Lowering Blood Alcohol Content Levels for DUI

The National Transportation Safety Board caused a stir recently when it recommended lowering the blood alcohol level for driving under the influence to .05 percent nationwide.  The legal limit in Pennsylvania, as well as in almost every other state, is currently .08 percent.  A recent article from the Pittsburgh Post-Gazette, and other online sources, made some interesting points related to the NTSB’s announcement.

The primary point of the Post -Gazette's article is that even if the change is made, it would not likely be made soon and could perhaps take decades.  Even the Executive Director of the Pennsylvania DUI Association, which supports the lower BAC change, admits that making the change could take "awhile". 

You may remember that back in 2003 the Pennsylvania Legislature reduced the legal limit from .10 to .08.  Pennsylvania was one of the last states to lower its BAC to .08 and it did so only in response to the federal government’s announcement that if it did not do so, it would lose highway funds.  One of the more interesting aspects brought up by the article was that the reduction to .08 percent was the result of a two decade process.  One of the primary concerns back then was that the lower limit would target people having drinks with dinner instead of highly intoxicated drivers who cause the majority of DUI-related accidents. 

The Post-Gazette article also states that while Pennsylvania is reviewing the NTSB’s recommendation, there are no current plans to lower the standard to .05. Moreover, a recent piece by USA Today states that the Governor’s Highway Safety Association supports the current .08 alcohol threshold, citing that when the limit was at .10 it was very difficult to get it lowered to .08.  The Agency also does not expect any state to go to .05 percent.  

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ARD and Expungement of Criminal Record

We have previously written that one of the most important advantages of the Alternative Rehabilitative Disposition option when facing a DUI is that it will not count as a criminal conviction. Further, once you complete the ARD program, you can have the charges completely expunged from your record. Some of my clients ask me why it is so important to have a clean criminal record (and by clean, I mean having no convictions for misdemeanors or felonies). The following is a list of areas to illustrate how having a criminal record can have a negative impact on your life:

Employment

Employers can generally use your criminal record as a determining factor in hiring and firing, and most employers prefer not to employ those with criminal records. An ARD is no guarantee that the charges or conduct which supported the charges will not be a problem in employment, but there is no question that it is preferable to a conviction or guilty plea that cannot be expunged.

Travel

A criminal record can make it difficult for you to travel outside of the country. Some countries refuse to allow entry and others require you to deal with red tape, such as filling out waivers, releases, and other documents, before they will let you enter.

Housing

A criminal record could also affect your ability to live in a particular place or building. This is not the general rule, but some condominium and planned communities have restrictions preventing sales of real property to persons with criminal records.

Credit

A criminal record can also have a negative impact on your credit score. Primarily, the impact comes from the employment problems discussed above limiting or reducing your income, but it could also impact your ability to obtain certain loans, especially those subsidized with government funds.

Privacy

In Pennsylvania, it is possible to research the criminal court docket in almost every criminal case, including ARD cases. Thus, anyone could go online and find a person's case, the charges against the person and the outcome of the case. Most people are not comfortable with that information being so public.

Family

If you are currently going through custody or a divorce proceeding, this could have a negative impact on your position.

There are various other effects a criminal record can have on your life. If you are charged with DUI, consider speaking with an attorney who can guide you through the process of determining whether you qualify for the ARD program.

Matthew Grosh is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Villanova University and practices in a variety of areas including DUI/ARD.

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Lancaster County ARD/DUI Raises Limit for Blood Alcohol Content

I have previously written about the advantages of Accelerated Rehabilitation Disposition (“ARD”) for someone charged with driving under the influence of alcohol. In summary, those primary advantages are: (1) no jail time, (2) a reduced driver’s license suspension and (3) a clean criminal record. There are some requirements DUI defendants must meet to qualify for the ARD program (such as having a valid driver’s license, no prior DUI convictions, etc.) but, until a few years ago, there was no cap on the blood alcohol content (“BAC”) of the Defendant. That changed a few years back in Lancaster County when the District Attorney’s Office barred defendants with a BAC of 0.24% or higher from entry into ARD (the legal limit for a driver’s BAC is 0.08%).

