New Felony DUI Law in PA

On December 22, 2018, Pennsylvania’s new DUI law (Act 153) went into effect. Among other revisions, the new DUI law changes certain DUI offenses from a misdemeanor to a felony. 

Previously, the only DUI felony offenses were DUI accidents involving serious bodily injury (aggravated assault by vehicle) or death (homicide by vehicle, DUI-related). Now, certain repeat DUI offenses will be graded as a felony.

An impetus for the new law are studies which show that (1) about one-quarter of all drivers convicted of DUI are repeat offenders, and (2) a driver with a prior DUI conviction is approximately 50 percent more likely to be involving in a traffic fatality than a person without a prior DUI conviction. The new Pennsylvania DUI felony law is designed to target repeat offenders for greater penalties.

Specifically, a third DUI offense in the “highest tier” — or any fourth or subsequent DUI offense — will be graded as a felony of the third degree. Previously, such offenses were graded as misdemeanors of the first degree. A DUI is considered to be in the “highest tier” when the offender has a blood alcohol content of over 0.16 percent or when the offender “refuses” to take a blood or breath test.

The practical effect of this change is that repeat DUI offenders will face the potential of longer prison sentences and period of supervision (probation and/or parole).

The new law also increases the mandatory minimum sentence for homicide by vehicle cases when the driver is under the influence and has prior DUIs. The minimum sentence increases from 3 to 5 years if a person has one prior DUI and from 3 to 7 years if a person has two or more prior DUIs. And, the new law increases the penalties for repeat DUI offenders who drive while their license is suspended. 

Ignition Interlock for ARD Program Participants

Life just got a little easier for participants in the ARD Program in Pennsylvania.

Effective October 21, 2018, people who are admitted into the Accelerated Rehabilitation Disposition (“ARD”) Program can get an ignition interlock installed in their car so that they can continue to drive.

ARD is a program for first-time, non-violent offenders. Many ARD participants are DUI offenders. For many years, people admitted into the ARD Program have suffered a license suspension (of typically one to three months). In most counties, this suspension began on the day that the person was admitted into the ARD Program (a person would literally hand the license over to the court).

Since October of 2017, the ignition interlock limited license (“IILL”) has been available for people convicted of a DUI. However the IILL was NOT available for ARD participants. Thankfully, this anomaly is no longer the law.

Unfortunately, obtaining an ignition interlock limited license requires some effort. There are a handful of steps — including a fair amount of paperwork — and costs involved. But for many people, it will be worth it to be able to drive to work and care for family and loved ones.

New Law — Possessing Marijuana ≠ License Suspension

It’s About Time — Possessing Marijuana ≠ License Suspension (after a new Pennsylvania law goes into effect in April, 2019) 

For years, a conviction for possessing marijuana (or any other illegal drug) resulted in a license suspension. After a new law goes into effect, this will no longer be the case. The reaction of many people has been “It’s about time!”

On October 27, 2018, Governor Wolf signed into law a bill that will eliminate the automatic license suspension for people convicted of possession of a controlled substance. This new law will take effect after 180 days (that is, in late April of 2019). The new law will also eliminate 90-day license suspension for underage drinking and false identification offenses.

For years, many people had argued that the current law was unfair and made it difficult for people to continue working and caring for their families.

Prior to this new law, a possession offense in Pennsylvania resulted in a six-month license suspension. A second possession offense resulted in a one-year suspension; a third or subsequent offense resulted in a two-year suspension.

The apparent disconnect between possessing marijuana (or any other drug) and suspending a person’s driving license had been challenged in Pennsylvania state courts without success. 

However on January 10, 2018, Equal Justice Under Law (“EJUL”), a civil rights nonprofit organization, filed a federal civil rights lawsuit action asserting that these license suspensions are unconstitutional and unfair. EJUL asserted that these license suspension are “irrational, counterproductive, and discriminatory” and “make successful post-conviction rehabilitation” — such as maintaining employment and performing the everyday tasks of life — “a near impossibility.”

This lawsuit clearly (and successfully) jump-started the effort to eliminate these license suspensions. 

This change will definitely help minor drug possession offenders move on from their convictions and so that they can strive to be productive citizens and positive contributors to society.

