PA Superior Court: Jail Time Required After Third Conviction for Driving on DUI Suspended License

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rollins, holding that a defendant must be sentenced to six months’ incarceration for a third conviction for driving on a DUI suspended license under 75 Pa.C.S. § 1543(b). The appellate courts had previously concluded that trial courts could not constitutionally sentence defendants to jail time for the first two convictions because the penalty sections of the statutes do not contain maximum possible sentences, making the statute unconstitutionally vague for the first two offenses. The third offense, however, is graded as a misdemeanor of the third degree, so a court may sentence a defendant to jail.

The Facts of Rollins

The defendant had his driver’s license suspended due to a DUI conviction. He was charged with driving on a DUI suspended license in violation of 75 Pa.C.S. § 1543(b) three times. He was convicted for the first two, but the case is not clear as to what sentence he received. In 2021, he was arrested and charged with the offense for a third time. He pleaded guilty, but he argued that he could not receive jail time because the statute was unconstitutionally vague. The trial court, however, sentenced him to six to twelve months’ incarceration. The statute provides:

(iii)  A third or subsequent violation of this paragraph shall constitute a misdemeanor of the third degree and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

The statute itself does not specify the maximum penalty, so the defendant argued that he could not receive jail time. Two appellate cases arguably supported his position. Specifically, in Commonwealth v. Eid, the defendant was convicted of the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1.1)(i), which applied when an individual was found to be driving with a suspended or revoked license and refused a breath test. Section 1543(b)(1.1)(i) provided that an individual found in violation of this section “shall, upon first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.” Eid was sentenced to a term of ninety days to six months’ imprisonment as well as a $1,000 fine.

On appeal, the Pennsylvania Supreme Court found that the statute was “unconstitutionally vague and inoperable” as the provision failed to provide a maximum term of incarceration. The Supreme Court affirmed Eid’s conviction and fine, but it vacated the imprisonment term as it declined to infer a maximum sentence, which would have forced the Court to “engage in sheer speculation as to which sentence the General Assembly intended.”

Shortly thereafter, in Commonwealth v. Jackson, the defendant pleaded guilty to the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1)(ii), which applied when an individual was found to have a second DWS violation. Section 1543(b)(1)(ii) provided “[a] second violation of this [crime] shall constitute a summary offense and, upon conviction [ ], a person shall be sentenced to pay a fine of $1,000[.00] and to undergo imprisonment for not less than 90 days.”

The Superior Court applied Eid and found that the section was unconstitutionally vague and inoperable because it contained identical language to that in Eid. The statute provided a mandatory minimum, but it provided no maximum, and the court could not guess as to what maximum the legislature intended. Therefore, the Jackson Court affirmed Jackson’s conviction and the imposition of the fine, but it vacated the house arrest portion of the sentence.

The Superior Court’s Decision

Here, the Superior Court affirmed the judgment of sentence and rejected the defendant’s argument. The Court found that the statute properly provides both a minimum and a maximum. It states that the minimum sentence shall be six months’ incarceration, and it also defines the statute as a third degree misdemeanor. The crime code provides that third degree misdemeanors may be punished by up to a year in jail, and so the absence of the specific maximum in the statute itself does not make the statute unconstitutionally vague because the offense is defined as a third degree misdemeanor. Therefore, the Court found that the section was not like the flawed sections in Eid and Jackson that apply to first and second offenses. Barring any successful additional appeals, the defendant will have to serve the six to twelve month jail sentence.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court Reverses Itself and Finds ARD Counts as Prior Conviction in DUI Cases

Criminal Defense Lawyer Zak Goldstein

An en banc Pennsylvania Superior Court has decided the case of Commonwealth v. Moroz, holding that proof of a prior acceptance of ARD counts as a prior offense for sentencing purposes in DUI cases. Notably, this decision overrules the recent panel decision in Commonwealth v. Chichkin which held that prior acceptance of ARD did not count for recidivist purposes.

Commonwealth v. Moroz - Does ARD Count As a Prior Offense in a DUI Case?

Police arrested the defendant for two DUIs on two separate dates. The defendant then entered the Accelerated Rehabilitative Disposition (ARD) program for his first DUI. The court deferred the defendant’s sentencing on other charges from his second arrest. Before sentencing could occur, the Pennsylvania Superior Court issued its opinion on Chichkin, holding that a DUI offense where ARD was accepted could not be used to impose an increased sentence for subsequent DUI offenses.

During trial, the defendant objected to being sentenced as a recidivist based on his prior ARD offense, citing Chichkin. The Commonwealth argued that if it could prove the first DUI offense beyond a reasonable doubt in an evidentiary hearing at sentencing, then it could establish the second DUI was a second offense even though the defendant had received ARD. The Commonwealth then requested an evidentiary hearing to address whether it could prove the first DUI beyond a reasonable doubt. This request was denied. The trial court held the defendant’s sentencing hearing , and the trial court relied on Chichkin in sentencing the defendant as a first-time offender.