During the last year, the BAC cap for ARD in Lancaster County has been raised to 0.30%. But there is a catch: ARD candidates with a BAC between the old limit, 0.24%, and the new limit, 0.30%, are subject to a review panel, where representatives from the District Attorney’s Office will individually analyze each case to determine if ARD is appropriate. The District Attorney’s Office makes it clear that they reserve the right to refuse a defendant’s admission into ARD based on its own discretion. As a result, those DUI defendants in the review panel’s range will have to make their case to the District’s Attorney’s Office with no guarantee of admission into ARD. Although this change will potentially allow more people to qualify, there is one disadvantage. While the decision from the panel is pending, the defendant will not be able to begin to complete the requirements of the ARD process (i.e. community service, alcohol highway safety classes, etc.), which will push back the date the defendant will finish ARD.

While the best way to avoid these issues is to avoid drinking and driving, it is clear that when faced with DUI charges, it is important to understand the process. As a result, I strongly suggest consulting with a qualified attorney who can properly assess your individual situation and guide you through the necessary court proceedings and the ARD process if you qualify.

Matthew Grosh is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Villanova University and practices in a variety of areas including DUI/ARD.

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Further Thoughts: Driving with a Suspended License relating to DUI/ARD

One important point I convey to my clients who are charged with driving under the influence of alcohol ("DUI") is the severity of the penalties they face if they are caught driving while their licenses are suspended. The penalties include substantial fines ($500-$1,000), jail time (60-90 days) and a 12 month extension of the suspension. Many clients are surprised to hear these are possible consequences and some have even admitted that they may have risked driving during the suspension had I not made them aware.

In a prior post, I wrote about the advantages of an Accelerated Rehabilitation Disposition ("ARD") for someone facing DUI charges.  One of the advantages is that ARD typically results in a shorter driver's license suspension (typically 0-90 days depending on the circumstances) than a DUI conviction (typically 12-18 months). This is important to note because an ARD participant with a mere 60 day license suspension can find themselves with a 12 month extension of their suspended license if they are caught driving during the suspension.   

There are some ways to defend charges of driving while your license is suspended. For example, the Commonwealth must prove beyond a reasonable doubt that the driver received the appropriate notice that their license was suspended. This is not as simple as it sounds, because the Commonwealth cannot merely show that they sent a notice to the driver's address.  Additionally, the Commonwealth must establish that the police had "probable cause" to pull over the driver. In other words, they must have a valid reason for initiating the traffic stop.

Although it is certainly better to refrain from driving on a suspended license, it is clear that those charged with driving while their licenses are suspended for DUI should consult with an attorney to ensure their understanding of the consequences they face and any options that might be available to them.

Matthew Grosh is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Villanova University and practices in a variety of areas including DUI/ARD.

 

 

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ARD Program Lightens Court Caseload

The Lancaster Sunday News has recently been publishing a series of articles about the debate surrounding the efficiency of the Lancaster County criminal court system. On March 18, one article addressed the Accelerated Rehabilitation Disposition program ("ARD") and how it helps to lighten the court's caseload by keeping many cases off of the court calendar. 

The ARD program is generally available for first time DUI offenders although, as the Sunday News article points out, over the past few years, it has become available for some defendants charged with low-level and primarily nonviolent offenses. The program tends to lighten the court calendar because it offers several advantages to people charged with a crime. 

First, ARD allows a defendant to keep a clean criminal record. The successful completion of the program is not considered a criminal conviction, and the charges can be removed from a defendant's criminal record through a process call expungement. This is one of the most attractive advantages to first-time offenders because they will not have to check the "yes" box on job applications and other documents asking if they have ever been convicted of a misdemeanor or felony.

Second, there is generally no jail time involved with the ARD program. As a result, if a defendant is charged with a crime that calls for mandatory jail time, such as driving under the influence of alcohol ("DUI"), the ARD program allows that defendant to avoid jail despite the charges.