Can the Police Automatically Search this Rental Car?

Question: Does an authorized driver of a rental car have a right to object to a police search of the car?

Answer: Yes, in many instances. 

The general rule with police searches is that the police need probable cause to search the interior of a house or car PROVIDED THAT the person involved has a “reasonable expectation of privacy” within that property. That is, a person who owns a car may object to a police search of the car. However someone who unlawfully stole or “borrowed” the car may not be able to object to a search on a theory that he or she had no reasonable expectation of privacy in someone else’s car.

A person who rents a car, and is on the rental agreement as an authorized driver, has a reasonable exception of privacy within that car. This means that the renter may object to a police search.

But what if that authorized driver permits a friend or family member to drive the car? Does that friend or family member have a reasonable expectation of privacy to object to a police search?

This was the issue facing the United States Supreme Court in a recent case. In Byrd v. United States, a lower court held that the driver — who had been granted permission to drive a rental car by the authorized driver — lacked a reasonable exception of privacy in the interior of the vehicle and, accordingly, could not object to a police search. 

The Supreme Court reversed the lower court holding that the mere fact that a driver is not listed on the rental agreement does not, in and of itself, defeat an otherwise reasonable expectation of privacy. 

This means that a person who legally borrows a rental car may be able to object to a police search.

It is important to remember that there are other reasons that the police may be able to search a car (for example, if they have a search warrant or where probable cause exists to believe that the driver has committed a crime). But the Supreme Court holding in Byrd makes it clear that simply because a person is driving a rental car does not give the police an automatic right to search the interior.

Is Pregnant Drug Use Child Abuse?

If a mother uses illegal drugs while pregnant, can this constitute child abuse?

The answer is “Yes”.

The Pennsylvania Superior Court recently decided a case called In Re: L.B. The Superior Court noted that under the Child Protective Services Law in Pennsylvania (the “CPSL”), an embryo or fetus does not meet the definition of “child”. However if a pregnant mother uses illegal drugs which either (i) causes bodily injury to the child after birth or (ii) creates a reasonable likelihood of injury to the child after birth, this can constitute abuse of a child.

In other words, if a pregnant mother uses illegal drugs a court can later find that she was committing child abuse. 

It is important to note that a finding of “child abuse” under the CPSL is not, itself, a crime. However there are specific criminal offenses that could possibly apply (such as, for example, recklessly endangering another person). And, regardless, a finding of “Child Abuse” would result in the mother being included in the ChildLine Registry as a child abuser.

With the opiate problem in Pennsylvania continuing, we may see more new mothers charged with Child Abuse or related crimes in the future. And, if a pregnant mother consumes alcohol which results in injuries to a newborn, she may be similarly held accountable under the law.

Suspended??? My license isn’t suspended!!!

Question: If a motorist is never notified that his license is suspended, can he or she be guilty of driving with a suspended license?

Answer: No. A person must be on notice of a license suspension to be guilty of driving with a suspended license.

The Pennsylvania Superior Court reinforced this concept in the recent case Commonwealth v. Scotty Joe Sales. In this case, the motorist was stopped for speeding. He had a Kentucky commercial driver’s license (“CDL”) that had been suspended. At trial, Sales was convicted of driving with a suspended license.

On appeal, the Pennsylvania Superior Court held that the prosecution had failed to prove that Sales had been notified that his CDL had been suspended.

The Superior Court noted that in Pennsylvania, the prosecution must prove that a motorist received actual notice that his license is suspended to support a conviction.  Prosecutors usually try to prove such notice by showing that PennDOT mailed the motorist a notice to a last known address.

This notice requirement is very important because the penalty for driving under suspension is severe. This is especially true with DUI-related license suspensions.

A person convicted of DUI will usually face a license suspension which can be as much as one year or more. This is true even if the person receives ARD (Accelerated Rehabilitation Disposition) for the DUI.

A person convicted of driving with a license suspended because of a DUI conviction (or admission into the ARD Program) faces a minimum of 60 days in prison and a one year additional loss of license.

Our parents taught us (appropriately) that “honesty is the best policy”. However if a person is caught driving with a suspended license, an even better policy may be to be silent about any knowledge of the suspension and wait to see if the police can prove “actual notice” of the suspension.

