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UNDERAGE DUI IN PENNSYLVANIA: 75 Pa.C.S. § 3802(e)
PA DUI Minor Laws
Pennsylvania has specific DUI rules that apply to minor drivers. First, under PA’s DUI law, minor drivers are defined as “[a]n individual who is under 21 years of age.” 75 Pa.C.S. § 3801. Second, the blood alcohol level for a per se DUI (where the Commonwealth does not need to prove actual impairment but can rely on just the BAC level to prove their case) is lowered from the general .08% rule to .02% for anyone under the age of 21. 75 Pa.C.S. § 3802(e). Third, any minor that is convicted of DUI is ineligible for a sentence at Pennsylvania’s lowest level of DUI penalties; instead, minors must be sentenced to at least the high level (middle tier) of punishment. 75 Pa.C.S. § 3804(b). Fourth, minor drivers convicted of a DUI that is based on a Chemical Test Refusal (via DataMaster DMT Breathalyzer or Blood Test), Controlled Substances (Drugs), or a BAC. 16% or higher, must be sentenced at the highest level of DUI punishment. 75 Pa.C.S. § 3804(c).
Further, a distinction must be made between a minor charged DUI pursuant to 75 Pa.C.S. § 3802 and 75 Pa.C.S. § 3718. Section 3718 prohibits a minor from operating a vehicle with any amount of alcohol in their system, regardless of impairment. While DUI is a misdemeanor criminal offense, section 3718 is summary offense punishable by a maximum fine of $100. Magistrate courts have jurisdiction over all section 3718 citations, because it is a summary traffic offense the Juvenile Act does not apply to differentiate between minor divers younger than age 18.
DUI Minor Penalties
DUI Programs & Requirements
Overview of PA DUI Minor Procedure
The rules explained above provide only half the equation of how a minor’s DUI case will be treated in Pennsylvania. Of course, how the case is prosecuted and what procedural rules and safeguards apply are dependent on if the “minor” is 18 years of age or younger at the time of the alleged DUI violation.
Pennsylvania’s Juvenile Act and (adult) criminal court are governed by different procedures and rules and have dissimilar options and consequences. In sum, juveniles charged with DUI have more options to resolve a DUI case and more opportunities to avoid the mandatory minimum (or more severe) penalties associated with DUIs than a person charged in criminal court.
Drivers accused of violating Sections 3802(e), 3802(c), and/or 3802(d) of Pennsylvania’s Vehicle Code, while being under the age of 18 years of age, must be accused in juvenile court, while all DUI drivers between the ages of 18 and 21 years of age will be charged in criminal court.
Suspicion of DUI Minor in Pennsylvania
Regardless of a person’s age, the procedure that police must follow at the time of an “arrest” for suspicion of DUI in Pennsylvania is relatively constant.
Pennsylvania Rule of Criminal Procedure 519(B)(1)(a) 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 safely released to a sober adult.
When the police have a juvenile in custody for suspicion of DUI, they must promptly notify the juvenile’s parents or guardian of the “arrest” and the reasoning for it, where the juvenile is being held, and release the juvenile to the parents or guardian unless detention is otherwise warranted. Pa.R.J.C.P. 220(A).
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.
Allegations of DUI Minor in Juvenile Court: DUI Suspects Under Age 18 on Offense Date
As noted above, anyone accused of violating PA’s DUI law while being under 18 years of age must be treated as a juvenile. There are numerous safeguards, options, and advantages available to juveniles that are not accessible to people over 18 years of age at the time when a DUI is committed. The information below is a brief overview of the rules of juvenile procedure that typically apply to juvenile DUI cases.
Written Allegation: Commencement of a Juvenile Action
Juvenile delinquency cases start with a law enforcement officer submitting a Written Allegation to the juvenile probation office. This document contains the following details: the name and a signed sworn verification of the officer making the accusation; the name, birthdate, and address of the juvenile and their legal guardian (or nearest adult relative); the offense date and location; citation to the laws allegedly violated; and, a summary of the facts advising the juvenile of the nature of the alleged offense. It must also include a statement that it is in the best interest of the juvenile and the public that the proceedings be brought; and that the juvenile is in need of treatment, supervision, or rehabilitation.
Once the written allegation is submitted, a preliminary determination is made concerning the juvenile court’s jurisdiction. At this point, informal adjustments and other diversionary programs, including consent decrees, may be pursued. However, if the district attorney or juvenile probation decides that formal juvenile court action is needed, a petition will then be filed.
In cases where a juvenile petition has yet to be filed, juvenile probation must schedule an intake conference within a reasonable time after the written allegation has been submitted. Notice of the conference date, time, and location must be given to the juvenile and their guardian.
At the intake conference, juvenile probation must advise the juvenile of their rights, and provide a copy of the written allegation to the juvenile, their guardian, and their attorney. The juvenile is then given the option of discussing the allegation or to proceed with intake without addressing it.
The purpose of intake is to help the juvenile probation officer decide how the case might be resolved. It is typically a meeting where the probation officer meets with the juvenile, his/her guardian, and attorney. The probation officer “interviews” the juvenile and guardian to learn about them, their home life, schooling, social life, and prior contacts with law enforcement. The probation officer will also evaluate if the juvenile needs any services including therapy and/or treatment.