Third, if you are charged with DUI, the ARD program will result in a much shorter license suspension. DUI charges normally call for a twelve to eighteen month suspension depending on the defendant's blood alcohol content ("BAC") and whether the defendant has had any prior DUI convictions. On the other hand, and as the Sunday News article points out, ARD will result in a license suspension of zero to ninety days depending on the offender's BAC. In a previous post, I described the stiff penalties, including jail time and significant fines, drivers can face if they are caught driving with a license suspended for DUI or ARD purposes.

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DUI Conviction and Pennsylvania's Ignition Interlock Device Law

In Pennsylvania, people who are convicted of a second or subsequent DUI offense are subject to the Pennsylvania Ignition Interlock Law (the "Law"). This means that after convicted drivers have served their suspension for driving under the influence, the Law requires them to install an ignition interlock device in their motor vehicles.

What Is an Ignition Interlock Device?

An ignition interlock device prohibits individuals under the influence of alcohol from operating a vehicle. Drivers are required to blow into the device before they can start the engine. If the device detects alcohol, it will prevent the vehicle from starting. In addition, throughout the course of their drives, drivers will be prompted to blow into the device periodically to ensure they do not drink alcohol after they start the car. 

A driver subject to the Law typically has his or her ignition interlock device installed after serving a twelve to eighteen month license suspension. Thirty days prior to the end of the suspension, PennDOT will mail the driver a Restoration Requirement Letter, which includes an application for the Ignition Interlock License and a list of ignition interlock providers. There is an application fee that varies depending on the type of driver’s license. 

Licenses for Ignition Interlock Drivers

Ignition Interlock Licenses have a different appearance than a normal driver’s license. They have a red banner and contain the words "limited license." There is also a small red map of Pennsylvania in the lower right hand corner that contains the words “ignition interlock.” The license prohibits the driver from using a vehicle that is not equipped with an approved ignition interlock device. You can see an image of an ignition interlock driver's license on the Pennsylvania Department of Transportation's Ignition Interlock Fact Sheet.

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Does a Criminal Record Disqualify me from an SBA Loan?

I came across an interesting question recently regarding the personal information required for the Small Business Administration's (SBA) loan application process. SBA has a business loan requirement checklist on their website and in the personal information section it states,

"Either as part of the loan application or as a separate document, you will probably be asked to provide some personal background information, including previous addresses, names used, criminal record, educational background, etc."

So let's say you have a criminal record and would like to apply for an SBA loan, are you immediately disqualified for a loan?

To answer this question you first need to understand the role of SBA in lending. SBA directly lends money to small business owners. SBA guarantees loans offered from participating lenders, such as banks and credit unions. The idea is that private lenders will be more likely to provide small business owners a loan if SBA is willing to stand behind a loan and pay if the borrower does not. Both SBA and the lender will have their own requirements to approve you.

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Occupational Limited Licenses and DUI

A common question I receive from clients dealing with a loss of his or her driver's license as the result of a DUI is, "Can I get a temporary license while mine is suspended?" Everyone seems to have a friend or know someone who knows someone, who received a license to travel to and from work or school when that person lost their license because of a DUI. There are however, a lot of misconceptions about an Occupational Limited License (OLL). The bottom line is that whether you qualify depends on your circumstances.  

If your license has been suspended as the result of a DUI and you are anticipating going through or are already in the ARD program, then you DO NOT qualify for an OLL under any circumstances. On the other hand, if you have been charged with a DUI and will not or did not dispose of the charge via the ARD program, then you may qualify for an OLL if:

  • it is your first DUI and the license suspension period is one year. In that case, you can apply for an OLL, but even if you are granted an OLL, it will not be issued until you have served a 60 day license suspension period; or
  • the license suspension is for 18 months and it is your first or second DUI offense in the last 10 years. In that case, you can be granted an OLL but you must first have served 12 of the 18 months of the suspension and you must install the ignition interlock device on your vehicle; or
  • at the time of your arrest, you refused to submit to a chemical test (typically a breathalyzer) then you can qualify for an OLL if your license suspension is 18 months, have no more than one prior DUI in the last 10 years, have served 12 of the 18 months, and have an ignition interlock device installed on your vehicle.
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Why You Need an Attorney When Charged With Driving Under the Influence (DUI)?

