FROM:           Craig W. Stedman, District Attorney

DATE:           April 27, 2015

SUBJECT:    Legislative Priorities – Impaired Drivers

            During our meeting on April 9, 2015, Senator Lloyd Smucker asked that we prepare a priority list of changes to the current driving under the influence (DUI) legislation.  The following are those proposals, in order of precedence:

1.         Vehicle Forfeiture    

            Currently Pennsylvania law provides for the forfeiture of vehicles involved in a variety of offenses.  These include: Violations of the Liquor Code,[1] Controlled Substance Offenses,[2] Solid Waste Act Violations,[3] Vehicle Load Violations,[4] Second Convictions for Scattering Rubbish,[5] and Accidents Involving Death or Personal Injury – Not Properly Licensed.[6]

In the hands of an impaired driver, a vehicle is a deadly weapon.  Despite this, the Pennsylvania Vehicle Code, does not provide for forfeiture of vehicles in impaired driving offenses regardless of whether the offender is a first time offender or repeat offender.  At present, we convict individuals for second, third, fourth and subsequent impaired driving offenses, yet allow them to retain the instrument of that offense – their vehicle.   Far too often this results in yet another impaired driving arrest, and in many cases, a crash resulting in injury or death.

In response to this same problem, thirty-two of our sister states have enacted laws allowing for vehicle impoundment and/or forfeiture for impaired driving offenses and/or driving with a suspended license.[7]  Although all the current studies regarding the effect of a forfeiture sanction are “quasi-experimental” in nature, they have shown a significant reductions in recidivism where DUI offender’s vehicles were subject to forfeiture.  In fact, a study conducted in Oregon in 1995 found a 50% lower re-arrest rate “for offenders whose vehicles were seized than for their counterparts whose vehicles were not seized.”[8]

The enactment of a forfeiture provision for repeat DUI offenders provides the Commonwealth not only with a way to remove a weapon from the most dangerous driver on the roadway, but more significantly provides a deterrent effect that reduces DUI recidivism.  As such, it meets the goals of punishment, deterrence, and the protection of society.

We must remember that the goal is to deter and not to have to forfeit.  As a result, such a change should only take place after significant public relations exposure and fair warning to would be repeat offenders.  Provisions to shield innocent owners must be included.  Proceeds should be limited to DUI enforcement, education, treatment, and prevention and must undergo strict annual audits by each county’s Controller. 

The parameters of when to forfeit can be a matter of debate of course and we intend to supplement this memo with more details of what other states are doing in the near future.

2.         Felony Grading for Third and Subsequent DUI Offenses

Currently there are recidivist Pennsylvania Statutes that call for an increased grading, up to felony level offenses, based on the number of prior offenses.  Specifically, third or subsequent offenses for Retail Theft[9] or Theft from a Motor Vehicle[10] are increased to Felonies of the Third Degree.  With respect to DUI however, the highest grading for a third or subsequent DUI offense is a Misdemeanor of the First Degree which has a maximum penalty of 5 years.  Thus, a DUI offender may commit 7, 8, 9 DUI offenses and never be charged with anything greater than a misdemeanor unless they take a life.  Thus, whereas the dangers of DUI are well documented, a three time shoplifter faces a greater maximum penalty than a habitual DUI driver.  This defies logic.  No one dies from shoplifting whereas countless lives are taken by repeat impaired drivers.

High sanctions for DUI offenses are an important component of DUI deterrence, and the greater the penalty/social stigma resulting from a conviction, the greater the deterrent effect.  There needs to be improved distinctions between offenders based on the number of prior offenses the person has committed.  Increasing the grading of third and subsequent offenses to a Felony of the Third Degree provides for a great period of supervision, 7 years versus 5 years, and the designation of an offender as a convicted felon.  The increased penalties and the social stigma associated with a felony conviction is not only logical, but also has a deterrent effect.

How far the look back period should extend can be debated.  At minimum, three or more offenses within 10 years should be a Felony Three.


