Lancaster Law Blog : Lancaster PA Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Pennsylvania : Lancaster's Legal Link

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Much has been written about the physical dangers of driving under the influence. Additionally, in previous blog posts we have discussed the legal penalties DUI charges can bring, such as jail time, expensive fines and lengthy drivers license suspensions. As if you needed another reason to be wary, I've got one for you: stiff penalties for driving while your license is suspended. 

Section 1543(b) of the Pennsylvania Motor Vehicle Code states that if the drivers license of a person driving a motor vehicle has been suspended as a result of DUI or DUI related charges (more on this later), such driver shall be fined $500 and serve at least 60 days in jail upon conviction. However, if that driver has a blood alcohol content ("BAC") of .02% (much lower than the standard DUI BAC threshold of .08%) then the penalties are increased to a $1000 fine and a minimum of 90 days in jail. Repeat offenses of the .02% BAC rule will lead to significant increases in fines and jail time. 

Moreover, there are a few wrinkles in the law that make section 1543(b) applicable in more situations than you might think. First, section 1543(b) applies to license suspensions arising from acceptance into ARD, convictions of driving under the influence of a controlled substance, and refusals of breathalyzer and other BAC tests.

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In a previous blog post, I addressed how in cases of driving under the influence, the blood alcohol content ("BAC") of the offender affects the severity of the sentences. Clearly, obtaining an accurate measurement of BAC is very important to law enforcement officials. As a result, after someone is arrested for DUI and transported to a hospital or police station, breathalyzer or blood tests are administered to specifically determine the suspect's BAC. Over the years many people have asked me if they can simply refuse to submit to those tests. Surprisingly, you can in fact refuse to take such a test. However, if you do, your driver's license will be suspended for at least one year and you will subject yourself to further possible disadvantages.

The suspension arises from the so-called "Implied Consent" law, which is found in section 1543 of the Pennsylvania Motor Vehicle Code, . Generally, section 1543 states that anyone who ". . . drives. . . 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 [BAC] . . . if a police officer has reasonable grounds to believe the person . . ." is under the influence of alcohol or a controlled substance. More simply stated, in the eyes of the law, anyone driving a vehicle in Pennsylvania has already implicitly consented to BAC testing. Refusals to submit to BAC tests will result in a license suspension of at least one year. Moreover, such suspension will be in addition to any suspension that arises from the DUI charges themselves if a conviction occurs.

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One of the questions I am frequently asked by nearly every client who seeks assistance with the ARD Program following a DUI arrest is, “Will my completion of the ARD Program count as a conviction?” The answer . . . it depends.

With respect to job applications submitted to potential employers, many employers ask on a job application whether or not the applicant has been convicted of a felony or misdemeanor in their lifetime, or within a certain number of years from the date of application. In this context, if a person has successfully completed the ARD Program, they may answer, “no” to this question. ARD in Pennsylvania is not considered a conviction, but is, rather, an alternative means of disposition for a first DUI offense. It is offered as an opportunity for first time offenders to avoid serving a jail sentence and avoid having a conviction. 

A person who has successfully completed the ARD program is eligible to have the charge expunged from his or her record, which would guarantee that a typical employer running a background check would have no information pertaining to the charge. This is not to say that you should not be open and honest with a potential employer, but when asked if you have been convicted of a crime, you can confidently say no.   

So how does your ARD count as a conviction? Successful completion of the ARD Program does count as a conviction for purposes of subsequent DUI offenses. PennDOT and other state and local police departments retain information with regard to persons who successfully complete the ARD Program. This information is retained because, while an ARD may not be a conviction, it does count as a first offense for sentencing purposes if a person is arrested for a subsequent DUI offense within a period of ten (10) years after the first “conviction.” For an additional explanation on the DUI penalties, click here.

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Early in 2004, the Pennsylvania DUI laws were given a major overhaul, including significant changes to the penalties imposed. While the old laws differentiated penalties depending on whether offenders had prior DUI convictions, they did not take into account the blood alcohol content (BAC) of the offender. The new laws changed that, creating a somewhat complicated matrix using both factors. In addition, the lowest BAC to invoke a DUI charge was lowered from .10% to .08%. Alcohol affects everyone differently understanding how quickly drinking alcohol affects your BAC can help you prevent a DUI charge.

If someone is charged with DUI, their first step should be to determine if they qualify for ARD (Alternative Rehabilitative Disposition) which will allow them to avoid many of the mandatory penalties. 

Once it has been determined that ARD is not an option, the next step will be to establish where on the sentencing matrix the offender would fall if convicted. The sentencing guidelines first separate DUI offenses into three tiers that are primarily based on the BAC of the offender:

• Tier One, known as "general impairment BAC", is applied where the BAC is at least .08% and no greater than .099% and no accident involved; 
• Tier Two, "High Rate BAC", is applied where the BAC is at least .10% and no greater than .159%, where a minor is charged, where there was an accident and the BAC would have been in the Tier One category, or where a commercial or school vehicle was being driven;
• Tier Three, "Highest Rate BAC", is applied where the BAC is equal to or greater than .16%, where a controlled substance such as marijuana or cocaine is also detected, or where a driver refused to take a BAC test.

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In my previous post, ARD in Lancaster County - Advantages of the Program for First Time DUI Offenders, I discussed the benefits of the ARD program. But, in order to take advantage of the program, the applicant must qualify. Applicants will not qualify for ARD if any one of the following is true:

• the applicant has a prior DUI conviction or has been accepted into the ARD program within the last 10 years from the date of the current offense, or the applicant has more than one prior DUI or ARD
• there was an accident in which someone was killed or seriously injured
• there was a passenger under 14 years of age in applicant's car
• the applicant's license was not valid or not in good standing
• the applicant had no or inadequate automobile insurance
• the District Attorney determines that the applicant has an extensive record of driving violations (there is some subjectivity to this factor)
• the applicant's blood alcohol content was .24% or higher

In addition, if the applicant's blood alcohol content is unknown because they refused the BAC test or their actions were deemed a refusal of the test, they must agree to not file or discontinue any appeal of the resulting license suspension to PennDOT.

In some limited cases, exceptions can be made. On those borderline cases, the Lancaster County District Attorney's Office periodically conducts an ARD panel in which applicants and/or their attorneys can present their cases. However, there is no guarantee of the outcome.

It should be noted that there are many strict time limitations and requirements that need to be met when applying for ARD. Some of the initial requirements must be met within 30 days of the charges being filed. The risks of being denied ARD for failing to meet those requirements justify using an attorney to help guide you through this process. 

Finally, despite the advantages ARD provides, please let me state for the record that the best way to avoid DUI charges is to avoid drinking and driving altogether. Please click here for some statistics on the dangers of drinking and driving.

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