Prescription Marijuana Could Result in a DUI Arrest In Pennsylvania

Pennsylvania recently hopped on board the ever-growing list of states that have made medical marijuana possible for chronically ill people. However, the new law did not address, nor change, the current DUI laws. As such, considering the archaic nature of the Pennsylvania Criminal Code, it remains illegal to drive with any marijuana in one’s system. This article will seek to clarify the law about driving and marijuana use in Pennsylvania.

DUI Laws in Downingtown, Pennsylvania

In Pennsylvania, it is illegal to drive, operate or be in actual physical control of the movement of a vehicle with marijuana in one’s blood system. Driving and operating a vehicle is obvious – whether a driver is on a highway or roadway, he or she is driving.

It is important to note the latter phrase “actual physical control.” This statement incorporates non-moving conduct, such as sitting in a parked vehicle with the engine running.

Therefore, even if a driver does not have an intention of driving the vehicle, he still has physical control of the vehicle’s movements. Under this scenario, he or she could be arrested.

Penalties for Cannabis-Based DUI in Chester County, PA

DUI offenses in Pennsylvania involving a controlled substance, such as marijuana, are subject to the highest penalties possible. The range of penalties that can be imposed on a defendant are contingent on the existence of prior DUI convictions, if any.

For a conviction, under 75 Pa.C.S. §3802(d), the following mandatory minimum penalties apply:

Mandatory
Incarceration

Minimum
Fine

License Suspension

Ignition Interlock

First Offense

72 hours

$1,000

12 months

No

Second Offense

90 days

$1,500

18 months

Yes

Third Offense

1 year

$2,500

18 months

Yes

Fourth + Offense

1 year

$2,500

18 months

Yes

Medicinal Marijuana Could Result in a DUI in Norristown, PA

Under 75 Pa.C.S. §3802(d)(1), it is illegal to drive with any amount of a Schedule I Controlled Substance in a driver’s blood system. Marijuana is a Schedule I drug under both Pennsylvania and Federal law; however, marijuana is unique in that it contains both active and inactive ingredients. Some drivers will show signs of recent marijuana use during a traffic stop. A majority of driver’s won’t show any signs of recent marijuana use, but will still have inactive metabolites in their system.

Prescription Marijuana Results in a DUI Arrest in Lancaster, PA

There are no current medical marijuana laws that protect drivers in Pennsylvania or elsewhere. It is irrelevant if a patient’s ID card is from a state that either allows medical marijuana patients to drive or otherwise legalizes marijuana.

This means, driving under the influence of marijuana, including medically prescribed marijuana, could potentially result in an individual being arrested for a DUI offense in Pennsylvania.

Effectively Dispute a Marijuana-based DUI in West Chester, PA

Most first time offenders will be eligible for Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) program. Upon successful completion of this program, all DUI charges qualify for dismissal and expungement.

Similarly, some defendants find the benefit of being admitted to Drug Court for marijuana-related cases. Successful completion of Drug Court allows the same charges to be dismissed and expungeable.

For defendants who are ineligible for ARD or Drug Court, there are still options to fight a DUI based on marijuana, such as:

  • A member of law enforcement must be within his or her jurisdiction to approach, investigate and/or arrest an individual.
  • A member of law enforcement must have reasonable suspicion to stop a moving vehicle or detain a person in a non-moving vehicle.
  • Defendants have the right to cross-examine and discredit an officer’s testimony regarding impairment.
  • A member of law enforcement must have probable cause to arrest a person for marijuana-based DUI.
  • Blood tests must be obtained with a driver’s consent or valid warrant.
  • Blood tests must be administered pursuant to specific rules and regulations.
  • Even if a blood test shows the presence of marijuana, the test must still be admissible in a court of law.

Things To Remember If Arrested for a DUI in Pennsylvania

A few words of advice apply to all criminal defendants. If you have been arrested or accused of a marijuana-based DUI,

  • Do not speak to, text, write or otherwise communicate to anyone about your case, especially the officer.
  • Do not post anything to social media platforms about your case, including Facebook, Twitter, Snapchat, and Instagram.
  • Consult an attorney right away to preserve your options, including eligibility for ARD or Drug Court.
  • Write down everything you remember about the night of the arrest, from the pre-arrest period to being released from the police station.
  • If there are any witnesses, such as a passenger, have them do the same as above.

The trial-proven attorneys at the Skinner Law Firm handle all forms of DUI cases, including DUI by marijuana and DUI by any other controlled substance. It is imperative to speak with an attorney before your first hearing.

If you have been arrested for DUI and fear you may have had any marijuana in your system at the time of your arrest, call the Skinner Law Firm today to schedule a consultation at (610) 436-1410.

 

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Impact of Birchfield v. North Dakota in Pennsylvania

blood sample dui missouri v. mcneely

On June 23, 2016, the United States Supreme Court held in Birchfield v. North Dakota, 579 U.S. __ (2016), that the warrantless search and seizure of blood in DUI cases is unconstitutional. Thus, states could not criminalize DUI blood draw refusals. Across the country, many state statutes were struck down and unenforceable – but how does the Birchfield ruling affect Pennsylvania?

 

In Pennsylvania, DUI sentences are subject to tiers. Tiers are determined by many factors, including blood alcohol content (BAC), drug involvement, injuries and accidents, vehicle types, etc. The lowest tier, such as when no BAC is available, has the least serious penalties. On the other hand, the highest tier such as BAC of .16% or above, results in the harshest penalties.

 

Logically, if a person refused to provide a sample of his or her blood to test for alcohol intoxication, there would be no BAC available, and he or she would ordinarily be subject to the lowest tier.  For sentencing purposes, this usually means no license suspension, no jail time and a maximum of six months of probation for a first offense DUI.

 

Pennsylvania’s Implied Consent Law for Refusal to Submit to a Blood Test

 

Unlike North Dakota, Pennsylvania does not have a wholly separate statute that criminalizes DUI blood draw refusals. Pennsylvania utilizes an inadvertent method in order to punish those who refuse to provide a blood sample. Under Pennsylvania’s Implied Consent Law, 75 Pa.C.S. §1547, anyone who refuses to provide a blood sample and is found guilty of DUI is subject to the highest tier punishment.

 

Before Birchfield, and upon arrest for suspected DUI, drivers in Pennsylvania were read the O’Connell warnings that if failed to submit to chemical testing they were subject to enhanced criminal penalties –  including jail time. After the Birchfield decision, the Pennsylvania Department of Transportation (PennDOT) amended its form to remove the criminal enhancement penalties. However, the Pennsylvania Legislature has not amended the applicable statute.

