Loophole in PA Law Favors Hit-and-Run Drivers Over DUI Drivers Who Remain at the Scene of an Accident

Panicked motorists who flee the scene of an accident may face lesser charges than if they stayed and faced the consequences. Pennsylvania lawmakers and prosecutors are bemoaning the sentencing guidelines for hit-and-run drivers, and are calling for increased penalties on these motorists. Under current Pennsylvania law, a conviction for causing a fatal accident while driving under the influence is a minimum of 3 years in prison. However, if a driver leaves the scene and is apprehended later, they can only be charged with fleeing the scene which carries a minimum of 1 year in prison.

By increasing the penalties of fleeing the scene, lawmakers hope to eliminate the incentive for hit-and-run drivers. A driver that has been drinking and causes an accident can potentially face a harsher sentence for DUI if they stay at the accident. Comparatively, a driver that leaves the scene and is not apprehended until alcohol has left their system cannot be charged with DUI, and will face lighter penalties even if the accident caused a fatality. By making sentencing guidelines for DUI with accident and fleeing the scene (even if no alcohol was involved), there is no incentive to do a hit-and-run.

Luzerne County First Assistant District Attorney Sam Sanguedolce told The (Wilkes-Barre) Citizens’ Voice that hit-and-run penalties should be greater than penalties for DUI in a fatal crash.

Last year state Rep. Dave Reed, R-Indiana County, wrote legislation to increase penalties on drivers involved in fatal hit-and-run accidents. A grand compromise was achieved and hit-and-run accidents with a fatality was made a second-degree felony instead of a third-degree felony, which carried a maximum term of ten years in prison rather than seven years. However, the one year minimum term remains.

Sanguedolce said that the change in law will likely not effect first-time offenders or people with little or no criminal history, because typically the maximum sentence is not sought out for those who do not have a long criminal record. “The maximum sentence may be so far away from the standard range that the judge would not reach it,” he said.

Dauphin County Judge’s Ruling Has Potential to Overturn Thousands of DUI Convictions

Dauphin County judge Lawrence F. Clark Jr. has ruled to void breathalyzer evidence in 20 of the highest-penalized DUI cases in the county. Judge Clark Jr.’s ruling decision came after convincing evidence showed that the breathalyzer machines used could not provide an accurate reading beyond 0.15 percent.

A driver in Pennsylvania can be charged with DUI if their blood alcohol content is above 0.08% (the national standard). Under Pennsylvania law (75 Pa.C.S. Section 3802) (b), a driver can be charged with DUI or actual physical control if their BAC is between .08% and .10% and they will face higher penalties than “General Impairment.” The highest rate of alcohol charge deals with those whose alcohol concentration measurable by breath or blood is above .16%.

The last charge is what is specifically being effected by Judge Clark Jr.’s ruling. If breathalyzers cannot accurately measure above .15%, then not all of those charged with the highest rate of alcohol may be guilty of that charge.

Judge Clark Jr. also ruled that DUI prosecutions obtained by evidence using the 5000EN breathalyzer must be considered “extremely questionable.” Testimony of the breathalyzers convinced the judge that the machines are not properly calibrated to give accurate readings at any level. The judge said that the machines are not calibrated according to state regulations.

Justin McShane is the DUI attorney who filed a challenge on his client’s behalf. DUI attorney Justin McShane challenged the accuracy of the breathalyzers, and asked Judge Clark Jr. to void the breathalyzer evidence used by the police. As a result, Judge Clark Jr. not only voided the evidence in Justin McShane’s client’s case, but also in 19 other highest-rate DUI cases in Dauphin County court.

The judge’s ruling has the potential to overturn thousands of drunk driving prosecutions and convictions locally in Dauphin County as well as across the state of Pennsylvania.

Fliers Part of New Anti-DUI Program in Schuylkill County

An anti-DUI program in Schuylkill County is making itself visible in local bars and restaurants with the distribution of “Table Tents”. They are fliers that ask six questions on DUI laws and facts, and are intended to get people to compartmentalize the reality of a drinking and driving arrest. The questions include:

  • Q: How much alcohol is equal to one “drink”?
  • Q: A DUI arrest can result from impairment due to:
  • Q: How many people were arrested for DUI in Pennsylvania last year?
  • Q: What is the minimum amount a DUI in Pennsylvania would cost?
  • Q: What is the range of fines for a DUI?
  • Q: How many alcohol related crashes occurred in Pennsylvania last year?

The answers are:

  • A: 12-ounce beer, 5-ounce wine, 1.5-ounce shot
  • A: Just alcohol, illegal drugs, “designer drugs” (example: synthetic marijuana or bath salts) or prescription drugs
  • A: 57,000
  • A: $5,000
  • A: $300 to $10,000
  • A: 11,812 crashes

Many law enforcement agencies increase patrols around the holidays because there tend to be more alcohol and drug related crashes from Christmas to New Year’s. In 2011, Schuylkill County reported 72 motor vehicle accidents in the county, which resulted in two deaths.

Mahanoy City police Chief Mark J. Wiekrykas said, “We’ve seen an increase in the number of blood (test) results that are coming back (positive) for drugs.” He added that their first case of driving under the influence of bath salts occurred recently.