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Driving Under The Influence
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When you are charged with a DUI offense, there are a few ways that your case can proceed. If you were given a breath test at the scene, you will likely receive your paperwork within a few weeks, whereas if you were given a blood test, you may not receive your charges in the mail until the blood results are returned to the officer who arrested you. In a case where you have refused chemical testing, the charges will likely be filed shortly after the incident. Either way, you should begin the process of preparing a defense strategy and preserving evidence for your defense. Also, if you are eligible, there are steps you can take in order to make your chances of being included in a first offender/diversionary court more probable. Read More

If you or a loved one has been charged with a crime in Pennsylvania, contact Mike DiCindio, Esq today at 610.220.4691!

DUI - 1 st Offense

I’ve been Charged with a DUI – 1st Offense…

1st offense DUI’s are often an individual’s first experience in the criminal justice system. The penalties include jail time and a lengthy license suspension. In many cases you may be eligible for a first offender program (ARD) that will limit the license suspension, avoid the jail time and permit you to have the matter expunged without a conviction ever being entered. If you are eligible for the first offender program your case will typically move in a more expedited fashion. We will still investigate and discuss any legal defenses that you may have but if you are accepted into the first offender program and we determine that it is the best option for you (more times than not it is) we will not typically be permitted to litigate the matter at trial or motions before entering the program. If you are not accepted into the program, are not eligible for it, or choose to forgo entry, we will have the ability to fully litigate the case at trial. Read More

(a)  General impairment.–

(1)  An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2)  An individual may not drive, operate or 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 individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(b)  High rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c)  Highest rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(d)  Controlled substances.–An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual’s blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii).

(2)  The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3)  The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4)  The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(e)  Minors.–A minor may not drive, operate or 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 minor’s blood or breath is 0.02% or higher within two hours after the minor has driven, operated or been in actual physical control of the movement of the vehicle.

(f)  Commercial or school vehicles.–An individual may not drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle in any of the following circumstances:

(1)  After the individual has imbibed a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is:

(i)  0.04% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a commercial vehicle other than a school bus or a school vehicle.

(ii)  0.02% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a school bus or a school vehicle.

(2)  After the individual has imbibed a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(3)  While the individual is under the influence of a controlled substance or combination of controlled substances, as defined in section 1603 (relating to definitions).

(4)  While the individual is under the combined influence of alcohol and a controlled substance or combination of controlled substances, as defined in section 1603.

(g)  Exception to two-hour rule.–Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

(1)  where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2)  where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

(a) General rule.— Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

(b) Timing.—

(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:

(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the defendant is being sentenced.

(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.

(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.

75 Pa.C.S.A.  Penalties

(a)  General impairment. Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo a mandatory minimum term of six months’ probation;

(ii) pay a fine of $ 300;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

(2) For a second offense, to:

(i) undergo imprisonment for not less than five days;

(ii) pay a fine of not less than $ 300 nor more than $ 2,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than ten days;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(b)  High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents. Except as set forth in subsection (c), an individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $ 750 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(4) For a fourth or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c) Incapacity; highest blood alcohol; controlled substances An individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) or testing of blood pursuant to a valid search warrant or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $ 1,000 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 2,500; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c.1)  Violation involving minor occupant. An individual who violates section 3803(b)(5) (relating to grading), in addition to any penalty imposed in this chapter, shall be sentenced as follows:

(1) For a first offense, to:

(i) pay a fine of not less than $ 1,000; and

(ii) complete 100 hours of community service.

(2) For a second offense, to:

(i) pay a fine of not less than $ 2,500; and

(ii) undergo imprisonment of not less than one month nor more than six months.

(3) For a third or subsequent offense, undergo imprisonment of not less than six months nor more than two years.

(d)  Extended supervision of court. If a person is sentenced pursuant to this chapter and, after the initial assessment required by section 3814(1), the person is determined to be in need of additional treatment pursuant to section 3814(2), the judge shall impose a minimum sentence as provided by law and a maximum sentence equal to the statutorily available maximum. A sentence to the statutorily available maximum imposed pursuant to this subsection may, in the discretion of the sentencing court, be ordered to be served in a county prison, notwithstanding the provisions of 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement).