 

As the law currently applies pursuant to Birchfield, police must now obtain consent from the suspected DUI driver for a blood sample or get a warrant. Considering drivers are still subject to an additional one year license suspension for refusing to provide a sample, as a civil penalty under the implied consent law, many drivers decide to consent. Even if consent is given, a driver’s consent must be voluntary and not based “on the pain of committing a criminal offense” as the Supreme Court noted.

 

Is 75 Pa.C.S. 1547 Constitutional After Birchfield?

 

The law remains undecided on the status and effect of 75 Pa.C.S. 1547’s criminal enhancement and legality, but the issue will certainly be considered by the Pennsylvania appellate courts sometime in the future.

 

Conclusion: Officers Will Be Getting More Warrants

If you have questions about a DUI case involving a refusal to submit to blood testing in West Chester in Chester County, or in Media in Delaware County, PA, then call an experienced criminal defense attorney at the Skinner Law Firm. We are experienced in filing and litigating motions to suppress blood test results in DUI related cases including felony DUI cases involving prior convictions, serious bodily injury or death. Call us today to discuss your case.

 

Read more about Forced Blood draw cases and the constitutionality of 75 Pa.C.S. 1547 in Pennsylvania.

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Accusations of Sexual Offenses In Pennsylvania

Sex Offender
Some of the most serious crimes that anyone can be charged with come under Title 31 of the Pennsylvania Criminal Code — Sexual Offenses.

Under the guise of approximately eight different sub-statutes, Pennsylvania punishes people who engage in various types of sexual conduct. Although every defendant is innocent until proven guilty at a trial, the reality is that the stigma of a sexual offense always leans against the defendant. The stain of a sexual offense charge often forces defendants to engage an active defense against a sexual offense charge, even though they have no burden to do so.

In addition, the criminal effects of a conviction always have lifetime consequences (especially Megan’s Law requirements). It is for these reasons that anyone charged with a sexual offense should take his or her case very seriously.

What Charges Can Be Brought Against Me?

Considering the circumstances, the ages and employment of the individuals involved, the conduct alleged, and the date an offense allegedly occurred, a defendant who is accused of sexual misconduct may be charged with one or more of the following offenses:

Nature of Sexual Offense Charges in Pennsylvania

The nature of sexual offense charges in Pennsylvania will depend on a number of factors, including:

Age: Age is an important factor in chargeability and defense. For most sexual offense statutes, age makes a difference when an alleged victim is less than 16 years old, when a defendant is four (4) years or more older. Mistake of age for complainants under 14 years old is not a defense; however, it can become a defense in cases involving complainants older than 14.

Strict Liability: Knowledge of a victim’s age is irrelevant in some situations. Anyone accused of any type of sexual conduct with a complainant who is actually less than 13 years old is “strictly liable” for the offense. There is no defense that the defendant thought the victim was 15, 16 or even 17 years old. In addition, sexual intercourse between an individual under 16 years old and a defendant who is 4 years or more older is strictly criminally liable under Pennsylvania statutes.

Sex Doesn’t Just Mean “Sex”: Sexual intercourse is not the only sexual activity that is punishable under the law. A few Pennsylvania statutes punish a broad range of sexual activity, including forms of penetration, however slight. Of course, even if no contact occurs, a defendant can always be prosecuted for criminal attempt or conspiracy to engage in a sexual offense.

Considerations for Prosecutions of Sexual Offenses in Pennsylvania

Lengthy Statute of Limitations: Most prosecutions must commence within 12 years of the alleged crime. Where a victim is under 18 years old, prosecution must commence within 12 years after the victim turns 18 years old or by the date the minor victim reaches 50 years old. Old, forgotten, and even sealed accusations nevertheless have a way of coming back to prosecute unsuspecting defendants (as in the Bill Cosby case).

Victim’s Sexual History: Evidence of a complainant’s past sexual history or reputation is not admissible in a sexual offense case. Often called “rape shield laws,” the legislative purpose is to protect complainants from coming forward out of fear of sexual judgment. Evidence of past sexual conduct is admissible at trial, however, only where the complainant’s consent with the defendant is an issue and only after a hearing on the matter.

Are There Possible Defenses to Charges for Sexual Offenses?

Even if consent is not an issue (such as being charged with statutory sexual assault), other defenses may be available. A defendant has a right to present an alibi to all charges alleged, and has a right to cross-examine a complainant and any other witnesses. If DNA evidence exists, there must be a proper chain of custody before such evidence is admissible at trial. With the assistance of counsel, you may be able to present these and other powerful defenses.

What are the Consequences of a Sexual Offense Conviction?

The consequences of a criminal conviction for any type of sexual misconduct are severe. Aside from the effects of a felony conviction, most defendants must register on the Sexual Offender Registration system for a period of 15 years, 25 years, or for life.

As a registered sexual offender, a defendant’s movements are tracked every year and home and work addresses, vehicle information, criminal information, picture and physical description are publicly available for the world to see.

A conviction for sexual misconduct has other implications. A convicted individual may not sponsor relatives, even spouses, for certain family-based immigration petitions. Convicted individuals may also be barred from: adopting or taking custody of minor relatives, obtaining teaching and other occupational licenses, operating certain child-based businesses, attending school events, rallies, PTO meetings, volunteering and even being on or near school property.

When a defendant is convicted of a sexual offense, the reality is that the whole family feels the effects.

Finding an Attorney for Sexually Motivated Crimes in Pennsylvania

Even if you are merely accused of a sexual offense — but not charged — it is most important to invoke your right to remain silent.

Do not speak to the police, the alleged victim or any family members about the incident. Do not agree to provide any DNA. It is also important not to submit to any type of junk science including polygraph tests.

Until you retain an attorney, police may attempt to get a hold of you any way possible. Nothing prevents them from calling your cell phone, contacting you through Facebook and even showing up to your home or school for questioning. Once you retain an attorney, police must cease all attempts to contact you directly.

If you or a loved one find yourselves in a situation where serious sexual accusations are made — even falsely — you should contact an attorney immediately.

The attorneys at Skinner Law Firm represent clients for a variety of allegations involving sexually motivated crimes in Chester County, and the surrounding areas of Delaware County and Montgomery County, Pennsylvania. With offices conveniently located in West Chester in Chester County and Media in Delaware County, our attorneys are ready to help you fight these serious charges. 

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What Happens at the DUI Preliminary Hearing in Delaware County?

