Articles

A BRIEF PRIMER ON THE NEW DUI LAW

By: Steven F. Fairlie, Esquire

Effective September 30, 2003 the BAC-based standard for DUI was lowered to .08% and effective February 1, 2004, a major revision of Pennsylvania's DUI law was implemented. Criminal law practitioners are still struggling with ramifications of the new laws, including new offense definitions, new sentencing schemes tiered based on BAC levels, and an increased focus on treatment options. This article will present a very brief overview of the new law in the broadest of terms. No one should rely on this article to provide legal advice without reviewing the statutes, as there are numerous details and exceptions that have been omitted from this article for the sake of brevity.

Offense definitions

The new statute contains a subsection labeled "General Impairment" that prohibits driving after "imbibing" either enough alcohol to render a person "incapable" of safe driving or enough to result in a BAC of between .08% and .10% within two hours of driving. The "incapable of safe driving" provision is nearly identical to pre-existing law, while the second provision closely mirrors language that created a three hour presumption under a former version of the law that was declared unconstitutional. The new statute goes on to create additional offenses defined as "High rate of alcohol" and "Highest rate of alcohol" which contain the same language and two hour presumption as "General Impairment" but are based on a BAC levels of .10% to .16% and greater than .16%, respectively. This is a major departure from previous law, which did not distinguish between offenders based on BAC levels. Finally, the new law also contains provisions outlawing driving while various controlled substances or metabolites thereof are in a person's blood, some even when legally prescribed by a doctor, and regardless of whether the substance has any effect on driving. It further prohibits driving while under the influence of any drug or combination of drugs and/or alcohol to a degree which impairs the person's ability to safely drive. This new unprecedented language is extremely problematic, as "drug" is a much broader term than "controlled substance" and "impairs" is much more broad than the previous language which specified that a person must be "incapable of safe driving." The scariest part of this new language is that if read literally, it would prohibit driving after taking over-the-counter medications such as Tylenol or Advil cold medications, which are "drugs" that can "impair" the ability to drive, however slightly. Worse yet, a conviction for such an offense would require a mandatory minimum incarceration of 72 hours, as all drug offenses are treated as the equivalent of a "Highest rate of alcohol" offense. Obviously, the constitutionality of this provision will be thoroughly tested by the defense bar.

Sentencing provisions

One of the interesting aspects of the new sentencing scheme is that, for the most part, it is more lenient for offenders with one or two offenses in low BAC ranges, although it is tougher on those with multiple or high BAC offenses. For instance, General Impairment convictions carry mandatory minimums of no jail, 5 days in jail, or 10 days in jail for first through third offenses respectively, while the corresponding penalties under the old law were 48 hours, 30 days, and 90 days. One can also contrast those same penalties under the old law with the new penalties for "Highest rate" or Controlled substance offenders who face mandatory minimums of 72 hours, 90 days, and 1 year, respectively, with corresponding mandatory minimum fines of $1000, $1,500, and $2,500 versus a fine of $300 across the board under the old law. Finally, there is an interesting requirement pertaining to some of the more serious offenses that the offender be sentenced to a parole period equal to the statutory maximum, possibly converting what otherwise would be a county sentence into a state sentence.

Conclusion

There are so many novel aspects to the new law that anyone handling DUI cases should read it in its entirety. A few areas to focus on include a requirement that the Department of Health publish minimum levels of controlled substances and their metabolites that must be present in blood for results to be admissible in court (See 34 Pa. Bull. 919), the availability of Occupational Limited Licenses for certain DUI offenders, Ignition Interlock provisions, and mandatory treatment provisions. Even those who manage to thoroughly familiarize themselves with the statutory language will have much to learn in the future as judicial interpretations of the law's more ambiguous provisions begin to appear.