During my time as a prosecutor, I was surprised by the number of defendants charged with driving under the influence (DUI) who did not hire an attorney and attempted to represent themselves. Admittedly, some of those defendants ended up with a result that, in my opinion, was substantially similar to the result that would have occurred had they hired an attorney. On the other hand, I saw many defendants stumble into the many pitfalls they could have avoided had they hired an attorney. Thus, anyone charged with driving under the influence should understand the benefits of hiring an attorney experienced in DUI-related law.

Consequences

The punishment for a DUI offense can vary greatly depending on the circumstances. Important factors include:

  • The blood alcohol content of the individual at the time of arrest
  • If the individual has any prior DUI convictions and how long ago those convictions occurred
  • Was there any damages or injuries from a related car crash
  • If the individual is underage
  • The type of substance the individual was under the influence of
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The Effect of DUI & ARD on Pennsylvania Commercial Driver's Licenses

In the past we have written about the penalties and suspensions imposed on standard driver's license holders caused by a DUI conviction, entrance into the ARD program and refusals to submit to blood tests to determine blood alcohol content. This post will address the impact of those events on a Commercial Driver's License ("CDL").

In Pennsylvania, a CDL is required for a driver to operate a commercial motor vehicle. Such vehicles typically include most buses, big-rig trucks and HAZMAT vehicles. There are several classes of CDLs that vary depending on the specific type of commercial vehicle that is going to be driven.

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DUI Penalties: Driving with a Suspended License

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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What Happens if You Refuse a Breathalyzer or Blood Test after a DUI Arrest?

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 1547 of the Pennsylvania Motor Vehicle Code, . Generally, section 1547 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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Does a DUI ARD Count as a Conviction?

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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Mandatory DUI Penalties in Lancaster County

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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ARD in Lancaster County - Qualifying for the Program

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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ARD in Lancaster County - Advantages of the Program for First time DUI Offenders

Almost everyone can tell me what each letter in that acronym DUI stands for: Driving Under the Influence. However, I'm willing to bet that the same is not true for ARD. So, what is ARD and how does it work?

ARD stands for Alternative Rehabilitative Disposition and is a program that is generally available for first time DUI offenders. The program subjects the participant to the equivalent of probation for a period of at least a year. During that time, the participant will, among other things, pay certain fines and fees, attend driving safety classes, complete between 35 and 80 hours of community service and attend any required drug and alcohol counseling. Once those tasks have been successfully completed, the District Attorney will dismiss the DUI charges.

There are three significant advantages to successfully completing ARD:

  1. A clean criminal record - Once the DUI charges are dismissed (with the exception of any summary traffic charges, such as speeding or careless driving, that may have accompanied the DUI charges), they can be expunged from your criminal record. Even if they are not affirmatively expunged, ARD is not considered a criminal conviction. Thus, if any form you are filling out asks if you have ever been convicted of a misdemeanor or felony, you can answer no.
  2. No jail time - Almost all DUI charges require a mandatory minimum of jail time upon conviction. ARD, on the other hand, requires no jail time. However, people who fail to successfully fulfill the ARD requirements, or are charged with another crime while in the program, risk being kicked out of ARD. Once that happens, they will be subject to the standard penalties if convicted.
  3. Reduced license suspension - Almost all DUI charges require a drivers license suspension of at least one year. In ARD, depending on the participant's blood alcohol reading, age or whether there was an accident, the license suspensions are typically 30 or 60 days. It is important to note, however, that driving during either a DUI or ARD suspension is punishable by a minimum of 60 to 90 days in jail and a fine of $1,000.00.

 

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