What Are The Penalties For DUI In Pennsylvania?

Pennsylvania divides DUI into three tiers, based upon Blood Alcohol Content (BAC). These tiers are officially referred to as "general impairment," "high rate" and "highest rate".  The following chart breaks down and describes the penalties involved:

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

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

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

Accelerated Rehabilitative Disposition (ARD)
Requires courts to impose suspensions for ARDs based on the following BAC ranges:

• Less than .10% - no suspension,
• .10% to less than .16 - 30 day suspension, or
• .16% and above - 60 day suspension

-Effective February 1, 2004

License Suspensions
Suspensions will be imposed as follows:

• BAC below .10% and incapable of safe driving: No suspension for first offense if the driver meets certain criteria; 12 month license suspension for second or subsequent offense.
• BAC greater than or equal to .10% and less than .16%: 12 month license suspension for first and second offense. 18 month suspension for third or subsequent offense.
• BAC greater than or equal to .16%: 12 month license suspension for first offense. 18 month suspension for second or subsequent offense.
• Out-of-state DUI convictions: No suspension for first offense; 12 month license suspension for second or subsequent offense.

-Effective February 1, 2004

What Happens At The Preliminary Hearing?

The purpose of a preliminary hearing is to allow a magisterial district judge or a municipal court judge to determine whether the Commonwealth, meaning the district attorney, can demonstrate what is called a prima facie case against you.

A prima facie case just means that the Commonwealth has the burden to minimally show:

• Number One:  That a crime was committed, and
• Number Two:  That the individual charged is probably the person who committed the crime.

A prima facie case is NOT a determination of guilt.  It just shows that there is enough evidence for the case to proceed to the Court of Common Pleas.

Some people waive their preliminary hearing, meaning they agree that the Commonwealth has enough to prove prima facie, or

You and your attorney can ask for a hearing to determine if the Commonwealth can prove a prima facie case, meaning the Commonwealth will have to present live testimony.

Your attorney will have the opportunity to question the commonwealth witnesses under oath and make argument requesting that the case be dismissed or that certain charges be dismissed.

Should I Waive My Preliminary Hearing?

Waiving your preliminary hearing depends on the facts of your case.  And, if you are eligible for acceptance into the Accelerated Rehabilitation Disposition program, commonly referred to as ARD, many counties require you to waive your preliminary hearing, Bucks County is one them.

However, for many cases, it is always beneficial to have the Commonwealth present their prima facie case.  The preliminary hearing is extremely important as it will allow your attorney to gather more information surrounding the allegations against you.

It also locks in testimony from the officer or officers and other witnesses.  At this hearing, your attorney will also be able to point out any discrepancies that may be testified to with the information that is contained in the complaint and police reports, or later testified to at trial.

What is Accelerated Rehabilitative Disposition (ARD)?

Accelerated Rehabilitative Disposition (ARD) is a diversionary program administered by the District Attorney that allows some first-time, non-violent offenders the opportunity to avoid a permanent criminal record.  ARD is designed to allow people who have made mistakes by committing a non-violent crime to earn a dismissal of the charges filed against them.

The District Attorney of each county decides who will be eligible for ARD and the conditions of ARD probation.  The ARD application process and conditions for eligibility differ from county to county.  Admission into ARD is not automatic.

Although the conditions of each defendant’s ARD probation can vary, typically you must undergo a period of probation, make restitution (if applicable), and pay court costs plus the supervision fees associated with ARD.  In addition, for DUI cases there is a requirement to complete the Alcohol Safe Driving Classes as well as any recommended treatment. Finally, there is usually at least 10 hours of community service required.

If you successfully complete the ARD program, you can file a petition (or in some counties it will be automatic) to have all records of the arrest expunged (destroyed) and there will be no record whatsoever that you were charged with a crime.  In the event that you are prosecuted for a subsequent DUI within 10 years of being placed on ARD then the ARD will count as a first offense.

If you violate any conditions of the ARD probation, you may be brought back to Court and prosecuted as if you had never been placed in the ARD program.

One of the most common crimes for which persons are placed into ARD is DUI.  A person charged with DUI who is accepted into ARD will receive a significantly reduced license suspension.

After Being Arrested For DUI, Can I still Drive?

Many people ask if they can still drive after being arrested for DUI.  For most people, the answer is yes, unless, you were driving with an already suspended license.

Loss of your license is conviction based.  Therefore, you can still drive until you are ordered by the Common Pleas Court to hand over your license to the Pennsylvania Department of Transportation or until you receive notification from Penn Dot to surrender your license.

How Long Will My License Be Suspended for DUI?

License suspensions for Pennsylvania DUI vary depending on the DUI law which creates a tiered approach to DUI and the penalties involved.  The combination of an individual's Blood Alcohol Content level and any prior offenses determines the licensing requirements and penalties.

Depending on your circumstances, you could be facing no license suspension or as much as a suspension of 18 months with a mandatory ignition interlock for one year after your suspension.  Most guilty pleas or convictions result in a one year license suspension.

Can I Refuse To Take A Breathalyzer Test Or Give Blood?

Many people are unclear as to whether or not they can refuse to take a breathalyzer test or give blood when asked by the police.  The answer is YES, but by refusing, you can suffer consequences without the police actually knowing what your blood alcohol content (or BAC) level is.

Pennsylvania has what is called an "implied consent" law which means that if you have been lawfully arrested by an officer, who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your BAC.

