PA Superior Court Issues Gentle Reminder That Courts May Not Punish Defendants For Being Poor

Can a judge punish a DUI defendant for not being able to afford a drug and alcohol evaluation? 

The Superior Court has just decided the case of Commonwealth v. Dennis. In Dennis, the court  held that a trial court may not revoke an indigent DUI defendant's bail and incarcerate the defendant for failure to obtain a pre-sentence drug and alcohol evaluation. Although the Superior Court found that Dennis had no remedy because he had already served his sentence for DUI and had not spent any extra time in jail, the case should hopefully end the somewhat common practice of judges putting defendants in jail to obtain their evaluations in cases where the defendant cannot afford the evaluation.

What is a CRN evaluation? 

Pennsylvania's complicated DUI law requires defendants to obtain a Court Reporting Network ("CRN") evaluation upon conviction for DUI. The CRN investigates both whether the defendant has prior DUI convictions which could lead to increased mandatory minimum sentences for the conviction and whether the defendant has a drug or alcohol problem requiring additional treatment. The sentencing judge is then supposed to consider the CNR evaluation during sentencing, but in the majority of DUI cases that do not involve an accident, the defendant typically does not receive more than the mandatory minimum because DUI mandatory minimums are extremely high in Pennsylvania.

Of course, the CRN evaluation is not free. Instead, depending on the county, the court typically requires the defendant to pay approximately $100 in order to have the evaluation done by a provider which has contracted with the county. Further, although courts impose significant fines and costs for DUI convictions, they have not been willing to collect the fee for the CRN evaluation as part of the court costs after sentencing. Although $100 may not seem like a lot, this can be a substantial amount for someone who is out of work. 

Unlike defendants who are on pre-sentence bail, defendants who are incarcerated will have the CRN conducted from custody without having to pay money up front. Therefore, judges in Philadelphia and other counties have a tendency to revoke the bail of defendants who show up to sentencing without having their CRN evaluation completed. Then, the CRN will be done from custody, and the judge can impose sentence. In cases involving second or subsequent offenses, this may not make a huge difference for the individual defendant as the defendant may be facing ninety days in jail or more and may not spend any additional time in jail. But for defendants who are facing a sentence for a first offense, the difference may be huge as the first offense conviction may not require any jail time at all depending on the tier of the offense. Therefore, a defendant who is facing a probationary sentence could spend weeks in jail waiting for a CRN evaluation and sentencing hearing.  

What happens if I can't afford the CRN evaluation? 

In Dennis, the defendant pleaded guilty to a second offense DUI. The trial court ordered him to obtain a CRN evaluation. When he returned to court without the results of the evaluation, the judge informed him that he could either have a week to come up with the $100 and get the evaluation or go to jail and have it done from the jail. The defendant told the judge that he was not working and could not come up with $100 in a week. The court told the defendant that that was his only option, so the defendant said he would rather go into custody and get it over with. Of course, the judge revoked the defendant's bail, ordered the CRN evaluation to be completed from custody, and eventually sentenced the defendant to the mandatory minimum for the offense. Notably, the judge did find the defendant's statement that he could not come up with $100 to be credible, meaning there was no dispute as to whether the defendant could actually afford the evaluation and simply did not wish to pay. 

The defendant appealed to the Superior Court on the issue of whether the judge could revoke the defendant's bail for failure to obtain the CRN in a case where the defendant cannot afford the evaluation. The Superior Court recognized that the DUI statute requiring the CRN evaluation is silent as to what should happen to a defendant who cannot afford the evaluation, but Pennsylvania law simply does not permit punishment to be imposed on a defendant solely because that person is indigent or poor. Further, the statute allows the probation and parole departments to collect the fines and costs after conviction based on the defendant's ability to pay, and therefore, the costs of the CRN evaluation should be handled in the same manner. Thus, the Superior Court issued a reminder that a trial court may not revoke a defendant's bail for failure to pay a fine or cost in cases where the defendant truly cannot afford to pay.

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If you are facing DUI charges, call one of our Philadelphia criminal defense lawyers today. We have handled countless DUI cases, and we know that DUI is far more complicated than it would seem. We know the defenses to DUI charges, and we will fight to protect your driver's license, reputation, and freedom. Call 267-225-2545 for a free DUI defense consultation.  

