DUI-General Impairment • Chemical Test Refusal • Maximum Term of Imprisonment

Commonwealth v. Newman, PICS Case No. 14-0266 (C.P. Lycoming Jan. 30, 2014) Lovecchio, J. (5 pages).

Trial court properly sentenced second DUI offender who refused chemical testing to a maximum of six months of incarceration. Judgment should be affirmed.

Defendant, who had a prior DUI, pled no contest to DUI-general impairment under 75 Pa.C.S. §3802(a)(1) and to refusing chemical testing. The court sentenced her to a maximum of six months of imprisonment.

Commonwealth appealed, asserting that trial court erred when it failed to impose a maximum sentence of five years. It argued that, pursuant to §3803(b) of the Motor Vehicle Code, defendant, who had a prior DUI, and who refused testing, committed a misdemeanor of the first degree. According to the sentencing statute (18 Pa.C.S. §106(b)(6)), the maximum term of incarceration for a first degree misdemeanor is five years. Hence, commonwealth concluded, defendant should be sentenced to a maximum of five years. In its 1925(a) opinion, the court of common pleas disagreed.

Section 3803(a) of the Motor Vehicle Code provides that “[n]otwithstanding” subsection (b), an individual convicted of DUI, having only one prior offense, commits a misdemeanor and is subject to a maximum term of six months. Subsection (b)(4), on which commonwealth relies, provides that an individual with one or more prior DUIs, who has refused chemical testing, commits a misdemeanor of the first degree. Distinguishing these subsections as a matter of grading, the Superior Court has held that, although refusal to submit to BAC testing results in the grading of the offense as a first degree misdemeanor, the maximum for a first or second conviction is six months of incarceration. See Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). The Musau court found that the word “notwithstanding” as used in subsection (a) means despite. Therefore, despite the provisions of §3803(b)(4), the maximum term of imprisonment allowable for a second DUI-general impairment, where the individual refuses chemical testing, is six months.

Commonwealth’s argument that Musau should not be followed because a petition for allowance of appeal has been filed is meritless.