Telling the police to “F*** Off” may be unwise, but it’s not necessarily a crime.

Question: Is telling the police to “F*** Off” a crime?

The law is clear that threatening another person with harm is a crime (it can be terroristic threats, simple assault or disorderly conduct).

But what if a person tells someone to “F*** Off” or says something along the lines of “F*** You”? And what if that someone is  a police officer? It is not a nice thing to say. And saying it to the police during a DUI stop or in any other scenario is not a smart thing to do. But is it a crime?

According to a recent Pennsylvania Superior Court case, the answer can be no. If the otherwise offensive statement is not (i) a threat of harm, (ii) unreasonably loud, or (iii) “obscene” (relating to sex in some way), telling someone (including the police) to “F*** Off” is not a crime.

The case is Commonwealth v. Pennix, decided in December of 2017. The defendant, Pennix, was attempting to enter a courthouse through security. She was carrying a personal bag that contained a knife and razor blades. She was asked to remove the bags and became argumentative, saying “F*** you police”, “F*** you I ain’t got time for this” and “I ain’t got no time for you f***ing police”.

Pennix was told to leave the building and, when she refused, was charged with disorderly conduct under the part of the statute that criminalizes “obscene language”.

Pennix was convicted at trial but the Superior Court reversed the conviction, holding that her language (while perhaps inappropriate) can not be considered “obscene”. The court reasoned that for language to be considered “obscene”, it must somehow relate to sexual conduct or material. Since Pennix’s use of the word “F***” was intended to insult and not relate to sex in any way, her conviction for disorderly conduct was reversed.

Of note, a section of the crime of disorderly conduct makes it a crime to make “unreasonable noise” in public. Perhaps if the prosecutor’s theory had been that Pennix made “unreasonable noise” as opposed to using “obscene” language, they may have been able to secure a conviction that would have been upheld on appeal.

DUI Investigations: May prosecutors use the results of blood taken from an unconscious motorist?

Question: Do motorists have a right to refuse a blood test? If the motorist is unconscious, may the withdraw blood without a warrant?

The Pennsylvania Supreme Court recently decided the case of Commonwealth v. Darrell Myers. In Myers, the police encountered the defendant in a stopped vehicle. The police testified that the defendant appeared to be under the influence, smelled of alcohol, had slurred speech and stumbled when exiting the vehicle. There was also a bottle of brandy on the car seat. Accordingly, the police started a DUI investigation.

The defendant was taken to the hospital because the police officer believed he needed medical assistance. The medical staff gave the defendant medication that rendered him unconscious.

The police officer arrived after the defendant had received this medication. The officer testified that the defendant was unconscious and unresponsive. The officer read him his rights with respect to refusing a blood test — the defendant did not respond. The officer then instructed the hospital to involuntarily draw blood from the defendant.

The Supreme Court held that, on these facts, the police were required to obtain either (i) the defendant’s consent to draw blood or (ii) a warrant to withdraw the blood. Because the police obtained neither, the Commonwealth could not use the defendant’s blood alcohol results against him.

And, importantly, PennDOT could not suspend the defendant’s license for “refusing” a chemical test.

The important parts of the Supreme Court’s holdings in Myers may be summarized as follows:

1.  A motorist arrested for DUI — even an unconscious one — has a right to refuse chemical testing.

2.  For a blood test to be constitutionally valid the consent must be given voluntarily (i.e., the person must be aware that he or she has consented to a blood draw). The question of whether the consent is voluntary is evaluated “under the totality of the circumstances” meaning courts will consider all the factors involved in making final determinations regarding voluntariness.

3.  A motorist must be informed about his right to refuse chemical testing before consent can be deemed valid. If the police do not accurately advise a motorist of his rights, the “consent” to withdraw blood will not be considered voluntary.

4.  If someone is unconscious, they cannot give voluntary consent (which, of course, should seem obvious).

5.  With respect to PennDOT license suspensions for “refusing” a chemical test, the inability to give consent does not mean the person has refused. An unconscious person cannot be punished by PennDOT (with a license suspension) for a “refusal” if a person is unable to consent to or refuse a blood test because he is unconscious state.