Traffic Stop

If you were arrested for a DUI in Delaware County, PA, but were released the same night without seeing a judge, you may be wondering what happens next. After your release, you will be notified of the formal charges by a summons. The summons will be mailed to you from the magisterial district court in the jurisdiction where the arrest occurred.

Two summons will be mailed to your home – one first class mail and the second will be mailed certified mail. Both sets of documents are the same although one will require you (or someone in the household) to sign for the document.

After a DUI arrest in Delaware County, PA, the summons will arrive in approximately 1-2 weeks after an arrest. It might take longer than two weeks in some cases depending on which agency made the arrest. Included in the summons will be a preliminary hearing date and copy of the criminal complaint that outlines the charges and allegations against you.

If you were not processed, i.e. fingerprinted, the night you were arrested there will also be an Order from the court directing you to be processed by the arresting police department. This means that you will have to make arraignments to go to the police department to be fingerprinted ahead of your preliminary hearing.

The actual date of the hearing can depend on several factors, including:

  1. The judges’s schedule;
  2. The officer’s schedule; and
  3. Whether you submit to a blood or breath test, or refused chemical testing.

The Scheduling of Preliminary Hearing in Different Types of DUI Cases

DUI cases with a blood test reading will be scheduled out about 6 weeks after the arrest since the lab report will not be available for at least four weeks. Breath test results are known immediately, so drunk driving cases involving a breathalyzer reading are scheduled much sooner. Since there is no BAC report in refusal cases, the court also schedules those types of DUI cases within a couple of weeks.

Generally, preliminary hearings are listed in morning. Before arriving at the preliminary hearing, you and your attorney should already have discussed your options and intention ahead of time. In some circumstances it may be advisable to waive the preliminary hearing. For instance, to apply for ARD in Delaware County, PA, you must waive the hearing as a condition to apply for the program.

In other cases, it may be advisable to have the hearing. At a prelim, it is the prosecutor’s burden to call witnesses and to present evidence. Since the preliminary hearing is not a trial, not all the rules of evidence apply. For instance, certain types of hearsay are admissible. And credibility of witnesses is not relevant, so the judge must accept the testimony of witnesses against you as true. For this reason, it is generally not advisable to call clients as a witness in their own case since the judge will not consider it if only offered to contradict the Commonwealth’s witnesses.

At the end of the hearing, the magistrate judge must make a determination of whether the Commonwealth has presented what is known as a “primia facia case.” A prima facia case means that there is “some evidence” of a crime and that you are connected to it.

At this stage, the prosecutor doesn’t have to prove the case beyond a reasonable doubt. If the judge determines that the prosecutor has met its burden, the judge will hold the charge over for trial at the Court of Common Pleas in Delaware County, PA. All subsequent court appearance will also be held at the Delaware County Court of Common Pleas at the courthouse at 201 W Front St # 123 in Media, PA.

The last matter that will be address by the judge is bail. The purpose of bail is to secure your appearance for trial and to provide for the protection of the community. A judge may release you on recognizance (ROR Bail), unsecured bail, or require some form of security or cash bail. Generally speaking, if you are facing a first offense for driving under the influence (DUI), you will not be required post any money unless there is some aggravating circumstances involved in your case.

Additional Resources

List of the Magisterial District Courts in Delaware County – Visit the Delaware County Government website to find a list of the Magisterial District Courts in Delaware County which was last updated on December 1, 2015. Also find contact information for the Administrative Office for District Judges is located at 100 West Front Street, Media, Pennsylvania 19063-3504. The phone number or the Administrative Office is 610-565-6990. Note that some municipalities are served by more than one Court.

Conclusion

If you were arrested for a DUI cases in Delaware County, Pennsylvania, then contact an experienced drunk driving defense attorney. With offices conveniently located in Media, PA, in Delaware County, Michael Skinner is experienced in fighting DUI cases throughout Delaware County, Chester County and the surrounding areas in Pennsylvania.

Whether your case involves a breath or blood test reading over the legal limit of .08 or a refusal to submit to chemical test, Attorney Michael Skinner has the experience needed to fight your case. Call today to schedule a free consultation either over the phone or in the office. We can begin your defense today.

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Forced Blood Test in a DUI Case in Pennsylvania

blood sample dui missouri v. mcneely

The United States Supreme Court’s recent decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), fundamentally altered the manner in which law enforcement officers can take blood from a suspected drunk driver. The decision called into question the implied consent laws, such as the one that is codified in Pennsylvania at 75 Pa.C.S. § 1547(a)(1), that operate as a per se exception to the constitutional warrant requirement.

As a result, post-McNeely blood draws without a warrant may only occur upon the knowing and intelligent consent of the motorist or with exigent circumstances. Although many law enforcement agencies were quick to improve their training on how to get a warrant, other agencies have been slow to make any changes.

Because law enforcement officers are still not securing warrants in many of these DUI cases, criminal defense attorneys are busy filing and litigating motions to suppress the blood evidence.

Without consent, the criminal defense attorney will argue that the blood sample the Commonwealth tested to determine the blood alcohol concentration (BAC) was taken without a warrant in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super.2015)

The Superior Court of Pennsylvania recently considered the issue in Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super.2015), appeal granted, 131 A.3d 480 (Pa.2016).

First, the court recognized that the administration of a blood test is clearly a search under the Fourth Amendment. Second, the court recognized that a search conducted without a warrant is constitutionally impermissible unless an established exception applies. One exception involves actual consent when the officer asks for a voluntary blood draw and the subject gives free and voluntary consent.

In these cases, the central issue is whether the consent was really free and voluntary. The court will look at the constitutional validity of the citizen/police encounter giving rise to the consent and the voluntariness of the consent. Where the underlying encounter is lawful, the voluntariness of the consent becomes the exclusive focus of the court.

The Unconscious DUI Suspect

The issue becomes more complicated when the police haven’t obtained consent either because the suspect affirmatively refuses or because the suspect is unconscious.

In Commonwealth v. Myers, 118 A.3d 1122, the defendant was arrested on suspicion of DUI and transported to the hospital. The police officer who responded to the hospital observed the defendant unconscious and unresponsive. Id. at 1124. After attempts to have Mr. Myers respond to the officer were unsuccessful, the officer read the “standard informed consent warnings” to the unconscious man. Id. The defendant never signed consent warnings, and no warrant for the defendant’s blood was secured. Id. Nevertheless, the police officer obtained a warrantless blood sample from the defendant. Id.