By refusing, you will automatically lose your license for one year, and the state will charge you with the highest level DUI offense allowable under the law; which means, you will face the most severe penalties.  And, if you are convicted, you will have to accept penalties for both the refusal, which is your license suspension through Penn DOT, and the DUI penalties through the Court.  So, if you refuse the test you probably will add another year to the DUI one year suspension which will result in a 2 year loss of license.

At The Time Of The Initial Stop, Can I Refuse To Answer Police Questions?

When you have been stopped by the police, it can be a very intimidating experience.  Television has taught us that it's best to not answer questions without an attorney being present for fear of self incrimination.  However, when faced with a stressful experience, people tend to not think as clearly as they normally would.

Upon any traffic stop, the officer must advise you what traffic violation of the motor vehicle code he has stopped you for.  At that time, upon the officer’s request, you are required to present your vehicle registration card, driver's license and information relating to financial responsibility.

You should always be polite and cooperative; however, you do not have to make any statements, especially not in response to: "Have you been drinking?" If you admit to drinking even one beer, it gives the officer reason to continue with questions and tests. In fact, with every word you say, the officer is checking for alcohol on your breath or listening for slurred speech.  Most importantly, the officer is building probable cause to ultimately justify having you submit to the chemical test.

Do Police Have To Read Me My Miranda Warnings Before Arrest?

I often hear clients say that I was never read my Miranda rights.  The police are only required to read an individual their rights, or Miranda warnings, before they interrogate or question a "detained" individual; meaning you are under arrest and not free to leave.

Therefore, for example, if you are stopped by the police and the officer asks you, "How much have you had to drink?", any responses that you give to these questions before being placed under arrest may be introduced against you without Miranda warnings being read.  And, if the officer believes that he has enough information to prove that you are DUI, he may not read the rights to you because he does not intent to question you.

The bottom line is in the event you are in custody (not free to leave), AND the police question you without your having been advised of your rights, and having waived your rights, the police may have violated your constitutional rights.  In the event that your rights are violated by the police, the case is not dismissed, but rather your statements may be excluded from the trial.

How And When Is Bail Determined?

When people hear the word "bail", they immediately think of the money needed to get out of jail.

However, Bail is not something that is determined for everyone who has been arrested.  Bail is set to insure your future appearance in court, and it is determined on a number of factors. For example:

• The seriousness of the charges (felony vs. misdemeanor)
• Whether you have a criminal history, and if so, what is your criminal history?
• Do you have ties to the community?  Such as a job, a family and a fixed address?
• Are you a flight risk?
• And, are you a danger to the community?

If after you have been arrested, you negatively fall into the category of any of those factors, the police will take you to a District Judge or a bail commissioner for a preliminary arraignment in which you will be advised of your charges, you will be given the date of your preliminary hearing and the judge will then set your bail.

In the event that you received the charges in the mail, then at the time of your preliminary hearing the judge will set bail based upon the above factors.

There are 3 types of bail:

1. Cash amount such as $25,000.
2. $25,000 surety, meaning posting property or in the alternative 10% cash or $2,500.
3. Or, $25,000/ROR which means you are released on your own recognizance.  And, if you fail to show for court, you will owe $25,000 to the court.

I Was Arrested For DUI, Do I Need A Lawyer Who Handles DUI Cases?

If you have been arrested for DUI, it is most definitely in your best interest to have your case handled by an experienced criminal defense attorney who handles DUI cases.

There are many different types of lawyers; there are general practitioners, family lawyers, personal injury lawyers, and every other kind of lawyer.  Unfortunately, too many non-criminal defense attorneys are willing to handle DUI cases.  This could be a serious detriment to you.

DUI has become a very complex area of the law, and, in Pennsylvania, the potential penalty for a DUI conviction can range from probation to five years of incarceration.

Because the stakes can be so high, it is wise to seek legal advice with an experienced DUI attorney who is well-versed in the ever changing state of the law concerning the many factors and considerations of your arrest.  For example:

• the legalities of the stop of your vehicle by the police
• the results of your field sobriety test
• the probable cause for drawing your blood, and
• the areas in which to dispute the blood results

You need a lawyer who will be able to negotiate a fair resolution when appropriate, as well as a lawyer who has the experience and know-how to try and win the case, when it is warranted.

How Do I Choose The Right Attorney?

Choosing an attorney, I believe, is similar to choosing your doctor.  It is a very serious and personal decision to bear.

First, you need to identify the type of lawyer you need for the problem that you face.

When meeting an attorney, first and foremost, trust your instincts:

• Does this lawyer seem as if he wants to be there meeting with you?
• Or, is he making you feel like you are just another client?
• Is this lawyer taking the time to listen to you, and is he answering your questions in a way that you understand?
• Do you feel comfortable?
• Do you trust this lawyer?

In an attorney/client relationship you should not feel intimated.  You should feel completely comfortable in asking questions and assessing the answers you are getting to determine if the attorney knows what he's talking about.

An attorney who promises you a certain result, is guaranteed to NOT be worthy of your trust.  Every case is different, with different judges, different district attorneys, different police officers, and so on.

And, you should not allow price to be the most important consideration in who you hire.  The cliché, "You get what you pay for" can have detrimental effects on your future.

This publication is intended to educate the general public about legal issues.  It is for information purposes only and is not intended to be legal advice.  Prior to acting on any information contained here, you should seek and retain competent counsel.