One important note here. The Supreme Court pointed out that in Myers, there was no evidence that an “exigency” (or emergency situation) existed which could have permitted a warrantless seizure of the defendant’s blood. This necessarily implies that if such an “exigency” did exist, the warrantless draw of the blood could conceivably have been used by the police.

The Ignition Interlock Limited License is Coming!

As of August 25, 2017, PennDOT will be offering Ignition Interlock Limited Licenses (which essentially replace the Occupational Limited Licenses which will no longer exist).

I will summarize the Ignition Interlock Limited License below:

Ignition Interlock Limited License (IILL)

  1. First Offense DUI
  • The motorist is immediately eligible for the IILL. Apply by filing a Petition with PennDOT. PennDOT must approve within 20 days.
  • License cannot be suspended for any other reason.
  • IILL not available for Commercial Vehicles (CDLs).
  • IILL not available for suspensions resulting from Homicide by Vehicle convictions.
  • IILL only required for any vehicle driven by motorists (not all vehicles owned by motorist).
  • Motorist may drive employers owned vehicle without an ignition interlock if within scope of employment (this requires employer’s notarized signature on PennDOT form authorizing employee to drive and stating employer is aware of the employee’s restricted license.
  • People with ARD license suspensions WILL be eligible for the IILL.

B.  Subsequent DUI Offense

  • Ungraded Misdemeanor cases: IILL available after 6 months of 12 month suspensions.
  • Misdemeanor 1 cases: IILL available after 9 months of 18 month suspensions.

C.  Refusal Cases

  • IILL available after 6 months of a 12 month suspension.
  • IILL available after 9 months of an 18 month suspension.

D.  Who Is Not Eligible for the IILL?

A person is ineligible for an Ignition Interlock Limited License if he/she:

  • Was not previously licensed to drive in PA or any other state.
  • Is still required to take a driver’s examination.
  • Has driving privileges already cancelled, revoked or recalled.
  • Has an unsatisfied judgment as a result of a motor vehicle accident.
  • Intends to use IILL for operating a commercial vehicle.
  • Has a license suspension because of a Homicide by Vehicle Conviction.

Driving Under the Influence of Marijuana — The Need for Expert Witnesses

The Pennsylvania Superior Court has recently held that in (most) cases of suspected DUI-marijuana, prosecutors must introduce expert testimony that a person was, indeed, under the influence of marijuana at the time he was driving. That is, a police officer’s conclusions — without more — may not be enough.

The recent case involved involved a driver who was suspected of driving under the influence of marijuana. The police officer testified that she pulled over the defendant because of a non-working taillight. After she started speaking with the driver, she started to suspect that he may be under the influence of marijuana.

The police officer testified at trial that she performed sobriety tests on the defendant and that, in her opinion, his “eyelid and body tremors” were indicative of marijuana use. Based on this conclusion, she arrested him for DUI — marijuana.

At the conclusion of the trial, a jury found the defendant guilty.

The defendant appealed the conviction, raising arguments including the question of whether the officer’s opinion testimony that body tremors and eyelid tremors are indicative of marijuana impairment was improper.

The Superior Court agreed with the defendant and overturned the conviction, holding that the prosecution needed an expert witness (and not simply a police officer) to offer such an opinion at trial.

The Superior Court has held that in driving under the influence of marijuana cases, there is usually “a need for expert testimony”. In fact, the prosecution must produce an expert witness in such cases unless the circumstances are so obvious that there is a “clear connection between marijuana use and impairment.”

The Superior Court has provided an example of when an expert witness would NOT be required. In the case Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010), the court noted that “if a police officer stopped a driver who was driving erratically, and the driver then rolled down his window and greeted the officer through a cloud of marijuana smoke, showing the typical signs of heavy marijuana use, it would be difficult to imagine that expert testimony would be necessary to establish the link between erratic driving and the driver’s marijuana use.”

However unless marijuana use is obvious to a lay person — such as the presence of a “cloud of marijuana smoke” — prosecutors can not simply produce the testimony of a police officer to conclude that a person is under the influence of marijuana.

Rather, prosecutors will need an expert witness.