The defendant sought suppression in the Municipal Court based on the warrantless draw of his blood. Id. The Municipal Court granted the suppression motion with respect to the blood because it concluded the defendant was unconscious and could not consent. In essence, the court found “it was not unreasonable” for the Commonwealth to obtain a warrant under the circumstances. Id. at 1124–25.

The Philadelphia Court of Common Pleas affirmed the ruling, and the Commonwealth appealed to the Superior Court of Pennsylvania. Id. at 1125. The Superior Court acknowledged that defendant’s case was unique because the defendant did not have an opportunity to refuse the blood draw:

Pennsylvania’s implied consent statute provides a driver under arrest with the statutory right of refusal to blood testing, see 75 Pa.C.S. § 1547(b)(1) (“If any person placed under arrest for a violation of Section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted….”).

Section 1547 provides for chemical testing when consent is not withdrawn pursuant to subsection (b)(1), and precludes a blood draw when consent is withdrawn and imposes penalties. Here, [the defendant] was arrested for DUI and transported to the hospital, but was not given the applicable warnings until a later time, at which point he could not claim the statutory protection of Section 1547(b)(1).

Id. at 1129 (footnote omitted). On appeal, the Superior Court affirmed the suppression court’s determination concluding the defendant could not refuse testing or consent to the blood test and exigent circumstances did not excuse the warrantless blood draw.

It is important to note that in Myers, 75 Pa.C.S.A. § 3755 (the “reports by emergency room personnel” law) was not at issue in the case. Id. at 1129. Section 3755 did not even apply to that case because Mr. Myers was not involved in a motor vehicle accident and Mr. Myers did not receive medical treatment “as a result of” any motor vehicle accident. Id. at 1129.

In that case, Mr. Myers was already under arrest at the time the police ordered the hospital to perform the warrantless blood draw. Myers, 118 A.3d at 1123–1124. As the court explained in Myers, since he was under arrest at the time, Mr. Myers possessed an explicit, statutory right to refuse chemical testing under Section 1547(b) — which the police denied him by waiting until he was rendered unconscious to draw his blood. See 75 Pa.C.S.A. § 1547(b) (providing a statutory right to refuse chemical testing to “any person placed under arrest for a violation of [75 Pa.C.S.A. § ] 3802” (“[d]riving under the influence of alcohol or controlled substance”)); Myers, 118 A.3d at 1129–1130.

The Supreme Court of Pennsylvania has granted an appeal so more guidance will soon be provided.

Is Pennsylvania’s Implied Consent Law Constitutional?

The next issues the courts will address is whether two “implied consent” statutes in Pennsylvania, Section 1547 and 3755, work together as a valid exception to the warrant requirement to allow for a blood draw taken without actual consent. These statutes have traditionally been used by officers to grant them the statutory right to have the hospital take the driver’s blood and receive the blood alcohol test results without a warrant.

The Superior Court of Pennsylvania in Commonwelth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016) recently refused to address the merits of the claims that Missouri v. McNeely, 133 S.Ct. 1552 (2013), renders 75 Pa.C.S.A. § 1547 and/or § 3755 unconstitutional. This issue is discussed in another blog article entitled “Implied Consent as an Exception to the Warrant Requirement in DUI Blood Test Cases in Pennsylvania.”


Michael Skinner is an experienced criminal defense attorney at Skinner Law Firm who represents clients in DUI cases involving a blood test including serious felony DUI cases involving death or serious bodily injury, throughout West Chester in Chester County and Media in Delaware County, PA.

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Are Pennsylvania’s Implied Consent Laws Unconstitutional?

Actual consent is the most commonly used exception to the warrant requirement in DUI blood draw cases in Pennsylvania. In these cases, the officer simply says “will you consent to a voluntary blood draw for the purpose of determining its alcohol or controlled substance concentration?” If the person agrees, then the officer can have the blood drawn and tested without a warrant.

The next question becomes whether an individual’s “implied consent” in drunk-driving cases satisfies the “consent” exception to the warrant requirement? Or are Pennsylvania’s Implied Consent Statutes that purport to allow a pre-arrest, non-exigent, non-consensual blood draw unconstitutional?

Can “Implied Consent” be an Exception to the Warrant Requirement

The Superior Court of Pennsylvania skirted around that issue in Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016). The court refused to address the merits of the claims that Missouri v. McNeely, U.S., 133 S.Ct. 1552, renders 75 Pa.C.S.A. § 1547 and/or § 3755 unconstitutional. Instead, the court saved that issue for another day.

Until a ruling comes down to squarely address the issue, it is important to understand Pennsylvania’s Implied Consent scheme and how Missouri v. McNeely might impact blood testing in this state. In McNeely, a plurality of the Court recognized the fact that “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol content] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.” McNeely, 133 S.Ct. 1563.

The plurality recognized that these implied consent laws “impose significant consequences when a motorist withdraws consent” and are one of the “legal tools” that states use “to enforce their drunk-driving laws and to secure [blood alcohol content] evidence without undertaking warrantless nonconsensual blood draws.” Id. at 1566.

Provisions in Pennsylvania’s Implied Consent Statutes

Certainly administrative penalties can apply to a refusal. But can Pennsylvania’s implied consent laws be seen as an exception to the warrant requirement? Two statutes in Pennsylvania, Section 1547 and 3755, comprise a statutory scheme that implies the consent of a driver to undergo chemical blood testing under particular circumstances. See Commonwealth v. Riedel, 651 A.2d 135, 139–140 (Pa.1994).

The first of those statutes, 75 Pa.C.S.A. § 1547 is the Commonwealth’s implied consent statute. The second statute, 75 Pa.C.S.A. § 3755 is entitled “[r]eports by emergency room personnel.” The second statute grants officers the statutory right to both have the hospital take the driver’s blood and receive the blood alcohol test results without a warrant.

In Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016), the driver was involved in a motor vehicle accident, which required that Ms. Defer receive “medical treatment in an emergency room of a hospital.” That trip to the hospital triggered the application of 75 Pa.C.S.A. § 3755.

The court reasoned that because the person was not under arrest at the time the hospital took her blood, the person did not have the statutory right to refuse chemical testing under 75 Pa.C.S.A. § 1547(b). Also, the person can still say, “I refuse” if they are unconscious and understand the purpose for the blood draw. But because it occurs in the hospital, that distinction is likely lost on the patient.

