THIRD OFFENSE DUI IN PENNSYLVANIA
THIRD OFFENSE DUI IN PENNSYLVANIA
Anyone who is convicted of a third offense DUI in Pennsylvania must serve time in jail or, if the court permits, on house arrest. Unless a third offense DUI is charged under 75 Pa.C.S. § 3802(a)(1) or § 3802(a)(2)—and does not involve a crash with injury or property damage, a commercial or school bus driver, a driver under 21, or a refusal—it will be graded as a misdemeanor of the first degree (M1), and have a maximum penalty of five (5) years imprisonment and a $10,000.00 fine. Not only are the criminal penalties increased for these DUIs, they typically include longer terms of probation, court costs often exceed $5,000.00. Further, any thirds offense DUI conviction will impact an offender’s firearm rights.
This article is a broad overview on third 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 third offense DUI 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:
Third Offense DUI Grading & Penalties in PA
Third Offense DUI, General Impairment: Sections 3802(a)(1) and 3802(a)(2)
This offense is a misdemeanor of the second degree. The maximum penalties are set at 2 years in jail of probation and a $2,500.00 fine. The mandatory minimum penalties are ten (10) days jail and a $500.00 fine. There is also a 12-month loss of license and a 12-month ignition interlock requirement.
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.
Third Offense DUI, High Rate: Sections 3802(b), (e), and (f)
A third offense DUI at the high rate is a misdemeanor of the first degree. Here, the penalties are a minimum of 90-days imprisonment and up to 5 years, a fine of at least $1,500.00 and up to $10,000.00, 18-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.
Third Offense DUI, Incapacity: Sections 3802(c) and (d)
A third offense DUI at the highest rate is a misdemeanor of the first degree. Here, the mandatory minimums are one (1) year imprisonment and up to 5 years jail, a fine of at least $2,500.00 and up to $10,000.00, 18-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.
3rd Offense DUI Options
In Pennsylvania, the options for third offense DUIs are generally limited to fighting the case or resolving it with a negotiated guilty plea. In some counties, a third offense DUI can be resolved by participating in a specialty treatment court program (e.g., DUI Court, Drug Court, Treatment Court, or Veterans Court).
Determining which path offers the appropriate resolution cannot be done without first understanding what options may be available. The options available to a third 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.
In some counties, at sentencing for a third offense DUI, the court will grant credit for time served in an inpatient treatment facility, house arrest, immediate work release, and/or allow offenders to serve the jail sentence on weekends. As noted, some counties also have specialty courts that are open to third offense DUI offenders.
The availability of these sentencing alternatives varies by county and sometimes by judges within a county.
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 person’s driving history is especially important in third offense DUI cases because it will typically show a DUI that were resolved with ARD and expunged from a person’s criminal record.
A prior criminal record that is unrelated to driving may also increase the penalty for a DUI if the offender’s standard range sentence exceeds the mandatory minimum sentence.
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 3rd Offense DUI
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.
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 3rd 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 third 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. All defendants facing a third offense DUI are entitled to a jury trial.
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.
A guilty plea is often a pragmatic resolution to a third offense DUI case where trial is not a viable option. A guilty plea may include an agreement where the district attorney will not object to a request for: house arrest; credit for time served in a rehabilitation facility; work release; weekend jail; treatment court; 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.
3rd Offense DUI Sentencing Options
Pursuant to Pennsylvania law, a court may sentence a third offense DUI defendant to a County Intermediate Punishment Program Sentence (CIP or IPP). CIP provides courts with sentencing alternatives for defendants that are in need of treatment. Therefore, to be sentenced to CIP, an offender must first submit to a comprehensive drug and alcohol assessment and be recommended for further treatment. Without that recommendation, a court cannot issue a CIP sentence. Courts may require additional terms prior to issuing a CIP sentence. For example, a county may require an offender to apply for treatment court before granting a CIP sentence.
CIP sentences can include house arrest, credit for time served in a rehabilitation facility, work release, weekend jail, and/or treatment court. Nevertheless, DUI offenders must generally be confined in a jail, residential rehabilitation facility, or via house arrest to serve any mandatory minimum sentence. Some treatment courts provide an exception to this general rule.
House arrest permits an offender to serve some or all the jail sentence at home while wearing an electronic monitor. The electronic monitor verifies the offender’s location. Some monitoring devices (e.g., SCRAM) also report if the offender consumed any drugs or alcohol.
The purpose of house arrest is to allow offenders to work, meet family obligations, and participating in outpatient treatment while serving their sentence. Some courts grant full house arrest, while others issue a split sentence requiring some (often half) of the mandatory minimum sentence to be served in jail.
Some counties will transfer a house arrest sentence out of their county, provided that he offender’s home county accept the transfer of the supervision. Others will not, meaning that offenders that reside out of county are not eligible for house arrest unless they establish an approved residence within the county. Further, some counties, like Philadelphia County, will not accept house arrest transfers.
The parameters of house arrest are determined by probation. Therefore, probation, not the court, decides if the offender can mow their lawn, sit on their porch, grocery shop, etc.
Finally, house arrest is expensive. In general, it costs about $10-$15 per day. When accepting a house arrest transfer, certain counties will also require that total cost for the term of house arrest is paid upfront.
Credit for Time Served in Rehab
It is within a court’s discretion to credit an offender with time served in a residential rehabilitation facility. Most judges consistently apply that credit. Some will not.
For a court to apply the credit time, the offender must successfully complete the term of inpatient treatment, comply with all after care recommendations, and remain sober.
Work release permits an offender to attend work while serving a county jail sentence. Courts make offenders eligible for work release. Prison wardens decide if and when work release is granted.
Some courts make DUI offenders eligible for immediate work release and some wardens implement it. In some counties, offenders are not made eligible for work release for at least thirty (30) days. Such a policy begs the question: How many employers are willing to hold a job for 30 days?
As a practical matter, to be eligible for work release an offender needs a job that is relatively close to the jail. They also need approved transportation to get to work and back to the jail.
Some courts will permit a DUI offender to serve their sentence on weekends. Third offense DUI offenders at the high rate would have to serve 45 weekends to fulfill the mandatory minimum sentence. Weekend jail is not really a viable option for third offenses at the highest rate.
Treatment court programs are typically twenty-four (24) month plans that require and offender to complete multiple components and tiers. Treatment courts vary widely in terms of their requirements (some require a period of incarceration) and benefits (some result in the case being dismissed).
However, all treatment courts demand frequent (weekly) court appearances and a commitment to individual and group therapy. Treatment court programs involve a significant time commitment and are hard work.
Third Offense DUI to Do List
Evaluate Yourself. Consider what led you to being charged with a third DUI. This will help you regardless of how your case is resolved. AA is free and has helped many people. If that doesn’t work for you then try something else.
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.
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.
Be prepared to Post Bail. Some district courts require a secured bail for third offense DUIs. In advance to the preliminary hearing discuss bail with your lawyer and have a bail funds and/or a bail bondsman available.
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.
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.