(e)  Suspension of operating privileges upon conviction.

(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:

(i) an offense under section 3802; or

(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver’s License Compact).

(2) Suspension under paragraph (1) shall be in accordance with the following:

(i) Except as provided for in subparagraph (iii), 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.

(ii) 18 months for a misdemeanor of the first degree or felony of the third degree under this chapter.

(iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.

(iv) For suspensions imposed under paragraph (1)(ii), notwithstanding any provision of law or enforcement agreement to the contrary, all of the following apply:

(A) Suspensions shall be in accordance with Subchapter D of Chapter 15 (relating to the Driver’s License Compact).

(B) In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).

DUI - 2nd Offense

I’ve been Charged with a DUI – 2nd Offense…

Second offense DUI offenders are facing more serious penalties than a first-time offender. The potential jail time for a highest tier second offense DUI begins at a 90-day mandatory minimum sentence (and more if a judge feels it is appropriate). All defenses that you may have will be investigated in the matter. At times this means consulting with expert toxicologists or interviewing witnesses. Of great importance in every DUI case is the reason behind the stop of the vehicle. We will need to evaluate and determine if there are any constitutional violations based on the officer’s actions. Once we have established and evaluated your legal defenses, we will determine if your best option is to have a trial and attempt to beat the case or seek out a mitigated charge/sentence. Many 2nd time DUI offenders will be eligible for the county Restrictive Punishment Program (RPP). This will drastically reduce the amount of jail time that you may serve by reducing the jail time and adding electronic home monitoring. Read More

(a)  General impairment.–

(1)  An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2)  An individual may not drive, operate or 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 individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(b)  High rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c)  Highest rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(d)  Controlled substances.–An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual’s blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii).

(2)  The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3)  The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4)  The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(e)  Minors.–A minor may not drive, operate or 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 minor’s blood or breath is 0.02% or higher within two hours after the minor has driven, operated or been in actual physical control of the movement of the vehicle.

(f)  Commercial or school vehicles.–An individual may not drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle in any of the following circumstances:

(1)  After the individual has imbibed a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is:

(i)  0.04% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a commercial vehicle other than a school bus or a school vehicle.

(ii)  0.02% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a school bus or a school vehicle.

(2)  After the individual has imbibed a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(3)  While the individual is under the influence of a controlled substance or combination of controlled substances, as defined in section 1603 (relating to definitions).

(4)  While the individual is under the combined influence of alcohol and a controlled substance or combination of controlled substances, as defined in section 1603.

(g)  Exception to two-hour rule.–Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

(1)  where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2)  where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

(a) General rule.— Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

(b) Timing.—

(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:

(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the defendant is being sentenced.

(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.

(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.

75 Pa.C.S.A.  Penalties

(a)  General impairment. Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo a mandatory minimum term of six months’ probation;

(ii) pay a fine of $ 300;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

(2) For a second offense, to:

(i) undergo imprisonment for not less than five days;

(ii) pay a fine of not less than $ 300 nor more than $ 2,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than ten days;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(b)  High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents. Except as set forth in subsection (c), an individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $ 750 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(4) For a fourth or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c) Incapacity; highest blood alcohol; controlled substances An individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) or testing of blood pursuant to a valid search warrant or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $ 1,000 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 2,500; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c.1)  Violation involving minor occupant. An individual who violates section 3803(b)(5) (relating to grading), in addition to any penalty imposed in this chapter, shall be sentenced as follows:

(1) For a first offense, to:

(i) pay a fine of not less than $ 1,000; and

(ii) complete 100 hours of community service.

(2) For a second offense, to:

(i) pay a fine of not less than $ 2,500; and

(ii) undergo imprisonment of not less than one month nor more than six months.

(3) For a third or subsequent offense, undergo imprisonment of not less than six months nor more than two years.

(d)  Extended supervision of court. If a person is sentenced pursuant to this chapter and, after the initial assessment required by section 3814(1), the person is determined to be in need of additional treatment pursuant to section 3814(2), the judge shall impose a minimum sentence as provided by law and a maximum sentence equal to the statutorily available maximum. A sentence to the statutorily available maximum imposed pursuant to this subsection may, in the discretion of the sentencing court, be ordered to be served in a county prison, notwithstanding the provisions of 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement).