The Prosecutor’s Best Argument

The prosecutor in the Defer case claimed the blood was taken pursuant to the “consent” exception to the warrant requirement. Specifically, the Commonwealth argued that, pursuant to 75 Pa.C.S.A. § 1547(a), since the driver of a vehicle was involved in a motor vehicle accident and since the officer had probable cause to believe that the driver was drunk or impaired, then the driver “impliedly consented” to the blood draw under the provisions of 75 Pa.C.S.A. § 1547(a).

The prosecutor also argued that 75 Pa.C.S.A. § 3755, the officer did not need to obtain a warrant or demonstrate exigent circumstances in order to instruct the hospital staff to perform the blood draw while the driver received treatment in the hospital for injuries sustained as a result of the motor vehicle accident. Instead, the prosecutor argued that consent to the search was implied under the circumstances because together, sections 1547 and 3755 comprise a statutory scheme that implies the consent of a driver to undergo chemical blood testing under particular circumstances.

Without a Valid Exception – a Warrant is Needed to Take Blood

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. A search conducted without a warrant is deemed to be unreasonable. Therefore, the search is constitutionally impermissible unless an established exception applies. Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa.2000).

The courts in Pennsylvania have mentioned several different types of exceptions that might apply to the warrant requirement in a blood draw case including:

  1. actual consent;
  2. implied consent;
  3. search incident to lawful arrest; and
  4. exigent circumstances may negate the necessity of obtaining a warrant before conducting a search.

Pennsylvania’s Implied Consent Law in Section 1547

Pennsylvania has an “implied consent” law under 75 Pa.C.S.A. § 1547 that reads:

1547. Chemical testing to determine amount of alcohol or controlled substance

(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:

(1) in violation of … 3802 (relating to driving under influence of alcohol or controlled substance) …; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

(b) Suspension for refusal.—

(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person as follows:

(i) Except as set forth in subparagraph (ii), for a period of 12 months.

(ii) For a period of 18 months if any of the following apply: …

(2) It shall be the duty of the police officer to inform the person that:

(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and

(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties).

(3) Any person whose operating privilege is suspended under the provisions of this section shall have the same right of appeal as provided for in cases of suspension for other reasons.

75 Pa.C.S.A. § 1547(a) and (b).

Section 3755 for Reports by Emergency Room Personnel

Another statute relevant in many DUI cases involving injury is 75 Pa.C.S.A. § 3755, entitled “[r]eports by emergency room personnel.” In pertinent part, 75 Pa.C.S.A. § 3755 provides:

3755. Reports by emergency room personnel

(a) General rule.—If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose…. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.

75 Pa.C.S.A. § 3755(a).

A panel of the Superior Court of Pennsylvania has previously explained:

…together, sections 1547 and 3755 comprise a statutory scheme which, under particular circumstances, not only imply the consent of a driver to undergo chemical or blood tests, but also require hospital personnel to withdraw blood from a person, and release the test results, at the request of a police officer who has probable cause to believe the person was operating a vehicle while under the influence.

Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa.Super.2002) (internal quotations and citations omitted).

Conclusion

The court in Commonwealth v. Defer, 1119 MDA 2014, 2016 WL 1587016 (Pa. Super. Ct. 2016) seems to suggest that “implied consent” without actual consent might be an exception to the warrant requirement for a blood test in a DUI case. Other courts in other states have soundly rejected this approach. Only time will tell the true impact of the Missouri v. McNeely, 133 S. Ct. 1552 (2013) in Pennsylvania.


Michael Skinner is a DUI defense attorney with offices in West Chester in Chester County and Media in Delaware County, PA. He represent clients after a breath test, blood test or refusal. 

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You can get in trouble for WHAT?! A description of some lesser known (but actually punishable) crimes in Pennsylvania.

arrested man hands close up

         In light of the recent ACLU lawsuit in Allegheny Township, where a PA man was charged for hanging the American flag upside down with the letters A.I.M. on it, many readers were probably surprised to learn flag desecration is an actual criminal offense in Pennsylvania. Under the Criminal and Vehicle Code, certain criminal acts are obvious: driving under the influence (DUI), possession of marijuana, assault, theft, etc. With almost all crimes, there is intent – or a mens rea – to commit these offenses. Most people know they are breaking the law when committing any one of these punishable offenses.

         With some situations, an individual may try to avoid breaking the law, but is still committing a crime. For example, a person can be arrested for DUI without driving, so long as he or she was “in actual physical control of the movement” of a car. This would include a scenario where an individual leaves a party and falls asleep in the front seat of a car to sleep off the alcohol rather than drive home.  While this person isn’t technically driving, he or she is still breaking the law and can be found guilty of DUI. In this situation, similar to the flag desecrator, ignorance of the law is not a defense.

          Below is a list of crimes punishable in Pennsylvania (sometimes up to TWO years in prison!) that most people probably don’t know exist:

          18 PA.C.S. 7104: Fortune Telling. This statute punishes a number of genie-like acts, including using cards or tokens to predict future events, using charms, spells and necromancy, administering love potions, putting bad luck on a person or animal, and even “consulting the movements of the heavenly bodies.”  There is a reason that spiritual businesses will put up signs that read For Entertainment Purposes Only: otherwise, fortune tellers face up to one year in jail!

          18 PA.C.S. 2904: Interfering with Child Custody. Custody matters are civil, and judges have the ability to sanction/find contempt against parents in Family Court. However, at times custody disputes can be criminal. Any person who knowingly or recklessly takes a child away from the child’s parent’s custody for less than 24 hours and (1) the child is subject to a valid custody order; (2) the person has some form of custody under said order, and (3) the parties do not leave the state, commits a Second Degree Misdemeanor. Under this scenario, a parent who disregards a custody order and fails to return a child to the other parent can face charges, including two years in prison and hefty fines.

          18 PA.C.S. 5103: Unlawfully Listening to Jury Deliberations. In keeping with the sanctity of jury secrecy, Pennsylvania punishes any person who, in any manner and for any purpose, intentionally listens to jury deliberations. With the manner and purpose irrelevant, this “curiosity killed the cat” crime is punishable by up to one year in jail.

          18 PA.C.S. 3015: Nonpayment of wages. A defense to prostitution is trafficking or sexual coercion. But, that doesn’t mean a victim can’t get paid for what he or she is owed. This law specifically prohibits human traffickers from not paying their trafficked victims. In this context, a pimp who fails to pay his or her prostitute for “services” rendered commits a Third Degree misdemeanor if the amount owed is less than $2,000 or a Third Degree Felony if the amount owed is more than $2,000.

