The crime of “driving under the influence of alcohol or controlled substance,” 75 Pa.C.S. § 3802, is really a misleading phrase because, to be convicted of a DUI in Pennsylvania, the following doesn’t necessarily need to be true:

  • That you were driving; or
  • That you were under the influence while driving.

A. It is enough to “operate or be in actual physical control of the movement of a vehicle.”

There are numerous cases in Pennsylvania where people have been convicted of DUI without the police having made a traffic stop or witnessing the person actually driving the vehicle. These cases have involved people pulled over on the side of road; sleeping in a vehicle in a parking lot; or operating the machinery of the vehicle while the vehicle stays stationery.

Having tried a DUI case of this sort, experience informs that the caselaw dealing with non-driving defendants places a lot of importance on the location of the defendant’s vehicle. The vehicle’s location is important to the analysis of whether there’s been a violation of the DUI law.

The location is important because it highlights “other evidence indicating that the motorist had driven the vehicle at some point prior to the arrival of the police”—a major factor. Consequently, the cases have an eye toward imposing the sanctions of the DUI law where the prosecution can show circumstantially that a motorist was, at some point, driving under the influence. (For instance, when a vehicle is parked in the middle of a parking lot as opposed to a parking space outside of a bar.) It’s seemingly not enough, however, to have started a car under the influence to be convicted of a DUI.

B. It is enough that you drove, operated, or was in actual physical control of the movement of a vehicle “after imbibing a sufficient amount of alcohol,” or while there’s any amount of a controlled substance in your blood.

Believe it or not, a motorist can be convicted of DUI if they ingested any controlled substance days before driving and they’re no longer under the influence of that substance. That’s what Section 3802(d) of the Vehicle Code says: all that’s necessary to be convicted of that provision of the law is that a person “drive, operate or be in actual physical control of the movement of a vehicle . . . [and] there is in the individual’s blood any amount of a [Schedule I, II, or III] controlled substance]” or a metabolite thereof.

If you think that’s absurd, then Philadelphia District Attorney Larry Krasner agrees with you. He testified before state legislators on April 29, 2019, and he said this about Pennsylvania’s DUI law:

Pennsylvania has had the dumbest law on DUI for cannabis for a very long time. What that law currently says is if there is any detectable amount of digested marijuana in your system then you are DUI. So in other words, if I smoked a joint 30 days ago, it has absolutely no psychoactive effect whatsoever on anything that I’m doing, and I drive a car, then I’m driving under the influence. This is absurd.

See http://www.pasenate.com/joint-policy-hearing-legalizing-adult-use-marijuana-april-29-2019

But that’s the state of Pennsylvania’s DUI law, at least as it pertains to DUIs involving controlled substances. And DUIs involving alcohol also don’t necessarily require a showing that the accused was “under the influence” at the time of the offense. There’s a misconception that police must demonstrate that the accused had a calculable blood alcohol content (BAC), but that’s simply not the case. Under Section 3802(a)(1) of the Vehicle Code, a person may be convicted of a DUI merely “after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving.

So, overall, the material elements that the prosecution must show to convict for DUI are generally these:

  • Driving, operating or being in actual physical control of the movement of a vehicle on a highway, roadway, or trafficway; and
  • Doing one of the above “after imbibing a sufficient amount of alcohol,” or while registering a calculable BAC; or
  • Showing any amount of a Schedule I, II, or III controlled substance in the motorist’s blood at the time of the offense

Being convicted of a DUI not only involves harsh, direct consequences, such as unforgiving mandatory-minimum sentences and high fines. But being convicted of a DUI carries with it debilitating collateral consequences, such driver’s license suspensions, ignition interlock requirements, loss of gun rights (in some instances), and a permanent criminal record.