The Commonwealth filed a timely appeal, raising the issues of whether the defendant’s prior acceptance of ARD for his first DUI qualified as a prior offense and whether Chichkin should be overruled.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed relevant case law to make its decision, as well as the DUI gradation statute, Section 3806. Section 3806 specifically mentions that acceptance of ARD constitutes a prior offense. Additionally, other cases such as Commonwealth v. Whalen and Commonwealth v. Scheinert demonstrate that a defendant must voluntarily agree to ARD, indicate he understands the proceedings, and agree to comply with any conditions imposed by the court. The defendant is also presumed to be aware of Section 3806 when accepting ARD. The Superior Court acknowledged that acceptance of ARD does not contain the same procedural safeguards of a conviction following a trial, but it deemed the safeguards of ARD sufficient due to the “intensive process” of the ARD program. Additionally, Whalen states that ARD can be equated with a conviction only under certain circumstances, such as sentencing on subsequent convictions.

Therefore, the Superior Court overruled Chichkin, vacating the defendant’s judgement of sentence, and remanding for further proceedings. The defendant will now face a significantly increased mandatory minimum when he is sentenced as a second-time offender barring further appeals. The Pennsylvania Supreme Court has accepted review of this issue, so this will not be the final word on whether ARD counts as a prior offense in DUI cases.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Supreme Court: Police Often Must Get Search Warrant to Obtain Homicide-by-DUI Defendant's Blood from Hospital

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones-Williams, holding that the defendant’s blood was illegally seized for drug testing because the police obtained it from a hospital without getting a search warrant. The Commonwealth had attempted to use various statutes and theories to justify the warrantless seizure, but because no exigent circumstances were present which would justify dispensing with the warrant requirement, the Supreme Court ruled that the police violated the defendant’s constitutional rights. The court therefore suppressed the blood results.

Commonwealth v. Jones-Williams

The defendant drove his car at about two miles per hour over train tracks, where a train collided with his vehicle. The train pushed it for a quarter of a mile before it stopped moving. The defendant and his daughter were transported to a hospital, while his fiancée who had also been in the car was pronounced dead at the scene.

Lieutenant Steven Lutz, the officer in charge, spoke to several individuals who explained that the defendant’s car smelled like burnt marijuana. Lieutenant Lutz told Sergeant Keith Farren to interview the defendant and obtain a legal blood draw. A legal blood draw requires consent or a search warrant from a subject before being seized for testing. Sergeant Farren determined that the defendant was not conscious enough to give consent, as he had been drifting in and out of consciousness. This would often justify a warrantless search under the Supreme Court’s case law, but prior to obtaining the blood, the officer learned that the hospital had already drawn the defendant’s blood.

Sergeant Farren completed paperwork authorizing the defendant’s blood to be tested, and it was revealed that the defendant’s blood contained Delta-9 THC, an ingredient in marijuana. The defendant was arrested and charged with homicide by vehicle while driving under the influence, homicide by vehicle, endangering the welfare of a child, recklessly endangering another person, DUI: controlled substance – schedule I, DUI: controlled substance – schedule I, II, or III metabolite, DUI: general impairment, careless driving, careless driving – unintentional death, aggravated assault while DUI, and aggravated assault by vehicle.

The defendant filed an omnibus pre-trial motion to suppress the blood test results, arguing that the police did not have probable cause that he was driving under the influence, that his blood was seized without a warrant, and that Section 3755, which allows the police to obtain blood from a hospital without a warrant, did not justify the seizure. 

Of note, Section 3755 states that if a person who is suspected to be DUI must seek medical treatment, then a physician must take blood samples from the individual and transmit them within 24 hours to the Department of Health or a laboratory for testing. These results then may be released to the individual tested, his attorney, his physician or government officials.

During the suppression hearing, Lieutenant Lutz testified that the defendant’s blood was obtained through a legal blood draw, citing Section 3755. Notably, Sergeant Farren never referenced Section 3755 during his testimony, instead explaining that he attempted to obtain the defendant’s blood through an implied consent form. Both officers acknowledged that they could have obtained a warrant for the defendant’s blood but did not do so.

The trial court denied the defendant’s motion to suppress, stating that the blood test results were admissible under the exigent circumstances exception. The defendant’s trial by jury commenced, and the Commonwealth admitted his blood test results. The defendant was found guilty of DUI offenses, homicide by vehicle, endangering the welfare of a child, recklessly endangering another person, aggravated assault while DUI, aggravated assault by vehicle, and careless driving.