          18 PA.C.S. 7509: Furnishing Drug Free Urine. Got a probation meeting coming up and need to get a clean sample? Selling, giving, or dealing in clean urine, and subsequently attempting to pass off clean urine during a drug test, is a Third Degree Misdemeanor in Pennsylvania. The statute doesn’t limit punishment of clean urine sellers/users to criminal contexts only – thus, whether the urine is used to avoid probation violation or employment eligibility, it’s illegal.

          18 PA.C.S. 5904: Public Exhibition of Insane or Deformed Person. Although circus freaks were a popular source of entertainment in the past and states elsewhere, they’re likely criminal in Pennsylvania. Any person who publicly exhibits “an insane, idiotic or deformed person, or imbecile” for money or other reward is guilty of a Second Degree Misdemeanor. The terms “insane, idiotic and imbecile” are not defined under the law, and to this day remain open to interpretation.

          18 PA.C.S. 6708: Failing to Return Library Book. Pennsylvania takes its education seriously – serious enough that any person who retains public library material after being given written notice commits a summary offense. Since a summary offense is punishable up to 90 days in jail, any person willfully committing this offense better chose a book they literally can’t put down!

          18 PA.C.S. 3303: Failing to Prevent a Catastrophe. Negligent and reckless acts by landlords, construction companies, business owners, nightclubs and homeowners are some of the most litigious areas of law. These acts can also be punished criminally. A person who recklessly fails to take reasonable measures to prevent or mitigate a catastrophe is guilty of a Second Degree Misdemeanor. A common example includes business owners blatantly disregarding dangerous structural or other defects on their premises. Thus, while a business owner knows he can face civil litigation, he probably doesn’t know he can face criminal prosecution as well.

          18 PA.C.S. 6503: Posting Advertisements on Property of Another. If you ever noticed utility poles, highway fences or bridges plastered with stickers, ads, or other signs, you’ve likely witnessed a crime. In Pennsylvania, it is illegal to post, paint, stick or stamp an ad, sign, card or poster on any property belonging to the state, local government or property of another without permission, and is punishable as a summary offense. While trying to promote a local art show or selling your bike, if you want to avoid being a criminal, don’t even think about posting without permission!

          As you can see, fortune tellers and library thieves are not too welcomed into the state of Pennsylvania. Although these crimes are rarely prosecuted, they are still illegal acts. Until the Legislature repeals or the Courts strike down these statutes, the law remains. In the surprising, yet still possible, event you or a relative have been arrested for any of the above, be sure to consult an attorney at Skinner Law Firm to discuss your options. Contact us today at (610) 436-1410 or (610) 565-3320.

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How Alcohol and Drugs Can Affect Your Immigration Status

There are three major ways that alcohol and drugs can affect immigration status: substance abuse, criminal convictions, and criminal association. Not only can drugs and alcohol prevent you from getting a green card, but they can make you deportable. It is important to note that everyone’s case is different. In some cases, you do not need a conviction to be considered inadmissible or deportable. In other cases, a criminal defendant can plead guilty to a felony drug trafficking charge and preserve his or her immigration options. Below are a few common ways that drugs and alcohol can affect immigration status.

 

Drug Addict or Alcoholic

Under 8 U.S.C. 1182, any alien who is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

(iv) … to be a drug abuser or addict,

is inadmissible.

If an immigration applicant admits to doing drugs or drinking to a point of self-harm, he or she may not be able to obtain a green card or enter the United States. When a USCIS or consular officer suspects an applicant is a drug addict or harmful alcoholic, the officer will likely refer the applicant to a civil surgeon for a medical review. If the civil surgeon concludes the applicant is a drug addict or harmful alcoholic, any application for a green card or visa will be denied. In addition, even though alcoholism isn’t an explicit inadmissibility ground, alcoholism tends to lead to harmful behavior that is. It is important to never freely admit to or discuss any drug use or any problematic alcohol use with anyone.

Even if a person is already in the United States, he or she could be deported. Under 8 U.S.C. 1227(a)(2)(B)(ii), “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” Although there are few ways that ICE agents can prove a person is a drug addict, people aren’t always the smartest when it comes to addiction. ICE agents can come across evidence of drug addiction through a person’s posting on social media or admission through Drug Court programs.

 

Criminal Convictions

Under 8 U.S.C. 1182, a person is inadmissible if he or she is convicted of, admits committing, or admits committing the essential elements of a violation of (or a conspiracy or attempt to violate) any law relating to a controlled substance. There is a time-consuming waiver available only for cases involving less than 30 grams of marijuana.

There are a few major concerns with this ground of inadmissibility. First, a person does not need a conviction to be found inadmissible! Simply “admitting” to possessing drugs is grounds for inadmissibility. Second, the term “controlled substances” relates to federal, not state, law. Even though marijuana is now legal in a few states and countries around the world, it is still a Schedule I Controlled Substance under federal law. Third, this ground of inadmissibility involves actions “relating” to controlled substances; anything from drug paraphernalia to trafficking to drug money laundering could have severe immigration consequences.

For deportations, the law is somewhat different. In order to be deported for a drug-related crime, a person must have a conviction for an offense relating to a controlled substance as defined under federal law. There is also an exception for a single conviction involving possessing for one’s own use of 30 grams or less of marijuana. Convictions “relating to” a controlled substance include possession, trafficking, misbranding, adultering or selling. In addition, different states have different types of diversionary programs that may actually qualify as “convictions” under immigration law. Never assume that a dismissed or expunged charge won’t have lasting immigration consequences.

 

Drug Association

In some cases, a person does not need to admit to a crime or have a conviction to be considered inadmissible. One of the harshest provisions under immigration law relates to noncitizens and drug trafficking. The law punishes anyone even associated with drug trafficking activity or financial gains from either obtaining a visa or green card, or entering the United States at all.

Under 8 U.S.C. 1182(a)(2)(C), Any alien who the consular officer or the Attorney General knows or has reason to believe

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,

is inadmissible.

Thus, consular officers only need a “reason to believe” an immigration applicant is associated with drug activity or profits. Under this provision, immigration officials can use all sorts of evidence, including evidence from a criminal case that was dismissed, withdrawn or from which a noncitizen was found not guilty. The type of evidence is endless: family members’ association with drug gangs, financial records, fancy and high priced purchases, etc. This provision of the law punishes family members who turn a blind eye to drug trafficking activity.

 

Because of this highly complex area of law, it is important to retain the expertise of an immigration attorney. The attorneys at Skinner Law Firm can assist you if you have be charged with, accused of, or refused a visa anything relating to a controlled substance. Even if you cannot avoid a conviction, a carefully crafted case can preserve your immigration benefits and your future. Contact us today for a consultation.