(e)  Suspension of operating privileges upon conviction.

(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:

(i) an offense under section 3802; or

(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver’s License Compact).

(2) Suspension under paragraph (1) shall be in accordance with the following:

(i) Except as provided for in subparagraph (iii), 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.

(ii) 18 months for a misdemeanor of the first degree or felony of the third degree under this chapter.

(iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.

(iv) For suspensions imposed under paragraph (1)(ii), notwithstanding any provision of law or enforcement agreement to the contrary, all of the following apply:

(A) Suspensions shall be in accordance with Subchapter D of Chapter 15 (relating to the Driver’s License Compact).

(B) In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).

DUI - 3rd & Subsequent

I’ve been Charged with a DUI – 3rd & Subsequent…

Third offense DUI’s within a ten-year period can come with some of the harshest penalties a DUI offender can experience. You can be facing a state prison mandatory minimum sentence and even felony grading in some situations. Many offenders who are facing third offense DUI charges have battled with alcohol or drug addiction in some manner. If that is the case, we will determine whether a treatment court program, like recovery court in Chester County, is a good option for you. While doing so, we will also evaluate and determine if there are any constitutional violations based on the officer’s actions and whether you have any other viable legal or factual defenses to the case. If a treatment court option is best, we will make the proper applications and attempt to have you accepted into the program. This would be a treatment-based program with a drastically reduced prison sentence from the one normally imposed without being a part of the program. Otherwise, we will begin to prepare you case for trial. With a 3rd offense DUI you will have the option of a jury or bench trial. Read More

(a)  General impairment.–

(1)  An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2)  An individual may not drive, operate or 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 individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(b)  High rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c)  Highest rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(d)  Controlled substances.–An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual’s blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii).

(2)  The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3)  The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4)  The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(e)  Minors.–A minor may not drive, operate or 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 minor’s blood or breath is 0.02% or higher within two hours after the minor has driven, operated or been in actual physical control of the movement of the vehicle.

(f)  Commercial or school vehicles.–An individual may not drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle in any of the following circumstances:

(1)  After the individual has imbibed a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is:

(i)  0.04% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a commercial vehicle other than a school bus or a school vehicle.

(ii)  0.02% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a school bus or a school vehicle.

(2)  After the individual has imbibed a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(3)  While the individual is under the influence of a controlled substance or combination of controlled substances, as defined in section 1603 (relating to definitions).

(4)  While the individual is under the combined influence of alcohol and a controlled substance or combination of controlled substances, as defined in section 1603.

(g)  Exception to two-hour rule.–Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

(1)  where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2)  where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

(a) General rule.— Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

(b) Timing.—

(1) For purposes of sections 1553(d.2) (relating to occupational limited license), 1556 (relating to ignition interlock limited license), 3803 (relating to grading), 3804 (relating to penalties) and 3805 (relating to ignition interlock), the prior offense must have occurred:

(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the defendant is being sentenced.

(2) The court shall calculate the number of prior offenses, if any, at the time of sentencing.

(3) If the defendant is sentenced for two or more offenses in the same day, the offenses shall be considered prior offenses within the meaning of this subsection.

75 Pa.C.S.A.  Penalties

(a)  General impairment. Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo a mandatory minimum term of six months’ probation;

(ii) pay a fine of $ 300;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

(2) For a second offense, to:

(i) undergo imprisonment for not less than five days;

(ii) pay a fine of not less than $ 300 nor more than $ 2,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than ten days;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(b)  High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents. Except as set forth in subsection (c), an individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $ 500 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $ 750 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(4) For a fourth or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 1,500 nor more than $ 10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c) Incapacity; highest blood alcohol; controlled substances An individual who violates section 3802(a)(1) and refused testing of breath under section 1547 (relating to chemical testing to determine amount of alcohol or controlled substance) or testing of blood pursuant to a valid search warrant or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $ 1,000 nor more than $ 5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $ 1,500;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $ 2,500; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c.1)  Violation involving minor occupant. An individual who violates section 3803(b)(5) (relating to grading), in addition to any penalty imposed in this chapter, shall be sentenced as follows:

(1) For a first offense, to:

(i) pay a fine of not less than $ 1,000; and

(ii) complete 100 hours of community service.