3.         Presumption of Malice for Repeat Offenders Who Kill

Far too often, homicide by vehicle while DUI offenses are committed by an offender who has a prior record for DUI.  In some cases, law enforcement can bring the much more serious Third Degree Murder charge, but that charge requires legal malice.  Malice is briefly defined as conduct exhibiting a knowing extreme indifference to the value of human life (rather than an intentional act) but there is law which essentially makes malice extremely difficult to prove.  Given the current state of the law, whether malice exists in a repeat DUI offender fatal crash is unclear.  What is clear however, is that a repeat DUI offender’s knowledge regarding the dangerous nature of his conduct is greater than that of a first time offender.

Upon conviction for a DUI, and in addition to the widely known fact that impaired driving is dangerous, every offender is required to undergo a drug and alcohol evaluation and complete any treatment deemed necessary, including classes regarding the specific dangers of driving impaired.  As a result a repeat DUI offender has a keen awareness of the risks posed to other by impaired driving such that their action getting behind the wheel impaired represents an extreme indifference towards human life. 

Based on the foregoing, there should be a legislative presumption of malice attached to repeat DUI offenders in Homicide by Vehicle-DUI cases.  Such a change targets repeat offenders who have killed, makes sense given the fact they offender clearly knew the risks, and would allow the Commonwealth to charge Murder in the Third Degree when that repeat DUI driver takes an innocent life.  Further, such a change would provide the sentencing judge with the discretion and ability to properly protect the community he or she at present does not have due to current grading and maximum sentence limitations. 

3.         Eliminate the Statute of Limitations for Homicide by Vehicle While DUI

Homicide by Vehicle cases are extremely complex and often require months if not years of investigation to properly charge and prosecute.  In recognition of this, there is no statute of limitations applicable to the offense of Homicide by Vehicle under Section 5551(5) of the Judicial Code.  Homicide by Vehicle-DUI cases under Section 3735 of the Vehicle Code, however, are subject to a 2 year statute of limitations.  Each of type of case is extremely complex, and even more so where impairment is the cause of the crash.   As such, Homicide by Vehicle-DUI should not be subject to a 2 year statute of limitations, but instead given the same no-limitation period as Homicide by Vehicle.


4.         Administrative License Suspensions

Administrative License Suspension / Revocation (ALS) laws are currently in force in 41 states and the District of Columbia.  They allow police officers to take the license of drivers arrested for DUI and/or who refuse chemical testing immediately, and provide the offender with a temporary license to allow them to make arrangements or request an administrative hearing.  In addition to the temporary license, offenders subject to an ALS can apply for an occupational limited license during the suspension period.  This not only provides a swift and certain penalty for DUI, but also provides an avenue for the offender to continuing working and remain a productive part of the community.

We must keep in mind that under our current system most defendants do not face a license suspension until conviction. Conviction can be a year or more after the offense.  Many of these people have taken active steps to deal with their issues and straightened out their lives after a year.  Yet that same group is only subject to license suspension and potential job loss at disposition and well after they may have taken positive steps to address the issues.  To be the most fair and effective, the sanction of the suspension must be swift and not delayed.

[1] 47 P.S. § 6-601.

[2] 42 Pa. C.S.A. § 6801.

[3] 53 P.S. § 4000.1715(a).

[4] 75 Pa. C.S.A. § 4909(c).

[5] 18 Pa. C.S.A. § 6501(b)(5).

[6] 75 Pa. C.S.A. § 3742.1(b)(3).

[7] AK, AL, AR, AZ, CA, CO, CT, FL, GA, IA, IL, KS, LA, MI, ME, MN, MO, MS, MT, NC, ND, NM, NY, OH, OK, OR, PA, RI, SC, TN, TX, VA, VT, WA, & WI.

[8] Robert B. Voas, et al., Vehicle Action: Effective Policy for Controlling Drunk and Other High-Risk Drivers?, 34 Accid. Analysis and prev. 263, 267 (2002)

[9] 18 Pa. C.S.A. § 3929.

[10] 18 Pa. C.S.A. § 3934.MEMORANDUM