PA DUI Update: New Ignition Interlock Law Changes Driver’s License Suspensions in DUI Cases

About a year ago, Governor Wolf signed new legislation into law which will change the way a DUI conviction will affect your driver’s license. The new law, which focuses primarily on ignition interlock devices, goes into effect in August. The law requires many DUI offenders to obtain ignition interlock devices for their vehicles even for a first offense DUI conviction. At the same time, it will also allow many people to keep their driver’s licenses who would have otherwise lost their licenses for a year. The intended effect is that the law will prevent DUI offenders from driving drunk while at the same time allowing them to keep their licenses so that they do not lose employment.

Under the previous DUI law, a judge could not order a defendant convicted of DUI to obtain an ignition interlock device for his or her car for a first offense. Further, a first-offense DUI conviction for driving under the influence of alcohol would result in a mandatory one-year license suspension for BACs above .10. Once the law goes into effect, motorists convicted of DUI will have to obtain an ignition interlock for their cars for at least one year. The devices require the driver to blow into a tube that measures the driver’s blood alcohol content (“BAC”). If the driver’s BAC is too high, then the car will not start. However, if the driver submits proof that he or she obtained the ignition interlock device to PennDOT, then the driver will be permitted to drive with an ignition interlock driver’s license instead of having their license suspended for a year. This means that it will be possible to completely avoid the previously-mandatory driver’s license suspension for a first-offense DUI conviction. The law also shortens the mandatory suspension for second and subsequent offenses as it allows the defendant to apply for the ignition interlock license after serving a portion of the license suspension.   

These ignition interlock devices will be expensive. PennDOT has contracted with a number of companies which will install the devices in an offender’s car. The cost to the driver will range from $650 to $1100 for the ignition interlock. However, PennDOT does offer a program for defendants who are unable to afford the device. If the defendant can show that they are below a certain income level, then the state will pay for the ignition interlock. Additionally, if the defendant drives an employer-owned vehicle for work, the defendant may submit the appropriate documentation to PennDOT in order to apply for a waiver of the ignition interlock requirement for the employer-owned vehicle.  

The devices will not be required for first-time offenders who are accepted into the ARD program. Under the terms of the ARD program, the defendant must complete a period of probation, pay fines and costs, attend classes, and the defendant may have his or her driver’s license suspended for up to two month depending on the BAC level at the time of the offense. However, if the defendant successfully completes the program, then the case will be dismissed and the record of the arrest can be expunged.   

The chart below shows the effect of the law on DUI offenders based on the nature of the offense.  

As always, if you are facing DUI charges or any other criminal charges, call 267-225-2545 to speak with an award-winning Philadelphia criminal defense lawyer today.  

What is Recklessly Endangering Another Person?

We just updated our section on misdemeanor crimes in Pennsylvania and the Philadelphia Municipal Court to include a discussion of Recklessly Endangering Another Person. Recklessly Endangering Another Person, often referred to as REAP, is commonly charged along with Simple Assault and Aggravated Assault. Prosecutors typically bring this charge whenever the defendant is alleged to have been involved in any kind of fight or assault. However, there may be defenses to a Reckless Endangerment charge. Click here to learn more. 

PA Superior Court: Judge May Not Announce Defendant's Sentence Prior To Sentencing Hearing

The Superior Court has held that it is reversible error for a sentencing judge to announce prior to a defendant’s sentencing hearing that the judge plans to send the defendant to jail. Under Pennsylvania law, criminal defendants are entitled to individualized sentences based both on the background of the defendant and the nature of the offense. Therefore, the Superior Court reversed the sentence of a man who received 6-12 months in jail for misdemeanor drug possession after the judge told him that he would be going to jail prior to the sentencing hearing.  

In Commonwealth v. Luketic, the defendant pleaded guilty to knowing and intentional possession of a controlled substance. The prosecution alleged that he drove a friend to buy drugs from another gentleman, purchased the crack cocaine himself, and then gave it to his friend, who was a passenger in his vehicle. Under Pennsylvania law, even serving as an intermediary and giving the drugs to a friend immediately after buying them could qualify as Possession with the Intent to Deliver, and Luketic was originally charged with drug delivery. However, given the circumstances, the prosecution permitted Luketic to plead guilty to a misdemeanor count of knowing and intentional possession of a controlled substance instead. The defense and prosecution were unable to reach an agreement as to the recommended sentence, so the defendant entered an “open plea” under which both sides were permitted to make their own sentencing recommendations and leave the final decision up to the judge who accepted the plea.

