DUI Gradings, Penalties, & Impact on Your Rights

While Pennsylvania’s DUI law is located within Chapter 38 of our motor vehicle code, instead of being within our crimes code, it is a misdemeanor criminal offense unless it involves an accident with serious bodily injury (SBI) or death. DUIs involving SBI or death will be discussed below in the section detailing aggravated DUI cases.  The grading of a DUI charge is important because it implicates the maximum penalties as well as the trial rights and the length of the license suspension.

• Offense Gradings
• • Ungraded Misdemeanor DUIs (M)
  • First offense DUIs, and second offense DUIs at the lower two tiers are ungraded misdemeanor offenses. They are generally punishable by a maximum penalty of six (6) months imprisonment and a fine of $5,000.00. The exception is that at the lowest level of DUI the fine is fixed at $300 for a first offense and ranges from $300 to $2,500 for second offense.
  • • DUIs without the right to jury trial
    • Since the maximum term of incarceration is fixed at 6 months for ungraded DUI cases, our courts have held that an accused does not have the right to a jury trial. Accordingly, trial for all first offense DUIs and second offense DUIs at the lower two tiers are bench trials were a judge rules on the law and the facts of the case.  Obviously, not having the right to a jury trial must be considered when evaluating the case for trial.
  • Misdemeanor of the Second Degree DUIs (M2)
  • Third and subsequent offense DUIs at the lowest level are graded as misdemeanors of the second degree. These offenses are punishable by a maximum of two years in jail and a $5,000.00 fine.
  • Misdemeanor of the First Degree DUIs (M1)
  • A second offense DUI at the highest rate is a misdemeanor of the first degree. Third and subsequent DUI offenses at the middle and highest tiers are also graded as misdemeanors of the first degree. A misdemeanor of the first degree is punishable by a maximin of five years imprisonment and a $10,000 fine. Any M1 DUI conviction also carries an 18-month license suspension. See 75 Pa.C.S. § 3804(e)(2)(ii).
    
    DUIs graded as a M1 also have at least a 90-day mandatory minimum period of incarceration. Third offenses at the highest rate, and fourth and subsequent offenses at the middle and highest rate have a one-year mandatory minimum jail sentence.
    
    Here, it is also important to note that an M1 will likely be treated as a felony conviction in our federal system and by most other states since the maximum penalty is five years.
• DUI Penalties
• • ​The penalties for a DUI in Pennsylvania are affected by two main factors.
  • BAC Level
    
  • First, is the accused blood alcohol content (BAC) or the presence of narcotics (illegal or prescribed). Pennsylvania has three levels of BAC; General Impairment (.08 to .099%), High BAC (.10 to .159%), and Highest BAC (.16% and higher or Drugs). The penalties increase with each BAC level.
    
    The second factor is the number of prior DUI convictions within a 10-year period of the incident date. The basic PA DUI chart illustrated below, shows the penalties based on BAC and the number of priors within 10 years.
    
  • Prior DUI Offenses
  • Determining if a DUI is a first, second, third, or subsequent offense is extremely important as it impacts the grading, penalties, and ultimate resolution of a case.
    
    Pennsylvania has a 10-year look-back rule for DUI offenses. This means that any DUI offenses within the 10-year period count as prior offenses for sentencing purposes. Section 3806 of our vehicle code “sets” the time frame for calculation a prior offense DUI. It is a shame that this rule is not clear; however, the law is unclearly written. Interestingly, this rule has been amended a few times over the last few years. It was most recently amended on May 25, 2016, and the wording of the statute is still unclear on how to calculate the 10-year look-back period.
    
    The problem is that section (a) and section (b) of the law conflict. Section 3806(a) suggests the calculation runs from the date of the prior conviction to the date of the current DUI offense. Subsection (a) is labeled as the general rule and defers to the specific rules set in subsection (b). Section 3806(b) is labeled as “timing” and suggests that the calculation period runs for the date of the prior DUI offense to the date of the current DUI offense.
    
    It is clear, however, that any prior DUI conviction, juvenile adjudication, ARD, or similar diversion program can count as a prior DUI offense.
    