The charts below highlight most of the consequences stemming from a DUI conviction. To better understand these charts it’s helpful to understand certain abbreviations:

GI=General impairment, BI=Bodily injury, SBI= Serious bodily injury, D=Days, M=Months (except when under Grade column)

DUI-General impairment, 75 Pa.C.S. § 3802(a)(1), (2)

BAC (.08 -.099%)

First M 6 M Probation $300 None
Second M 5 D – 6 M $300-$2,500 12 M
Third M2 10 D – 2 YRS $500-$5k 12 M
Fourth + F3 10 D – 7 YRS $500-$5k 18 M

DUI-GI involving BI, SBI, death, property damage

DUI-BAC High tier (.10%-.159%)


DUI-Commercial/School vehicles

First M 48 HRS – 6 M $500-$5k 12 M
Second M 30 D – 6 M $750-$5k 12 M.
Third M1 90 D – 5 YRS $1,500-$10k 18 M
Fourth + F3 1 YR – 7YRS $1,500-$10k 18 M

DUI-GI + Refusal of blood or breath test

DUI-BAC Highest tier

DUI-Controlled substances

First M 72 HRS-6 M $1,000-$5k 12 M
Second M1 90 D – 5 YRS $1,500 18 M
Third+ F3 1 YR – 7YRS $2,500 18 M

DUI +Minor occupant in car
Under Section 3804(c.1) of the Vehicle Code, those convicted of violating any section of Section 3802 and “where a minor under 18 years of age was an occupant in the vehicle” commits a first-degree misdemeanor, or third-degree felony if the the individual has two or more prior offenses.

There’s separate penalties imposed under these circumstances “in addition to any penalty” noted in the charts above. For instance, for a first-time DUI offender traveling with a minor occupant, there’s an additional fine of “not less than $1,000” plus a requirement of completing 100 hours of community service. For a second-time DUI offender traveling with a minor, there’s an additional fine of “not less than $2,500” plus a period of imprisonment of one month to no more than six months. And for a third-time DUI offender traveling with a minor, the law sets forth a period of imprisonment of “not less than six months nor more than two years.”

While DUI cases tend to lend themselves to being some of the most triable criminal cases because of the frequent opportunities to challenge or undermine “the science” supporting DUI prosecutions, the reality is is that the vast majority of DUIs are resolved pre-trial through what is known as the Accelerated Rehabilitative Disposition (ARD) program.

ARD is a “diversionary program” that’s meant for first-time, non-violent offenders. ARD is not a program guaranteed to everyone that fits this category, rather it’s a program that’s available to those persons the District Attorney offers it to in his or her sole discretion. ARD is an appealing program to many because, unlike a trial, it offers a predictable outcome for the dismissal and expungement of the person’s charges provided the they follow and complete the conditions of the ARD program. Accordingly, in light of this predictability, ARD is frequently too good of an offer to refuse. And the statistics bear that out.

For example, focusing on Allegheny County, for 2018 there were 4,018 new “Motor Vehicle DWI/DUI” cases filed, and that same year there were 2,441 case dispositions through “diversionary programs.” Caseload Statistics of the Unified Judicial System of Pennsylvania, 2018. While all of the “Motor Vehicle” cases may not have been DUIs, and all of the diversionary dispositions may not have been ARDs for DUIs, experience suggests that a great proportion of DUIs are resolved by way of ARD.

Apart from ARD being appealing and beneficial to many for reason of being able to preserve their general reputation in the community and avoid a criminal record, ARD is additionally appealing because of the lessened license-suspension periods that come with it. Section 3807 of the Vehicle Code, which spells out the ARD program, outlines the license-suspension periods for ARD participants:

(d) Mandatory suspension of operating privileges.–

As a condition of participation in an Accelerated Rehabilitative Disposition program, the court shall order the defendant’s license suspended as follows:

  1. There shall be no license suspension if the defendant’s blood alcohol concentration at the time of testing was less than 0.10%
  1. For 30 days if the defendant’s blood alcohol concentration at the time of testing was at least 0.10% but less than 0.16%.
  1. For 60 days if:
    1. the defendant’s blood alcohol concentration at the time of testing was 0.16% or higher;
    2. the defendant’s blood alcohol concentration is not known;
    3. an accident which resulted in bodily injury or in damage to a vehicle or other property occurred in connection with the events surrounding the current offense; or
    4. the defendant was charged pursuant to section 3802(d).
  1. For 90 days if the defendant was a minor at the time of the offense.

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