(2) For a second offense, to:

(i) pay a fine of not less than $ 2,500; and

(ii) undergo imprisonment of not less than one month nor more than six months.

(3) For a third or subsequent offense, undergo imprisonment of not less than six months nor more than two years.

(d)  Extended supervision of court. If a person is sentenced pursuant to this chapter and, after the initial assessment required by section 3814(1), the person is determined to be in need of additional treatment pursuant to section 3814(2), the judge shall impose a minimum sentence as provided by law and a maximum sentence equal to the statutorily available maximum. A sentence to the statutorily available maximum imposed pursuant to this subsection may, in the discretion of the sentencing court, be ordered to be served in a county prison, notwithstanding the provisions of 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement).

(e)  Suspension of operating privileges upon conviction.

(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:

(i) an offense under section 3802; or

(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver’s License Compact).

(2) Suspension under paragraph (1) shall be in accordance with the following:

(i) Except as provided for in subparagraph (iii), 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.

(ii) 18 months for a misdemeanor of the first degree or felony of the third degree under this chapter.

(iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.

(iv) For suspensions imposed under paragraph (1)(ii), notwithstanding any provision of law or enforcement agreement to the contrary, all of the following apply:

(A) Suspensions shall be in accordance with Subchapter D of Chapter 15 (relating to the Driver’s License Compact).

(B) In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).

Drug DUI

I’ve been Charged with a Drug related DUI…

Drug DUIs can be based upon illicit and illegal substances but in many cases in our current society these cases can involve valid and legally prescribed medications. With legal drug cases the levels of prescribed medications in the driver’s system as well as an expert’s opinion may be the difference between a guilty or not-guilty verdict or, in some cases, the difference between the Commonwealth proceeding with the prosecution or not.

The first thing we will do in the case of “legal” drugs that are prescribed is consult with a respected forensic toxicologist who can help us determine if the levels in your blood when you were operating were consistent with the prescribed dosages that you take. If so, the Commonwealth may not be able to prosecute your case. Like any other DUI we will need to evaluate and determine if there are any constitutional violations based on the officer’s actions or any other legal or factual defenses. In cases where the Commonwealth must prove impairment, the specific facts of the case, signs of impairment, expert opinions, officer observations and allegations of which drugs you were under the influence of becomes incredibly important. Discrediting the Commonwealth’s opinions, evidence and observations may be a way to beat the case at trial. Read More

(a)  General impairment.–

(1)  An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2)  An individual may not drive, operate or 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 individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(b)  High rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c)  Highest rate of alcohol.–An individual may not drive, operate or 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 individual’s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(d)  Controlled substances.–An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual’s blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii).

(2)  The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3)  The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4)  The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(e)  Minors.–A minor may not drive, operate or 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 minor’s blood or breath is 0.02% or higher within two hours after the minor has driven, operated or been in actual physical control of the movement of the vehicle.

(f)  Commercial or school vehicles.–An individual may not drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle in any of the following circumstances:

(1)  After the individual has imbibed a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is:

(i)  0.04% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a commercial vehicle other than a school bus or a school vehicle.

(ii)  0.02% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a school bus or a school vehicle.

(2)  After the individual has imbibed a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(3)  While the individual is under the influence of a controlled substance or combination of controlled substances, as defined in section 1603 (relating to definitions).

(4)  While the individual is under the combined influence of alcohol and a controlled substance or combination of controlled substances, as defined in section 1603.

(g)  Exception to two-hour rule.–Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

(1)  where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2)  where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

Breath Test vs. Blood Test

What is the Difference between a Breath Test And a Blood Test…

When someone is arrested for DUI, absent a case where it is based upon observations only and they have refused testing, a DUI defendant will undergo a blood test or a breath test. Either test must conform with the law’s requirements and procedures such as chain of custody, margin of error, testing procedures, calibration, test operator certifications, and many more matters that must be evaluated before determining that the test results should be accepted and not tested in Court.