Both Luketic’s sentencing and the drug seller’s sentencing were listed at the same time, and the judge held the sentencing hearing for the seller first. The judge sentenced the seller to three to six years in state prison. During the sentencing, the judge said to the seller, “You want to sell dope. You have dope fiends like him [indicating Luketic]. He is going to jail, too. He is not walking out of here, either.” The judge reiterated a number of times during the hearing that Luketic would be going to jail. 

The judge then ordered that the defendant be tested for drugs, and while he was being tested, the defendant’s lawyer objected to the judge’s pre-sentencing statement that the defendant would be going to jail. Defense counsel did not actually move for the judge to recuse himself, but he did object multiple times. When Appellant returned from the drug test, the court held the sentencing hearing.

Despite defense counsel’s multiple objections, the court proceeded with the sentencing on the misdemeanor drug charge. The judge heard from both sides, and he permitted defense counsel to introduce evidence of mitigation such as ongoing drug treatment, employment status, and the lack of a significant record. Despite the mitigation evidence and guidelines which typically would have called for probation or a shorter sentence, the judge refused to recuse himself and sentenced the defendant to 6-12 months in jail for the drug possession conviction.

The defendant appealed, and the Superior Court reversed the sentence. On appeal, the defendant raised two grounds: First, he argued that the judge erred in failing to recuse himself. Second, he argued that the trial court violated Pennsylvania law requiring that defendants receive individualized sentences when the judge decided on jail prior to the sentencing hearing.

The Superior Court rejected the first argument, and the Superior Court’s analysis illustrates the dangers of Pennsylvania’s punishing waiver doctrine. Pennsylvania case law requires that issues be clearly raised in the trial court and that motions must be very specific or they are waived on appeal. Despite defense counsel’s repeated objections to the judge, the Superior Court concluded that Luketic waived the recusal issue on appeal because defense counsel failed to use the magic words “recusal” when objecting to the judge’s sentence. This doctrine leads to absurd results in cases like this where the issue was clearly litigated, but appellate courts are often eager to find waiver. The result is that even where a clear error has occurred, the defendant cannot obtain relief on appeal. Instead, the defendant must file a Post Conviction Relief Act Petition once the appeals have been exhausted arguing that counsel was ineffective for failure to object or make a specific motion. 

Despite finding waiver on the recusal issue, the Superior Court found merit in the second issue and reversed the defendant’s sentence. The court noted that “a sentencing court abuses its discretion when it considers the criminal act, but not the criminal himself.” The Sentencing Code prescribes individualized sentencing by requiring the sentencing court to consider the protection of the public, the gravity of the offense in relation to its impact on the victim and the community, and the rehabilitative needs of the defendant. It also prohibits a sentence of total confinement without consideration of “the nature and circumstances of the crime and the history, character, and condition of the defendant.”

Accordingly, the code requires the sentencing court to consider the characteristics of both the defendant and the crime. When a court orders a sentence based solely on the nature of the crime, the sentence must be reversed. The court cannot correct an error by going through the motions and appearances of a full sentencing hearing. Instead, when it is clear from the record that the sentence was pre-determined based only on the nature of the crime, the sentence must be vacated.

In Luketic’s case, the Superior Court found that the court had made its intention to send the defendant to jail clear and unequivocal without hearing any evidence about the defendant. Additionally, the court erred in considering the sentence for the drug seller when sentencing the defendant because it is an abuse of discretion to base one defendant’s sentence on the sentence imposed on another defendant. Finally, the Superior Court was very concerned about the fact that the trial court failed to order and consider a Pre-Sentence Investigation prior to sending the defendant to jail on an open guilty plea for a misdemeanor drug conviction which typically carries probation. Therefore, the Superior Court vacated the sentence and remanded it to the trial court for re-sentencing. The Superior Court did not order that the trial judge recuse himself, but defense counsel would be expected to make a motion for recusal in the lower court.

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