- Will I go to Jail?
- This is My First Offense Ever. What Should I Expect?
- I Have a Prior Record for DUI
- The Police Didn't Observe Me Operating the Vehicle
- The Police Officer Never Read Me My Rights
- I Was Pulled Over By The Police For No Reason
- What is Going to Happen to My Driver’s License?
- Can I Drive If I Put an Interlock (Breathalyzer) in my Car?
- Can I Get ARD a 2nd Time?
- If I Am Convicted, Can The Case Be Expunged From My Record?
Will I go to Jail?
If convicted of Driving Under the Influence and your Blood level is above .10%, or if this is a second or subsequent offense, the Legislature has set mandatory minimum prison time that must be imposed by the judge. Under the mandatory sentencing law, the judge does not have any discretion and must sentence you to the minimum jail sentence, which can start with a minimum of 2 days in jail for a first offense to 1 year in jail or more depending on prior record. The judge is allowed to sentence you to more than the minimum and he is also permitted to determine whether the sentence will be served in prison, on Work Release or on House Arrest.
If you have never been in trouble with the police before, then you may be a candidate for the Accelerated Rehabilitative Disposition program (ARD). If the District Attorney admits you into the ARD program, will not have to plead guilty and after you complete classes, community service, and a probationary period, the charges are eventually dismissed. There is no mandatory jail time and license suspension can range from no suspension for the lowest level to up to 60 days suspension for levels over .16%. Once the charges are dismissed, a Motion for Expungement can be filed which would remove any record of your arrest including your rap sheet, fingerprints and mug shot. As a former Prosecutor, I approved over 1,500 individuals for this program and now as a defense attorney for over 20 years, I have assisted over 2,500 clients gain entry into this very beneficial program.
The District Attorney will review an individual's prior record to determine whether there were past convictions or ARD cases within the past 10 years and is known as the “10 Year Lookback Period”. If this is a second or third offense in 10 years, the mandatory minimum prison sentence is dramatically increased ranging from 5 days for the lowest level to 1 year in jail for the highest. A majority of the hundreds of multiple offenders that we have represented received house arrest, rather than jail time. If the sentencing judge grants house arrest, the sentence is served in the individual's home rather than prison, and the individual is typically permitted to leave the home for employment.
For you to be found guilty of Driving Under the Influence, the prosecution must prove beyond a reasonable doubt that you were either driving, operating or were in “actual physical control” of the vehicle. There is no requirement that the police observe you driving and the case can be proven that the vehicle had been operated while you were under the influence. Appeals Courts have held that more evidence is needed to prove a case than just than the defendant being found behind the wheel with the motor running. Additionally, the prosecution can prove that someone drove with eyewitnesses, video or statements made by the accused.
Most people know from TV and the Movies about their “Rights” otherwise known as Miranda Warnings and I frequently hear from clients that their case should be dismissed because their rights were not read. What most people do not know, however, is that Miranda warnings are not required to be read when someone is arrested. Miranda warnings, the right to remain silent, the right to have an attorney, etc., are only required when an individual is in custody (not free to leave) and is asked an incriminating question by police. If these warnings should have been given, then any incriminating statements (and not the case) are thrown out of court. Since DUI cases involve the officer’s observations of your driving behavior and your sobriety, most police officers do not read the accused their Miranda warning because the warnings are not necessary.
In order for a vehicle stop to be valid, the police must have "reasonable suspicion" or probable cause to pull the vehicle over. The office must observe a violation of the vehicle code (Speeding, Stop sign violation, etc.) or must observe evidence that a crime is occurring, such as excessive weaving. If you believe that you were illegally stopped, a Motion to Suppress Evidence can be filed in the Court of Common Pleas. At this pretrial hearing, the District Attorney must prove that the police had a valid reason to stop your vehicle. If the judge finds that there was no reason for the vehicle stop, all of the evidence gathered against you is thrown out of court (suppressed) and the case is dismissed.
If you are convicted of a DUI and your blood alcohol level is over .10%, or drugs are found in your system, there is a mandatory 1 year license suspension. If this is a second or subsequent offense, there is a mandatory 18 month suspension. License suspension for the ARD program ranges from no suspension for the lowest blood alcohol level to a 60 day suspension for BAC above .16%. If you lose your license, you may be eligible to drive under the Interlock law if you install a breathalyzer in your vehicle.
If you are eligible for an interlock (breathalyzer) license, you will be permitted to operate only a vehicle that has an interlock unit installed on it and you must obtain a special interlock license from Penndot. These units are small breathalyzers that are connected to your ignition and the driver is required to blow into it to start the vehicle and blow into it periodically when prompted. Eligibility to get an interlock depends on the case. If this is a first offense DUI conviction in the last 10 years and there was a 1 year suspension imposed, or you were given ARD for this case, you are immediately eligible to install the interlock and obtain an interlock license from Penndot. If this is a second or more offense, the law states you must serve at least one-half of the total suspension before you are eligible for an interlock license.
ARD is a program for first time offenders where the charges are eventually dismissed after certain conditions are met. Once the charges are dropped, the case can be expunged. Whether you can get ARD a second time is solely up to the District Attorney in the county where you are charged. While ARD is the same law throughout the state, the way that ARD is administered is up to each individual county. If you received an ARD within the last 10 years, no county will give you a 2nd ARD and most will treat you like a second-time offender, which means mandatory jail time in most cases. If your ARD is over 10 years old, some counties take a very strict approach to ARD and will only give it once to true first time offenders and a second ARD is never given. Other counties will give ARD a second time if the old case is over 10 years. It is very important that your lawyer practice in the county where you have been charged with committing the crime as every county had different rules and procedures.
Under the law, If you are convicted of a criminal offense, the case cannot be expunged by a judge until age 70. However, if the case involves low-level misdemeanors, you may be able to file a Motion to have the charges hidden from public view. The only way to have a conviction totally removed from your record is to apply to the Board of Pardons for a Governor’s Pardon, which is difficult to obtain. If you are placed into a first-time offender’s program the case is eligible for expungement if you successfully complete the program.