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Pennsylvania’s New Record Sealing Law: What You Need to Know if You Have a Criminal Record

 

erase

On February 16, 2016, Governor Wolf signed into law Senate Bill 166, an expansion to Pennsylvania’s dissemination of criminal information laws. Although the law has been widely described as an expansion of the current expungement law, it is, rather, an entirely new statute. The new statute takes effect on November 14, 2016.

Under the new statute, 18 Pa.C.S. 9122.1, an individual with a certain criminal record may petition the court for an Order for “limited access” (i.e. sealing).

If granted, no criminal justice agency (including police stations, jail and prison facilities, probation departments and district attorneys’ offices) may disseminate information about the individual’s criminal conviction to anyone or any agency.

With some exceptions, most misdemeanors of the second and third degree will be expungeable when the new law takes effect in October of 2016.

Another benefit under the new law is that individuals can successfully refuse to disclose information about the sealed case to non-criminal justice agencies. This includes employment applications, which was a major factor pushing the bill into law.

Sealing an Criminal Record in Chester County or Delaware County, PA

Call the attorneys at the Skinner Law Firm if you are interested in sealing or expunging a criminal record in Chester County or Delaware County, PA.

We also help clients seal or expunge a record throughout the surrounding areas of Pennsylvania. Call us to speak directly with an attorney to discuss your case.

With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), we are here to assist you in moving past your criminal record.


Who is Eligible to Seal a Record under Pennsylvania Law?

A person who has a conviction for a second degree misdemeanor, third degree misdemeanor or ungraded misdemeanor and who has been free of arrest or prosecution for the past 10 years is eligible.

The 10 year wait period does not start until completion of probation, parole or other supervision. Anyone who has ever been convicted of one of the following offenses is not eligible:

  • Ungraded misdemeanor punishable by more than two years;
  • Four of more misdemeanor offenses;
  • Sexual Intercourse with an Animal;
  • Obstruction of Child Abuse Case;
  • A conviction that requires Meghan’s Law (sex offender) registration;
  • Retaliation Against a Witness;
  • Intimidation of Witnesses;
  • Impersonating a Public Servant; or
  • A second degree misdemeanor for Simple Assault (M2).

What convictions can be sealed in Pennsylvania?

As mentioned above, certain convictions cannot be sealed even if they are second, third or ungraded misdemeanors. The law also clearly disqualifies simple assault convictions unless it was a third or ungraded misdemeanor.

Thus, common offenses that may be sealed under the new law include first offense DUI, possession of marijuana, possession of drug paraphernalia, and certain theft, trespass and firearm offenses.


What is the procedure to seal the record?

A person who is eligible files a petition in the Court of Common Pleas in the county where the guilty plea or verdict took place. The District Attorney’s Office has thirty (30) days to consent or object.

If the District Attorney’s Office objects, there will be a hearing before a judge. If the District Attorney’s Office does not object, the Order will be granted and notice of the sealed Order will be submitted to the appropriate agencies.

It is important to note that there are exceptions to the law. For example, legal, medical, teaching or nursing agencies that issue professional occupational licenses may request criminal information from a sealed case.

In addition, if there is an investigation by a county children, youth and family agency or Department of Public Welfare, criminal information may be requested.

It is important to remember that the purpose of the law is not to expunge or erase a criminal record. The purpose of the law is to seal a case from public access after successfully showing years of law-abiding behavior.


Additional Resources

Section 9122. Expungement in Pennsylvania – Visit the website of the Pennsylvania General Assembly to read more about Title 18, on expungement. Find the specific proceedings subject to expunction including criminal history record information. Also find a list of offenses with a prohibition on expunction after the defendant was placed on Accelerated Rehabilitation Disposition (ARD) when the victim was under 18 years of age.

§ 9122.1 Order for limited access – The new law for sealing records in Pennsylvania provides, in part:

(a) General rule.—The following shall apply:

(1) Notwithstanding any other provision of this chapter, upon petition of a person who has been free of arrest or prosecution following conviction or final release from confinement or supervision, whichever is later, for a period of 10 years, the court of common pleas in the jurisdiction where the conviction occurred may enter an order that criminal history record information maintained by any criminal justice agency pertaining to a conviction for a misdemeanor of the second degree, a misdemeanor of the third degree or an ungraded offense which carries a maximum penalty of no more than two years be disseminated only to a criminal justice agency or a government agency as provided in section 9121(b.1) and (b.2) (relating to general regulations).

(2) Except when requested or required by a criminal justice agency, or by and for the official use of a government agency described in section 9121(b.1) or 9124(a) (relating to use of records by licensing agencies), no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of a court order for limited access granted under this section…..

…..(c) Notice to district attorney.—The court shall provide notice of the filing of a petition under subsection (a) to the district attorney within 10 days. Within 30 days of receipt of notice, the district attorney may file objections to the petition. If no objection is timely filed, the court may grant the petition without further hearing if the requirements of this section have been met.

(d) Notice to central repository.—Notice of an order for limited access shall promptly be submitted to the central repository which shall notify all criminal justice agencies which have received criminal history record information related to such conviction that access to such criminal history record has been limited by order of the court.

Expungement of Juvenile Record in Chester County, PA – Visit the website of Chester County, PA, to learn more about the expungement process for a juvenile record in Chester County, PA. Find information on the process to legally erase a juvenile record or seal the record making it permanently unavailable to the public. Find out more about when the Juvenile Probation Department will expunge any information it creates and any information it receives from outside sources. Also find information on when the State and Local Police will expunge arrest records and records of juveniles’ dispositions upon receipt of a certified court order from the petitioner.


What should I do if I am eligible?

If you are eligible under the new law to seal your criminal case, contact an attorney at Skinner Law Firm to discuss your options further. With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), our attorneys are here to assist you in moving past your criminal record.

Call us to seal or expunge your criminal record in West Chester for Chester County or in Media for Delaware County, PA.

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Why You Shouldn’t Drive If Your Driver’s License is Suspended as a Result of a DUI or DUI Related Offense in Pennsylvania.

Police Arrest

            Most times, when someone is admitted into the Accelerated Rehabilitative Disposition (ARD) Program, or pleads guilty to Driving Under the Influence (DUI), he or she faces a mandatory driver’s license suspension. The range of suspension is based on many factors, including criminal record, blood alcohol level (BAC), and more.  Even without a valid license, some people take the risk of driving while their license is suspended. While this may seem like an innocent act, the consequences of driving under suspension for a DUI, are severe.