For a blood test, we will be provided with multiple records of calibration and accuracy of the breath testing machine and solutions used within. We will review those to make sure there are no problems that would stop the machine or solutions from being used/accurate and therefore inadmissible. We will also check the margin of error for the machine in order to determine if you may be able to fall into a lower penalty tier given the machines margin. With blood results the chain of custody of the blood must be evaluated in order to be certain the correct sample was tested and returned. Further, there will also be a margin of error that may impact penalty tiers. What Is the Difference Between A Breath Test And A Blood Test?

 

(a)  Observation.The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test.

 (b)  Procedures.Alcohol breath tests shall be conducted by a certified breath test operator. Accuracy inspection tests and calibrations conducted using breath test equipment shall be performed by a certified breath test operator, the manufacturer or its authorized representative or a person who has received comparable training or instruction. Alcohol breath tests, accuracy inspection tests and calibrations conducted using breath test equipment shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. The procedures for alcohol breath testing shall include, at a minimum:

(1)  Two consecutive actual breath tests, without a required waiting period between the two tests.

(2)  One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution. The test results will be disregarded, and the breath test device will be removed from service under §  77.25(b)(4) (relating to accuracy inspection tests for Type A equipment) if one of the following occurs:

(i)   If the difference between the results of the two actual alcohol breath tests is .02 or more, for machines read to the second decimal place, or .020 or more for machines read to the third decimal place.

(ii)   If the simulator test yields a result less than .09% or greater than .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less than .090% or greater than .109% when the breath test device can be read to the third decimal place.

 (c)  Procedures for adjustment.Breath test equipment which fails the testing under §  77.25(b) or subsection (b) shall be placed out of service and shall be serviced, repaired and adjusted, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction prior to being placed back into service. In addition, the breath test device shall be tested under subsection (b) prior to being placed back into service.

 (d)  Simulator solution certification.The manufacturer of simulator solution shall certify to the test user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis by a laboratory independent of the manufacturer.

 (e)  Ampoule certification.The manufacturer of ampoules utilized in Type A breath testing devices shall certify to the user that its ampoules will produce the intended results when used for actual breath tests, accuracy inspection tests or for calibrating breath test devices. The certification shall be based on laboratory testing conducted by a laboratory independent of the manufacturer. The laboratory testing shall employ generally accepted scientific methods sufficient to insure that the ampoules conform to manufacturer specification.

Equipment used for blood analysis to determine the amount of alcohol in a person’s blood which performs the analysis by means of gas chromatography, enzymatic procedures, distillation procedures or diffusion procedures is approved by the Department provided that:

(1)  The equipment is located within a clinical laboratory currently licensed by the Department.

(2)  The particular brand or model of equipment used and a reagent or procedures relating thereto have not been prohibited by specific notification of the Department under §  5.46 (relating to reagents and equipment).

(3)  A clinical laboratory performing blood analyses with the equipment has in effect an approval to provide the special analytical services under §  5.50 (relating to approval to provide special analytical services).

Aggravated Assault and Homicide by Vehicle (and while DUI)

I’ve been Charged with DUI – Aggravated Assault and Homicide by Vehicle…

Entering into a building or structure that you do not have permission to enter qualifies as Criminal Trespass in Pennsylvania. There is no requirement that another crime be committed while inside. The manner of entry will impact the way in which you are charged. If there is no force used to enter (as that will often be a sign of lack of permission) there may be defenses available to you. It is important to remember that the Commonwealth must prove lack of permission and/or notice of lack of permission in these cases.

We need to look at the property and area that was entered, we will investigate and go to the location to determine if there was proper notice that the property was not to be entered or that it was private. Often times properties are not clearly marked. Similarly, we need to determine if there was a prior or ongoing relationship of any kind with an owner or person in charge of the location/property. If there was, there is a possibility that we can argue that there was permission to be in the property. For example, one roommate says you did not have permission, but another had given it to you. The main element of a criminal trespass that we are attacking is permission to be where you are. Read More

(a)  Offense defined.–Any person who negligently causes serious bodily injury to another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 commits a felony of the second degree when the violation is the cause of the injury.

