Sentencing • Vehicle Code • DUI Offenses • Testing Refusal

Commonwealth v. Thompson, PICS Case No. 14-0106 (C.P. Lycoming January 2014) Lovecchio, J. (6 pages).

Pursuant to the Superior Court’s recent holding in Commonwealth v. Musau, the maximum term of imprisonment allowable for defendant’s second driving under the influence/incapable of safely driving offense where he refused blood or breath testing was six months. Defendant’s motion in limine granted in part.

Defendant was charged with driving under the influence of alcohol (DUI), incapable of safely driving, refusal in violation of 75 Pa.C.S.A. §3802 (a)(1). Defendant was also charged with DUI and related offenses. Under the first count of this information, he was charged with DUI, incapable of safely driving in violation of §3802(a)(1). Under the second count, he was charged with DUI with a highest rate of alcohol in violation of §3802(c).

The parties stipulated that the grading of the DUI offense under information 36-2013 was a misdemeanor of the first degree as it was defendant’s second offense within the 10-year look back period. Moreover, count two under information 1737-2013 was a misdemeanor of the first degree because it was defendant’s second offense within 10 years.

Here, the court of common pleas considered defendant’s motion in limine seeking a determination by the court that despite the grading of the respective DUI offenses, the maximum prison term permitted by statute and applicable case law on each offense should be six months.

The court explained that §3803(b)(4) of the Vehicle Code states that an individual who violates §3802(a)(1), DUI with a highest rate of alcohol, and who has one or more prior offenses commits a misdemeanor of the first degree.

However, §3802(a)(1) provides that, notwithstanding the provisions of subsection (b), an individual who violates §3802(a) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months.

Defendant relied on Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), wherein the Superior Court concluded that although a refusal to submit to blood alcohol testing results in the grading of a DUI offense as a first degree misdemeanor, the maximum for a first or second conviction for such is six months imprisonment.

The Commonwealth argued that the court should not follow Musau because a petition for allowance of appeal was filed with the Pennsylvania Supreme Court. The court acknowledged that a petition for allowance of appeal was filed, but found that the docket did not reflect an order granting the petition.

Regardless, the commonwealth failed to cite any authority to support its position that, because a petition for an appeal is filed, a duly filed and published Superior Court opinion need not be followed by the trial court, the court observed.

Alternatively, the commonwealth relied on Commonwealth v. Mendez, No. 3274 EDA 2011, J-A25038-12 (Pa. Super. Oct. 15, 2012), wherein a Superior Court panel held that where a defendant has one prior DUI conviction and refuses chemical testing, the individual commits a misdemeanor of the first degree and the maximum sentence allowed by law is five years.