  • • Out-of-State DUI Convictions can count as prior DUI offenses
    • A DUI that was committed in a state outside of Pennsylvania will count as a prior offense provided that the foreign offense is substantially similar to Pennsylvania’s DUI statute.
    • An expunged DUI can count as a prior DUI offense
    • Even a DUI case that was resolved with ARD and that was “erased” from a criminal history via expungement can count as a prior DUI conviction. Here it is important to understand that while an expungement clears a criminal record, it does not impact a driver history. Thus, a driver history will continue to report a DUI disposition post-expungement.
  • What are the Penalties?
  • Pennsylvania’s DUI statute requires mandatory minimum penalties that increase depending of the driver’s level of impairment and number of prior offenses. When evaluating these mandatory minimum penalties, it is important not to lose sight of Pennsylvania’s standard sentencing scheme. In short, the mandatory minimum penalty only controls when it is below the standard range of sentencing. If a DUI offender has an elevated PRS, they may face a standard range sentence that is substantially more punitive that he mandatory minimum sentence.
  • • DUI Penalty Chart
    • • Mandatory Minimum Sentences
      • Unlike mandatory minimum sentences that have been ruled illegal in other cases, Pennsylvania’s mandatory minimum DUI sentencing scheme has been deemed legal by our courts. Mandatory minimum sentences require judges to impose at least the lowest penalty allowed by a statue. If a court deviates below the mandatory minimum, the sentence is illegal.
        
        PA DUI laws have mandatory minimum sentences that apply for every DUI conviction. The only expiations are the ARD program, a treatment programs. This means that if you are convicted of DUI in Pennsylvania a judge is bound by law to give you at least the statutory minimum penalty that applies. For example, a first offense DUI that is not ARD eligible carries a mandatory minimum of 72 consecutive hours of confinement, 12 months driver's license suspension, and a fine of $1,000.00.
      • Collateral Consequences
      • All crimes have consequence that are collateral to the penalty (jail time, community service, fines, and court costs) imposed directly by the court. In general, the collateral consequences of any crime are practically infinite. DUI cases have many serious collateral consequences that drivers must understand. Of course, the grading of a DUI conviction impacts the collateral consequences.
      • • License Suspension & Ignition Interlock
        • There are only two scenarios where a DUI case does not result in a driver’s license suspension. First, the case is ends in acquittal or dismissal and was not a refusal. Second, the DUI is a first offense at the lowest tier, without a crash or involving a special driver. All other DUI resolutions result in suspension of 12 or 18 months.
        • • Periods of No Driving
          • ARD cases with 30, 60, or 90 day suspension require that the driven submit their license to PennDOT and not drive during the period of suspension. There is no exception to the suspension. These periods of no driving is as good as the suspension relief gets for DUI cases.
          • Ignition Interlock
          • As of August 25, 2017, Pennsylvania’s Ignition Interlock Law changed. Now, the only DUI cases where ignition interlock is not required are ARDs and first offense DUIs at the lowest tier. All other DUI convictions require a period of ignition interlock. While this is a new and harsh requirement, it does permit a DUI driver to legally drive a vehicle up to six (6) months earlier than before the law changed.
          • • Ignition Interlock Chart
            • A full review of our new ignition interlock law is explained here.
            • Driving DUI Suspended
            • Driving while DUI suspended is graded as a summary offense; however, the penalties are severe. First, it has a mandatory minimum of 60 days of confinement. The maximum period of confinement is 90 days. Courts can impose jail or house arrest with electronic monitoring. It also has a $500.00 mandatory fine and an additional 12-month license suspension.
              
          • Driving DUI Suspended with BAC .02%
          • If an offender is stopped while Driving DUI Suspended and has a BAC of at least .02% they face more severe penalties. A first offense is a summary offense punishable by a fixed 90 days confinement and a $1,000.00 fine. A second offense is a M3 and have a 6-month mandatory minimum jail term and at least a $2,500.00 fine. Third offenders are charged with an M1 must serve at least 2 years in jail and pay a $5,000.00 fine. Each offense also carries an additional 12 month license suspension.
          • Impact of Criminal Record
          • A conviction to an ungraded misdemeanor or misdemeanor of the second degree may be eligible for a limited access order to remove the offense from an individual’s criminal record.  Conversely, misdemeanor of the first degree convictions are statutorily ineligible for expungement or limited access and can only be removed from a record via governor’s pardon.
          • Employment
          • Any DUI may jeopardize a professional license (nursing, teaching, law, etc.) and security clearances. There may also be an obligation to self-report a DUI incident. Individuals with these issue that are facing a DUI should immediate contact an experienced DUI lawyer to discuss their situation. Obviously, all DUI offenders risk losing their employment due to lack of transportation.
          • Firearm Rights
          • Offense grading is important because certain convictions (M2 or M1) may preclude certain rights such as the right to legally purchase or possess a firearm.
          • Travel
          • A DUI also impacts travel to certain countries. For example, Canada may not permit an individual to enter their country because of a DUI conviction. In fact, Canada strictly enforces this rule.
          • Immigration Status
          • A DUI can become a removable (deportable) offense for an undocumented person or other non-citizens in certain situations. In general, an offense is removable if it is an “aggravated felony” or a “crime involving moral turpitude.”
            
            A DUI becomes a crime involving moral turpitude if the record of conviction reflects that an offender knew their license was suspended or revoked due to a prior DUI conviction.
            
            Further, a DUI conviction is removable when the record of conviction reflects that impairment was because of a controlled substance.