(a)  Offense.–Any person who recklessly or with gross negligence causes serious bodily injury to another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except section 3802 (relating to driving under influence of alcohol or controlled substance), is guilty of aggravated assault by vehicle, a felony of the third degree when the violation is the cause of the injury.

(a)  Offense.–Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

(a)  Offense defined.–

(1)  A person who unintentionally causes the death of another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802:

(i)  is guilty of a felony of the second degree; or

(ii)  is guilty of a felony of the first degree if, before sentencing on the present violation, the person has incurred a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition for any of the following:

(A)  An offense under section 3802.

(B)  An offense under former section 3731 (relating to driving under influence of alcohol or controlled substance).

(C)  An offense which constitutes a felony under this subchapter.

(D)  An offense substantially similar to an offense under clause (A), (B) or (C) in another jurisdiction.

(E)  Any combination of the offenses under clause (A), (B), (C) or (D).

Accelerated Rehabilitative Disposition (ARD)

What is Accelerated Rehabilitative Disposition (ARD)…

As a first time DUI offender you may be eligible to participate in the ARD program. This program will allow for your case to be handled by imposing probation, a lesser license suspension, no jail time and other conditions. At the conclusion of the case, if successful, the matter is dismissed without a conviction. This program must be applied for and acceptance into the program is determined by the District Attorney’s Office. We will handle the application/consideration process while investigating your case for other legal issues, as well. Helping you to navigate the requirements of the program like treatment, evaluations, classes, community service and more. Read More

(a)  Eligibility.–

(1)  Except as set forth in paragraph (2), a defendant charged with a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) may be considered by the attorney for the Commonwealth for participation in an Accelerated Rehabilitative Disposition program in a county if the program includes the minimum requirements contained in this section.

(2)  The attorney for the Commonwealth shall not submit a charge brought under this chapter for Accelerated Rehabilitative Disposition if any of the following apply:

(i)  The defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under section 3802 within ten years of the date of the current offense unless the charge was for an ungraded misdemeanor under section 3802(a)(2) and was the defendant’s first offense under section 3802.

(ii)  An accident occurred in connection with the events surrounding the current offense and an individual other than the defendant was killed or suffered serious bodily injury as a result of the accident.

(iii)  There was a passenger under 14 years of age in the motor vehicle the defendant was operating.

(b)  Evaluation and treatment.–

(1)  A defendant offered Accelerated Rehabilitative Disposition for a violation of section 3802 is, as a condition of participation in the program, subject to the following requirements in addition to any other conditions of participation imposed by the court:

(i)  The defendant must attend and successfully complete an alcohol highway safety school established under section 1549 (relating to establishment of schools). A participating defendant shall be given both oral and written notice of the provisions of section 1543(b) (relating to driving while operating privilege is suspended or revoked).

(ii)  Prior to receiving Accelerated Rehabilitative Disposition or other preliminary disposition, the defendant must be evaluated under section 3816(a) (relating to requirements for driving under influence offenders) to determine the extent of the defendant’s involvement with alcohol or other drug and to assist the court in determining what conditions of Accelerated Rehabilitative Disposition would benefit the defendant and the public. If the evaluation indicates there is a need for counseling or treatment, the defendant shall be subject to a full assessment for alcohol and drug addiction in accordance with the provisions of section 3814(3) and (4) (relating to drug and alcohol assessments).

(iii)  If the defendant is assessed under subparagraph (ii) to be in need of treatment, the defendant must participate and cooperate with a licensed alcohol or drug addiction treatment program. The level and duration of treatment shall be in accordance with the recommendations of the full assessment. Nothing in this subparagraph shall prevent a treatment program from refusing to accept a defendant if the program administrator deems the defendant to be inappropriate for admission to the program. A treatment program shall retain the right to immediately discharge into the custody of the probation officer an offender who fails to comply with program rules and treatment expectations or refuses to constructively engage in the treatment process.

(iv)  The defendant must remain subject to court supervision for at least six months, but not more than 12 months.

(v)  The defendant must make restitution to any person that incurred determinable financial loss as a result of the defendant’s actions which resulted in the offense. Restitution must be subject to court supervision.

(vi)  The defendant must pay the reasonable costs of a municipal corporation in connection with the offense. Fees imposed under this subparagraph shall be distributed to the affected municipal corporation.

