DRIVING WHILE DUI SUSPENDED IN PENNSYLVANIA

Driving while operating privilege is DUI suspended or revoked

This article involves subsection 1543(b) that applies DUI related license suspensions. Subsection 1543(a), which concerns non-DUI suspended drivers is discussed in a separately (See article on 1543(a)).

Subsection 1543(b) covers two distinct offenses. Subsection 1543(b)(1) pertains to any driver that operates a motor vehicle while DUI suspended. Subsection 1543(b)(1.1) specifically applies to the more serious offense of a DUI suspended driver that operates a motor vehicle while having a BAC of at least .02%.

75 Pa.C.S. § 1543(b)(1) – Driving While DUI Suspended

1543(b)(1) provides that: A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver's License Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.

1543(b)(1) – Penalties

Unlike 1543(a) and 1543(b)(1.1) the penalties under 1543(b)(1) are not enhanced with subsequent convictions. In other words, 1543(b)(1.1) has the same penalties for first and subsequent offenders.

License Suspensions for 1543(b)(1) Violations

PennDOT will issue a consecutive 1-year license suspension for a 1543(b)(1) conviction. The suspension is enhanced to 2-years if the driver’s license was under revocation.

60 to 90 days Jail for 1543(b)(1) Violations

Upon conviction of 1543(b)(1), a court must impose at least 60 and up to 90 days incarceration. The court may permit a defendant to participate in IPP and, if eligible, serve the sentence on house arrest with electronic monitoring (an ankle bracelet). While house arrest if generally preferable to jail, it is typically a more expensive alternative.

Fine for 1543(b)(1) Violations

The fine for 1543(b)(1) violations is fixed at $500 plus court costs.

75 Pa.C.S. § 1543(b)(1.1) – Driving While DUI Suspended w/ BAC .02 or Above

1543(b)(1.1) provides that: A person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing or who at the time of testing has in his blood any amount of a Schedule I or nonprescribed Schedule II or III controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or its metabolite or who refuses testing of blood or breath and who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 or former section 3731 or because of a violation of section 1547(b)(1) or 3802 or former section 3731 or is suspended under section 1581 for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon a 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.

1543(b)(1.1) – Penalties

License Suspensions for all 1543(b)(1.1) Violations

PennDOT will issue a consecutive 1-year license suspension for a 1543(b)(1) conviction. The suspension is enhanced to 2-years if the driver’s license was under revocation.

First Offense 1543(b)(1.1)(i) Violations

Upon conviction of 1543(b)(1.1)(i), Driving DUI Suspended with a BAC of at least .02%, a court must impose 90 days incarceration and a $1,000 fine. This is graded as summary offense.

The court may permit an eligible defendant to participate in IPP and, if eligible, serve the sentence on house arrest with electronic monitoring (an ankle bracelet). While house arrest if generally preferable to jail, it is typically a more expensive alternative.

Second Offense 1543(b)(1.1)(ii) Violations

A second violation of 1543(b)(1.1) is a misdemeanor of the third degree (M3). The person must be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

Here, the court may permit an eligible defendant to participate in IPP and, if eligible, serve the sentence on house arrest with electronic monitoring

Third and Subsequent Offenses 1543(b)(1.1)(iii) Violations

A third or subsequent violation of 1543(b)(1.1) constitutes a misdemeanor of the first degree (M1). The maximum sentence for this offense is 5 years imprisonment. The offender must be sentenced to pay a fine of $5,000 and to undergo imprisonment for not less than two years.

Elements & Analysis of Section 1543(b) Offenses

Elements of 75 Pa.C.S. § 1543(b)(1) – Driving DUI Suspended

In 1543(b)(1) prosecutions, the Commonwealth must establish: (1) the defendant was driving or was in actual physical control of the movement of a motor vehicle; (2) the defendant was under DUI suspension at the time of the alleged driving; and (3) the driver had notice of the suspension.

Elements of 75 Pa.C.S. § 1543(b)(1.1) – Driving DUI Suspended w/ BAC .02%

When 1543(b)(1.1) is charged, the Commonwealth must establish: (1) the defendant was driving or was in actual physical control of the movement of a motor vehicle with a BAC .02% or higher; (2) the defendant was under DUI suspension at the time of the alleged driving; and (3) the driver had notice of the suspension.