            This type of traffic offense is often referred to as a 1543(b) – Driving While Operating Privilege is Suspended or Revoked citation, because that is the Section it can be found in under the Pennsylvania Vehicle Code. The legislative purpose behind Section 1543(b) is general deterrence: if you are caught driving a vehicle while your license is suspended for ARD or DUI, you must face consequences, including a mandatory jail sentence. Otherwise, the judicial system would have no check in place to monitor suspended drivers. It is important to note that Section 1543(b) not only applies to ARD and DUI suspensions, but any DUI-related suspensions.  Below are a few examples where DUI-related suspensions come into play.

Consequences of Driving During the ARD Driver’s License Suspension

            If you were admitted into the Chester County or Delaware County ARD program for a DUI, your driver’s license was likely suspended for 30, 60 or 90 days depending upon your BAC. You cannot drive until PennDOT physically sends your driver’s license back to you. If you are caught driving a vehicle before your driving privileges are restored, you will face a mandatory minimum of 60 days in jail.  If you were caught driving with a BAC of .02% or more, you will face a mandatory minimum of 90 days in jail. In addition, you will likely be removed from the ARD program and prosecuted on the original DUI offense.  If convicted of DUI, you will likely face an additional license suspension.

Failure to Restore Your Driving Privileges After a DUI Driver’s License Suspension

            If your Pennsylvania driver’s license is suspended as a result of a DUI, you cannot drive a vehicle until you have completed the steps to restore your driving privileges. This includes paying a restoration fee and waiting for PennDOT to process your restoration. Consider the following example of failure to restore your driver’s license after a DUI conviction:

            Maria pleads guilty to DUI (High Tier). She serves 48 hours in jail and her license is suspended for 1 year.  However, after serving the 1 year suspension, she mistakenly assumes her license is automatically restored, and begins driving again. Almost 2 years after she pled guilty to DUI, she is stopped for speeding and given a 1543(b) citation.

Day                            Offense                       License Suspension                 Minimum Jail Time

1                                  DUI                             1 year                                                  48 hours

720                           1543(b)                       1 year                                                 60 days

            Maria may have thought she was in the clear to drive, but this is not the case. Even though she served the 1 year license suspension, her license was still suspended because she never made the effort to restore her driving privileges. Thus, she remained indefinitely suspended – DUI related. If she is found guilty of the 1543(b) citation, she will have to serve at least 60 days in jail, and her license will be suspended for an additional 1 year. She could still be cited for a 1543(b) citation until she makes the effort to actually restore her license.

Driver’s License Suspension Based Upon Refusal to Submit to Blood/Breath Test

            When you drive on the roads of Pennsylvania, you are agreeing to “implied consent” – meaning that if you are investigated for DUI, you agree to provide a chemical sample of your blood, breath or urine. If you refuse, your license will be suspended for at least one year, even if you are not convicted of the DUI. Consider the following example of how a DUI refusal can escalate:

            Ron is arrested for DUI, but refuses to provide a chemical sample. He pleads guilty to DUI and his license is suspended for 1 year. Because he refused, his license is suspended for an additional 1 year. He mistakenly thinks both suspensions run concurrently. After serving over one year of a suspended license, he is caught drunk driving. He is arrested for another DUI (BAC is .17%) and he is cited for 1543(b), because he was driving on a DUI-related suspended license. He pleads guilty to a second offense DUI (Highest Tier) and 1543(b) – Driving on a Suspended License DUI Related.

Day                             Offense                       License Suspension                 Minimum Jail Time

1                                  DUI                               1 year                                                   72 hours

1                                  Refusal                        1 year

724                            DUI – Highest          18 months                                        90 days

724                            1543(b)                         1 year                                               90 days

            Ron’s situation went from worse to unthinkable. His license was still suspended at the time of his second DUI arrest because he refused to provide a chemical sample. As a second offense with a BAC of .17%, he is sentenced to an 18 months license suspension and 90 days in jail. However, that’s not all. Because his license was suspended due to a DUI related offense (refusal), and his BAC was more than .02%, he faces an additional 1 year license suspension and an additional minimum of 90 days in jail. In total, he will serve 4 ½ years of a suspended license and over half a year of incarceration.

Out of State DUI Convictions and 1543(b) Citations

            When you are cited for a 1543(b) citation, you are not arrested and immediately taken to jail. As a result, some people consider these traffic offenses as minor and unimportant. All 1543(b) citations carry some jail time and license suspension, and these penalties increase if caught driving with more than .02% of a blood alcohol level. Consider the following situation where 1543(b) citations were not taken seriously:

            Eric was busted for DUI in Delaware County, PA and pled guilty. His BAC was so low that his license was not suspended. Later, he is convicted of DUI in Townsend, Maryland. As a result, PennDOT suspends his PA license for one year. A few weeks later, he is caught driving with a BAC of .03%. Although he was not arrested, he was cited for 1543(b)(1)(1.1.)(i). A few months after that, despite being careful during happy hour, Eric is caught driving again, with a BAC of .021%, and cited for a second offense 1543(b)(1)(1.1.)(i). He pleads guilty to both citations.

Day                             Offense                       License Suspension                 Minimum Jail Time

1                                   DUI

365                              DUI – MD                   1 year

390                              1543(b)                        1 year                                                  90 days

450                              1543(b) – 2nd            1 year                                                 6 months

            Without knowing the consequences, Eric pled guilty to an out of state DUI. This is also considered a DUI-related offense under Pennsylvania law, so PennDOT suspended his PA license. When he was caught driving with a BAC of .02%, he was cited under the most severe provisions of Section 1543(b), and both of the punishments increased. His first 1543(b)(1)(1.1.)(i) conviction carried a minimum of 90 days in jail and an additional one year license suspension. His second 1543(b)(1)(1.1.)(i) conviction was a misdemeanor and carried at least 6 months in jail and an additional one year license suspension. Within a span of two years, he will serve 9 months in jail.

Contact an Attorney Today

            Each of the above scenarios has different consequences, but the message is the same: driving on a suspended license – DUI related is a serious offense that will put you in jail and suspend your license for a long time. If you are cited for a 1543(b) traffic offense, it is very important to call an attorney. Considering the specific facts of your case, there may be valid defenses to the charges, or possibilities to limit the amount of jail time involved. The attorneys at Skinner Law Firm have dealt with a variety of scenarios that are punishable under Section 1543(b), including DUI, ARD, refusal and other DUI-related offenses. Call us today to discuss your options.

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