(vii)  The defendant must pay any other fee, surcharge or cost required by law. Except as set forth in subparagraph (vi), (viii) or (ix), a fee or financial condition imposed by a judge as a condition of Accelerated Rehabilitative Disposition or any other preliminary disposition of any charge under this chapter shall be distributed as provided for in 42 Pa.C.S. §§ 3571 (relating to Commonwealth portion of fines, etc.) and 3573 (relating to municipal corporation portion of fines, etc.).

(viii)  The defendant must pay the costs of compliance with subparagraphs (i), (ii) and (iii).

(ix)  The defendant shall pay a cost of $25 which shall be forwarded to the State Treasurer for deposit in the Emergency Medical Services Operating Fund.

(2)  The defendant shall be subject to a full assessment for alcohol and drug addiction if any of the following apply:

(i)  The evaluation under paragraph (1)(ii) indicates a likelihood that the defendant is addicted to alcohol or other drugs.

(ii)  The defendant’s blood alcohol content at the time of the offense was at least 0.16%.

(3)  The assessment under paragraph (2) shall be conducted by one of the following:

(i)  The Department of Health or its designee.

(ii)  The county agency with responsibility for county drug and alcohol programs or its designee.

(iii)  The clinical personnel of a facility licensed by the Department of Health for the conduct of drug and alcohol addiction treatment programs.

(4)  The assessment under paragraph (2) shall consider issues of public safety and shall include recommendations for all of the following:

(i)  Length of stay.

(ii)  Levels of care.

(iii)  Follow-up care and monitoring.

(c)  Insurance.–

(1)  This subsection shall only apply to a health insurance, health maintenance organization or other health plan required to provide benefits under section 602-A of the act of May 17, 1921 (P.L.682, No.284), known as The Insurance Company Law of 1921.

(2)  If an individual who is insured by a health insurance, a health maintenance organization or other health plan, that is doing business in this Commonwealth, the individual may not be deprived of alcohol and other drug abuse and addiction treatment or coverage within the scope of that plan due to the identification of an alcohol or other drug problem which occurs as a result of an assessment under this section.

(d)  Mandatory suspension of operating privileges.–As a condition of participation in an Accelerated Rehabilitative Disposition program, the court shall order the defendant’s license suspended as follows:

(1)  There shall be no license suspension if the defendant’s blood alcohol concentration at the time of testing was less than 0.10%.

(2)  For 30 days if the defendant’s blood alcohol concentration at the time of testing was at least 0.10% but less than 0.16%.

(3)  For 60 days if:

(i)  the defendant’s blood alcohol concentration at the time of testing was 0.16% or higher;

(ii)  the defendant’s blood alcohol concentration is not known;

(iii)  an accident which resulted in bodily injury or in damage to a vehicle or other property occurred in connection with the events surrounding the current offense; or

(iv)  the defendant was charged pursuant to section 3802(d).

(4)  For 90 days if the defendant was a minor at the time of the offense.

(e)  Failure to comply.–

(1)  A defendant who fails to complete any of the conditions of participation contained in this section shall be deemed to have unsuccessfully participated in an Accelerated Rehabilitative Disposition program, and the criminal record underlying participation in the program shall not be expunged.

(2)  The court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in the Rules of Criminal Procedure if the defendant:

(i)  fails to meet any of the requirements of this section;

(ii)  is charged with or commits an offense under 18 Pa.C.S. (relating to crimes and offenses); or

(iii)  violates any other condition imposed by the court.

(Nov. 29, 2004, P.L.1369, No.177, eff. imd.; Aug. 18, 2009, P.L.308, No.37, eff. 180 days)

Restrictive Probation Program (RPP)

What is a Restrictive Probation Program (RPP)…

The Restrictive Probation Program (RPP) in Chester County (other surrounding Counties have very similar programs/sentencing structures) allows for certain eligible DUI and Driving under Suspension DUI related offenders to drastically reduce the amount of jail time they must serve in exchange for added conditions like community service and electronic home monitoring (house arrest). Read More

DUI Laws – Sentencing Mandatories & Grading

General Impairment penalties (Undetermined BAC, .08 to .099% BAC)