The Pennsylvania Superior Court’s Decision

The defendant filed a post-sentence motion challenging the weight of the evidence, but this motion was denied. He then appealed to the Superior Court, arguing that the trial court erred in denying his first motion to suppress evidence. He argued that the Commonwealth did not comply with Section 3755, that even if the Commonwealth had complied with Section 3755, this compliance alone is insufficient to overcome the warrant requirement, and that there were no exigent circumstances to justify a warrantless search.

In the trial court’s Rule 1925(a) opinion, the court concluded that the original finding of exigency was erroneous because there was no urgent need for Sergeant Farren to dispense with obtaining a search warrant for the seizure of the defendant’s blood test results. The Superior Court agreed with this opinion. As the hospital had already preserved the blood evidence, Sergeant Farren had plenty of time to obtain a warrant. The Superior Court concluded that the defendant’s motion to suppress should have been granted and remanded for a new trial.

The Supreme Court Appeal

The Commonwealth then filed a petition for allowance of appeal to the Pennsylvania Supreme Court to address whether the Superior Court failed to properly apply and follow legal precedent in holding that Section 3755 does not independently support implied consent and whether the Superior Court failed to properly apply and follow the legal precedent from Mitchell v. Wisconsin by finding that exigent circumstances did not exist to support a warrantless testing of the defendant’s blood. The Supreme Court granted allocatur and agreed to hear the appeal.

The Supreme Court ultimately decided with the defendant. The Supreme Court rejected the Commonwealth’s Mitchell argument. In Mitchell, the United States Supreme Court found that exigency almost always exists when the police need to obtain blood from an unconscious defendant because the defendant cannot be asked to consent and any controlled substances in the blood quickly begin to dissipate. Nonetheless, the Commonwealth argued that exigency was established due to probable cause that the defendant was driving under the influence of marijuana, he had to be transported to the hospital, he was not fully conscious, and he was unable to communicate with Sergeant Farren. The Commonwealth further agued that the police could not have applied for a search warrant as they had other duties to attend to regarding the crash and other emergencies.

The defendant argued that the police officers testified that they could have obtained a search warrant during his trial. The seizure occurred after the blood was drawn, meaning the blood had already been preserved and nothing would dissipate, but testing did not occur until three days later, demonstrating a lack of exigency.

The Supreme Court concluded that there was no exigency because there was very little chance that the blood evidence would be destroyed if the officers took time to obtain a search warrant. The blood evidence had been properly preserved in this case.

The Supreme Court also addressed the Commonwealth’s argument about Section 3755 and concluded that the Commonwealth did not adhere to the requirements of the statute. Sergeant Farren did not comply with Section 3755; specifically, in his paperwork to obtain the defendant’s blood, he invoked 75 Pa.S.C.A. 1547. He also sought the defendant out to obtain consent, which is not necessary when invoking Section 3755, and there was no mention during the trial that any emergency room personnel took the defendant’s blood due to adherence to Section 3755. The Supreme Court also vacated the portion of the Superior Court’s holding that Section 3755 was unconstitutional because it determined that Section 3755 did not legally apply to this case. Therefore, the Supreme Court ultimately found that police violated the defendant’s rights and that the blood evidence should be suppressed. It remanded the case for a new trial. Thus, where the hospital has already preserved a suspect’s blood, the police must get a search warrant prior to seizing that blood from the hospital. They may not rely on exigent circumstances to justify a warrantless search.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Pennsylvania Increases Penalties for Multiple Driving Under the Influence Offenses

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Legislature recently enacted a new law which significantly increases the penalty for third and subsequent driving under the influence (“DUI”) offenses. The law, which is nicknamed Deana’s Law, provides that a third DUI within ten years will now be a third degree felony instead of a first degree misdemeanor. Further, a defendant who has three or more DUIs within the prior ten years will face a second degree felony should they again get arrested for DUI rather than what would previously have been a felony of the third degree. Previously, a third degree was a misdemeanor rather than a felony.

This change increases the potential maximum sentence for a DUI conviction because a misdemeanor of the first degree is punishable by up to five years in prison, while a third degree felony conviction may result in seven years in prison and a second degree felon may result in up to ten years’ incarceration.

The law also increases the potential mandatory minimums for a defendant who has to serve sentences for multiple DUI offenses at the same time. The law provides that anyone who has two or more prior offenses must serve a DUI sentence consecutively to any other DUI sentence. This means that if a defendant gets arrested for a third and fourth DUI and is sentenced for both cases, the judge cannot run the two sentences concurrently. Instead, the judge must run them consecutively. As a third degree DUI is normally punishable by a mandatory minimum of one to two years’ incarceration in a state prison, this means that a third and fourth DUI would result in a mandatory two to four years’ incarceration rather than the possibility of a concurrent one to two years’ incarceration on each count.

The law also directs the sentencing commission to provide a sentencing enhancement for a refusal of chemical testing under certain situations. Accordingly, the new law substantially increases the potential penalties for picking up multiple DUI cases in a ten year period.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.