Driving or Actual Physical Control

Our courts have explained that a Person “operates” a vehicle if he is in actual physical control of either the machinery of the motor vehicle or the movement of the vehicle itself. Commonwealth v. Costa-Hernandez, 802 A.2d 671 (Pa. Super .2002). Actual physical control for purposes of determining whether person is operating a vehicle is determined based upon the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was additional evidence indicating that the defendant had driven the vehicle prior to the arrival of the police. Id. It is not necessary for the Commonwealth to produce direct evidence of driving, such as testimony that a defendant was seen driving, but they may instead rely on circumstantial evidence creating the inference that the vehicle had been in motion in order to meet its evidentiary burden. Id.

Notice of DUI Suspension

Actual notice of driver’s license suspension may take the form of a collection of facts and circumstances that allow the court to infer that a defendant has knowledge of suspension. Commonwealth v. Baer, 682 A.2d 802 (Pa. Super. 1996); see also Commonwealth v. Brewington, 779 A.2d 525 (Pa. Super. 2001). Factors that may be considered to determine if defendant has actual notice of suspension of driver's license include:  evidence that the DOT sent by mail a notice of suspension to defendant's current address, and statements by defendant indicating knowledge, or any conduct demonstrating circumstantially or directly defendant's knowledge of suspension. Baer, supra. Anything that proves knowledge or shows that knowledge exists can be sufficient to prove “notice” of license suspension. Commonwealth v. Crockford, 660 A.2d (Pa. Super. 1995). Merely establishing that notice of license suspension was mailed, however, is not sufficient by itself to show actual notice required for conviction for driving with suspended license, DUI-related. Commonwealth v. Vetrini, 734 A.2d 404 (Pa. Super. 1999). Nevertheless, a driver can be effectively estopped from raising a lack of notice argument where notice of suspension is mailed to an old address because the driver failed to notify the DOT of the address change. Commonwealth v. Crockford, 660 A.2d 1326 (Pa. Super. 1995).

Further, when a driver’s license has been suspended it is not automatically restored either by the passage of time or the performance of some mandatory act. Commonwealth v. Moyer, 310 A.2d 345 (Pa. Super. 1973). The suspended driver must take affirmative steps to have his privilege reinstated but cannot drive until the Department of Transportation (DOT) has taken affirmative action to restore privilege. Id. Therefore, for a suspended driver's license to be restored, a letter must be sent by the DOT and received by driver notifying him that it is legal for him to drive again. Commonwealth v. Williams, 872 A.2d 186 (Pa. Super. 2005).

Duration & Termination of DUI Suspended Status

Accordingly, a DUI suspended motorist is subject to the penalties of section 1543(b), throughout any current suspension or revocation whether DUI-related or not if such suspension or revocation has been imposed to begin at a future date. Commonwealth v. Marron, 11 Pa. D. & C. 4th 279 (1991), affirmed 609 A.2d 584 (Pa. Super. 1992). Thus, a DUI suspended driver faces penalties pursuant to 1543(b) until he fully serves the term of the DUI suspension and successfully reinstates his drivers license. 75 Pa.C.S. § 1543(b)(2) (stating “This provision shall also apply until the person has had the operating privilege restored.”).

Right to Counsel

An indigent defendant facing imprisonment at a summary trial for driving while operating privilege was suspended has the right to court appointed counsel. Commonwealth v. Soder, 905 A.2d 502 (Pa. Super. 2006).

An Experienced Criminal Defense & PA Driver’s License Lawyer Can Help

If you or someone you know has been cited with driving while DUI suspended pursuant to 1543(b), Lampman Law can help. We are in Pennsylvania magistrate and trial courts daily and we frequently represent good people charged with violating section 1543(b) and other serious Vehicle Code offenses that carry drivers license suspensions. While every case is different, we frequently resolve these cases without jailtime (when applicable) and without additional license suspension.

Once a 1543(b) citation is served, it is important to act fast. It is best to contact a criminal defense lawyer that understands the Vehicle Code and license suspension issues. It is also important to plead NOT GUILTY and to timely respond to the citation. Once the magistrate court receives the not guilty plea, they will schedule a summary trial.

Most importantly, it is essential for you to understand that by pleading guilty to 1543(b), your driver’s license will be suspended for an additional year. Nothing on the citation will provide notice of the suspension; however, you are presumed to know the law and its consequences.

Contact Lampman Law to Defend 1543(b) Charges

Lampman Law is eager to defend your 1543(b) case and we are confident that we will help you resolve the citation in a positive manner. If you decide to hire us we will carefully listen to your side of the story, answer your calls, return calls promptly, and will handle all aspects of your case with careful attention to every detail.

Please contact Lampman Law at 570-371-3737 if you have any questions. We offer a free consultation reasonable fees. Payment plans (including credit card payments) can be arranged.

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