No prior DUI offenses
  • ungraded misdemeanor
  • up to 6 months probation
  • $300 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • ungraded misdemeanor
  • 12 month license suspension
  • 5 days to 6 months jail time
  • $300 to $2,500 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • 2nd degree misdemeanor
  • 12 month license suspension
  • 10 days to 2 years prison
  • $500 to $5,000 fine
  • treatment when ordered
  • 1 year ignition interlock
3 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 10 days to 7 years prison
  • $500 to $5,000 fine
  • treatment when ordered
  • 1 year ignition interlock

The new law creates a higher set of penalties for those having higher BAC levels. It allows for treament at all levels, and requires alcohol highway safety school for all first and second time offenders.

High BAC penalties (.10 to .159% BAC)

No prior DUI offenses
  • ungraded misdemeanor
  • 12 month license suspension
  • 48 hours to 6 months prison
  • $500 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • ungraded misdemeanor
  • 12 month suspension
  • 30 days to 6 months prison
  • $750 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock
3 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 1 to 7 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock

For those at the highest BAC levels, the new law has strict penalties, but also allows for treatment. This even-handed approach allows for individuals to receive counseling for their alcohol problem, while still penalizing those who choose to continue the dangerous practice of drinking and driving.

In addition, drivers under the influence of controlled substances and those who refuse breath or chemical testing are subject to the highest BAC category penalties.

Highest BAC penalties (.16% and higher) or Controlled Substance

No prior DUI offenses
  • ungraded misdemeanor
  • 12 month license suspension
  • 72 hours to 6 months prison
  • $1,000 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,00 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 1 to 7 years prison
  • $2,500 to $10,000
  • treatment when ordered
  • 1 year ignition interlock

General Impairment penalties (Undetermined BAC, .08 to .099% BAC)

No prior DUI offenses
  • ungraded misdemeanor
  • up to 6 months probation
  • $300 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • ungraded misdemeanor
  • 12 month license suspension
  • 5 days to 6 months jail time
  • $300 to $2,500 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • 2nd degree misdemeanor
  • 12 month license suspension
  • 10 days to 2 years prison
  • $500 to $5,000 fine
  • treatment when ordered
  • 1 year ignition interlock
3 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 10 days to 7 years prison
  • $500 to $5,000 fine
  • treatment when ordered
  • 1 year ignition interlock

The new law creates a higher set of penalties for those having higher BAC levels. It allows for treament at all levels, and requires alcohol highway safety school for all first and second time offenders.

High BAC penalties (.10 to .159% BAC)

No prior DUI offenses
  • ungraded misdemeanor
  • 12 month license suspension
  • 48 hours to 6 months prison
  • $500 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • ungraded misdemeanor
  • 12 month suspension
  • 30 days to 6 months prison
  • $750 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock
3 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 1 to 7 years prison
  • $1,500 to $10,000 fine
  • treatment when ordered
  • 1 year ignition interlock

For those at the highest BAC levels, the new law has strict penalties, but also allows for treatment. This even-handed approach allows for individuals to receive counseling for their alcohol problem, while still penalizing those who choose to continue the dangerous practice of drinking and driving.

In addition, drivers under the influence of controlled substances and those who refuse breath or chemical testing are subject to the highest BAC category penalties.

Highest BAC penalties (.16% and higher) or Controlled Substance

No prior DUI offenses
  • ungraded misdemeanor
  • 12 month license suspension
  • 72 hours to 6 months prison
  • $1,000 to $5,000 fine
  • alcohol highway safety school
  • treatment when ordered
1 prior DUI offense
  • 1st degree misdemeanor
  • 18 month license suspension
  • 90 days to 5 years prison
  • $1,500 to $10,00 fine
  • alcohol highway safety school
  • treatment when ordered
  • 1 year ignition interlock
2 or more prior DUI offenses
  • Felony of the 3rd Degree
  • 18 month license suspension
  • 1 to 7 years prison
  • $2,500 to $10,000
  • treatment when ordered
  • 1 year ignition interlock

If you or a loved one has been charged with a crime in Pennsylvania, contact Mike DiCindio, Esq today at 610.220.4691!

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