth, many ARD participants do not complete the program. Those revoked from ARD are returned to the trial list and must dispose of the case via guilty plea or trial. Seventh, if a defendant is terminated from ARD, and is later acquitted at trial, their placement into ARD will count as a prior DUI offense. This is a counterintuitive result, but that is what our court’s have held. Eight, ARD does not offer relief for suspensions based on chemical test refusals or for the mandatory loss of a commercial license for CDL holders.
Jurisdiction is particularly relevant with first offense DUI cases since ARD is often the accused’s desired resolution. Section 3807 of the Vehicle Code defines the minimum ARD requirements by outlining the factors that preclude ARD. If any of the following apply the case is not eligible for ARD: (i) A prior DUI with 10 years of the current offense (unless the prior was a first offense under Section 3802(a)(2)); (ii) The DUI involves death or serious bodily injury to someone other than the defendant; (iii) The DUI involves a passenger under 14 years old.
However, in each county, the elected district attorney is permitted to set additional criteria for ARD eligibility. Accordingly, in some counties, a DUI defendant may be denied ARD for reasons that would not cause them to be denied ARD in another county (e.g., prior DUI conviction outside 10 years, any prior criminal conviction, poor driving history, any injury, BAC level, certain offenses charged in addition to the DUI, a suspended license, etc.).
A guilty plea may be a pragmatic resolution to a first offense DUI case where neither trial nor ARD are viable options. A guilty plea may include an agreement where the district attorney will not object to a request for house arrest or to just the mandatory minimum sentence, instead of seeking harsher penalties.
Here it is important to note that a guilty plea results in a criminal conviction. It is a conviction equivalent to losing at trial. Unlike a conviction following trial, guilty pleas have very limited rights to appeal. These convictions are not eligible for limited access (record sealing) for 10 years after the release from supervision and the offender must remain crime free during that 10-year period.
First Offense DUI To Do List
Find Calm & Focus. Facing a DUI charge is certainly consequential and will require you to make important decisions. You must try to find calm, so you can listen, learn, and determine how you want to proceed with your case. Without focus, you will not understand your options or be able to make intelligent decisions.
Take Notes & Preserve Evidence. The police must make reports concerning your case. They will use those reports to refresh their recollection when testifying and prosecuting your case. It is important that you make notes of what happened and of any details that may support your case. Likewise, it is important that you preserve your recollection of any evidence that may substantiate your defense. For example, if you swerved to avoid multiple pot holes, and the police stopped your vehicle for that swerving, it may be helpful to photograph the road to show the pot holes you swerved to avoid. If surveillance video might help your case, you must promptly seek to preserve it. The point is that evidence often dematerializes or spoils. You must preserve it at your earliest opportunity because it may not exist when you are charged or when you have counsel.
Evaluate Yourself. Consider what led you to being charged with a DUI. If you don’t think you are being wrongfully accused, think about what caused you to accept the risky behavior or drinking while driving. This will help you regardless of how your case is resolved. If alcohol is playing too big a role in your life, or occasionally leading you to engage in risky behavior, seek professional help. AA is free and has helped many people. If that doesn’t work for you then try something else. Whatever stress you had prior to being charged with DUI is likely increased by the DUI charges. If you need help, please seek it now so that your problems don’t compound.
Read the Criminal Complaint. Once you are charged, you will receive copies of the criminal complaint via first class and certified mail. Read the entire document as soon as you receive it. Then, read it again and make notes of any information or statements that you believe are wrong. Doing this will help you understand the basis for the charges and will help you discuss the case with a lawyer.
Secure Counsel. If you can afford to retain private defense counsel, find a lawyer that you feel confident can and will help you and hire them. The only way you can make this decision is by speaking with the lawyer. Hire someone that listens to you, explains your options to you, and that is interested in helping you. Avoid promises of sunshine and rainbows just as much as you should avoid scare tactics. Trust your gut. If you cannot afford to hire a lawyer, you should promptly apply for the public defender.
Ask Questions. Once you have counsel, you should direct any questions about your case to your lawyer. It is the lawyer’s duty to communicate with you and to answer questions related to your case.
Establish Goals. Identify how you want to resolve your case and what penalties you hope to avoid. Discuss your goals and if/how they can be achieved with your lawyer.
Follow the Rules. Despite the presumption of innocence, anyone charged with DUI in Pennsylvania must comply with certain rules or court orders. Failure to do so will make matters worse. Thus, appear for court, secure counsel, and comply with bail conditions.
Follow Through. No matter how your case is ultimately resolved, follow through with it to the furthest legal conclusion. If the case is dismissed or resolved with ARD, make sure the record is expunged. If the case results in a probationary sentence, comply will all the conditions of probation so that you are released from supervision. Seek limited access if and when eligible.
Thank you for taking your time to visit our website. Please call Lampman Law today at 570-371-3737 to discuss the specifics about your case.