Failure to appear at the intake conference may result in a bench warrant being filed if the Commonwealth can show that enough notice (notice beyond first-class mail) was provided.
The Filing of a Juvenile Petition
A petition for delinquency must be filed with the clerk of courts if the Commonwealth determines that informal adjustment or another diversionary program is inappropriate. The required contents of the petition are substantially the same as what is required in the written allegation. Petitions are to be served via first-class mail or can ne delivered in person.
Once a petition is filed, the juvenile has rights akin to a criminal defendant’s pre-trial rights but with extremely relaxed deadlines to make requests, preserve defenses, and file challenges to the evidence. For example, the juvenile may request discovery materials, file notice of an alibi defense, and file an omnibus pre-trial motion.
Summons & Notice of the Adjudicatory Hearing
The Notice of the adjudicatory hearing must be served via first-class mail or by in-person delivery no later than 14 days prior to the hearing when the juvenile is not detained. The Summons must provide notice of the date, time, and location of the hearing and that the court is compelling the appearance of the juvenile and their guardian. Additionally, it must give notice of the juvenile’s right to counsel, include a copy of the petition, warn that a bench warrant may be issued for a failure to appear, and include an order for the juvenile to be processed (fingerprinted and photographed) if it has yet to be completed.
A Consent Decree is a diversionary program that suspends the proceedings and places the juvenile under a period of supervision in the juvenile’s home. It cannot be entered into for more than six (6) months; however, the court can extend the consent decree by a maximum of six (6) months. The terms of the consent decree are negotiated by and must be agreed upon by the district attorney and the juvenile.
After a petition is filed, but before the court enters an adjudication order, the court may place a juvenile on a consent decree. To order a consent decree, however, the district attorney and the juvenile must both agree with the resolution.
All terms and conditions of a content decree, including the duration of supervision, must be in writing.
A juvenile can violate a consent decree if there a new petition is filed (new charges) or if he/she fails to comply with and fulfill all its terms and conditions. The consequence of violating a consent decree is reinstatement of the petition where the juvenile will have to face the allegation at an adjudication hearing.
Adjudication Hearing: findings, adjudication, and disposition
At an adjudication hearing, the court may accept an admission from a juvenile. If an admission is not entered, the court must conduct an adjudicatory hearing. After the court accepts the admission or hears the evidence, it must rule on whether the admission/evidence suggest that the juvenile committed a criminal offense, and if so, specify the grading and counts of the violations.
Findings. If the court concludes that the juvenile did not commit a delinquent act alleged, the petition must be dismissed, the juvenile is released from the proceeding, and the record of the matter is ordered expunged. When the court finds that a delinquent act was committed, it must proceed to an adjudication of delinquency or enter the juvenile into the agreed upon consent decree.
Adjudication. The adjudication of delinquency is a separate hearing to determine if the juvenile is in need of treatment, supervision, or rehabilitation. If the juvenile is found not to be in need, he/she must be discharged. If, however, the juvenile is in need, the court will enter an order adjudicating the juvenile delinquent.
Disposition. Finally, the court must order how the delinquent juvenile must be treated, supervised, or rehabilitated.
Therefore, it should be obvious that the preferred resolution for a juvenile DUI case is an informal adjudication. If that is not an option, the case can be challenged at a hearing or disposed of with a consent decree.
DUI Minor Charges in Criminal Court: DUI Suspects Ages 18 but Under 21 on Offense Date
Minor drivers ages 18 and up to 21 years of age at the time of the alleged DUI are charged in criminal court like any other DUI driver; however, since they are below the legal drinking age, they are treated with stricter standards (.02% BAC) and with penalties that start at the high level of impartment. See 75 Pa.C.S. § 3804(b).
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 will use 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). 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 some 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.
In DUI cases, bail is set at the preliminary hearing. The court usually sets a ROR or unsecured bail for first offense DUI Minor 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.
Discovery Requests & Inspection
Discovery refers to the evidentiary materials (physical evidence/recordings), documents, and reports the police and district attorney compile to prosecute a criminal case. In general, discovery must be requested by the defense before the Commonwealth will turn it over. The discovery process is vital part of defending any criminal case.
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.
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 Minor cases are just not that easy to beat outright. While the law is not a mathematic formula, evidence of driving + BAC .02 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.
Anyone charged with 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 DUIs that are ungraded misdemeanors is set at 6 months, the accused is not entitled to a jury trial. Therefore, unless a more serious crime is charged, first offense 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 (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 courts 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 DUI minor 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.
PA DUI Minors Penalties
First offense DUI minor cases are ungraded misdemeanors in Pennsylvania. The maximum “criminal” penalty is 6 months and the maximum fine is $5,000.00.
First Offense DUI Minor, High Rate: Sections 3802(b), (e)
The High Rate of DUI applies to any minor driver with a BAC of at least .02%. 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.
First Offense DUI Minor, 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 any minor driver:
BAC between .16% and above.
DUI Controlled Substance.
Blood and/or Breath Test Refusals.
DUI Programs & Requirements
Regardless of whether a DUI minor charge 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.
As explained above, juvenile DUI cases can be resolved without completing some or all these programs that are required for (adult) criminal DUI cases.
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 minor 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 installments to the probation/collection office.
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