Wednesday, December 19, 2012

Pennsylvania among few states where DUIs never rise to felony charges

Posted: Sunday, December 9, 2012 


Within two days after a Lower Makefield man entered a not guilty plea to his ninth charge of driving under the influence, three other Bucks County men pleaded guilty in Bucks County Court to their fifth, sixth and ninth DUI offenses.
The nine-time offender — Robert Oxenford, 51, of Quakertown — received the least amount of jail time — 15 to 30 months in state prison.
Richard Collins (top left), Robert Oxenford, Steven Perry (Lower left) and William Ellershaw
The other men — five-time DUI offender William Ellershaw, 41, of Bensalem, and six-time offender Steven Perry, 45, of Yardley — were each sentenced to one to three years in prison. Ellershaw will do his time in state prison, where he is serving a sentence for an unrelated crime.
The amount of time the men received is not unusual. In Pennsylvania, no matter how many times a person is convicted of driving under the influence of drugs or alcohol, the longest prison sentence a judge can impose is five years — and even that is rare, according to the Bucks County District Attorney’s Office.
That’s because Pennsylvania is one of only seven states and the District of Columbia where multiple charges of DUI alone never rise to a felony offense, which allows stricter punishment.
In most states, after a third or fourth DUI conviction, an individual faces felony charges, though time limits can be set for the subsequent offense, according to the National Conference of State Legislatures.
Some states also can charge a DUI as a felony under certain circumstances, such as a blood alcohol content that exceeds a certain elevated level, typically 0.16, if children are in the vehicle, or if the individual has a restricted, suspended or revoked driver’s license.
Drunken driving is the most prevalent crime in Bucks County, accounting for nearly a third of all prosecutions going through the criminal court system. Last year, 2,566 individuals were convicted of DUI, according to PennDOT records, down from 2,871 in 2007.
Last week, 41-year-old Richard Derik Collins entered a not guilty plea for his ninth DUI charge. This one stemmed from a traffic stop in Bensalem on Aug. 31. Pennsylvania State Police say his blood alcohol content was 0.202 at the time, 2½ times the legal limit.
The plea came while Collins was serving the last of his four years of probation for a DUI in 2007. That DUI caused a two-car accident that injured three people. Along with the probation, he was sentenced to 18 to 36 months in prison and a $2,500 fine.
LEGAL LOOPHOLES
First-time offenders made up the majority of those convicted of DUI last year, accounting for 1,659 individuals. Another 109 people in the county were convicted of DUI four or more times, down from a five-year high of 146 in 2007.
Over that five-year period, the number of individuals with four or more convictions has generally reached fewer than 110 each year.
Pennsylvania’s 2004 overhaul of the DUI law imposed stiffer fines and longer jail sentences. It was designed to hit hardest the repeat offenders and people with high blood-alcohol content levels.
The three-tiered penalty system puts drivers into categories that depend on how much alcohol has been consumed and imposes mandatory minimum sentences. The mandatory minimum jail sentence after a second DUI conviction is 90 days; for three or more convictions, it’s one year. The one-year minimum also applies to defendants whose DUI are drug-related, whose BAC are higher than 0.16 or who refuse blood tests.
But the five-year maximum jail sentence for DUI is rarely imposed since it applies only to offenses graded as first-degree misdemeanors, said Bucks County Deputy District Attorney Robert James, who oversees DUI prosecutions.
About 25 percent to 30 percent of DUIs in Bucks would be graded as first-degree charges, James said. They typically involve repeat offenders who have the highest BAC rate or drugs in their systems, he added.
Collins, Ellershaw, Perry and Oxenford each have a first-degree misdemeanor among their charges, according to online court records.
More typically, sentences in Bucks are in the range of 90 days to two years, one to two years or “sometimes,” three years, James said.
Loopholes in the state DUI law — specifically a 10-year look-back period when determining a prior offense for sentencing purposes — also gives some repeat offenders a break on grading and mandatory minimum sentences.
As a result, most offenders with second or third DUI convictions, even within 10 years, served less prison time than individuals convicted of their first DUI, James said. That happens because most second- and third-time offenders are sentenced to 90 days to one year, but given house arrest, he said. A first DUI conviction carries a mandatory three-day jail sentence.
James supports changing state law to allow a DUI to be elevated to a third-degree felony offense for habitual offenders, which increases the maximum jail sentence to seven years. James said that every month, he typically has four or five defendants with four or more DUIs in Bucks County Court.
Felony charges now apply only to DUI defendants who either kill someone — homicide by vehicle while DUI, a second-degree felony that carries a three- to 10-year jail sentence — or injure someone — aggravated assault by vehicle while DUI, a third-degree felony.
But to make a felony DUI offense an effective deterrent, the state Legislature would also have to remove the 10-year look-back provision and increase mandatory minimum sentences, he said.
Under current law, any DUI conviction that occurred 10 years before the current DUI offense cannot be counted toward grading of the crime — a first-degree versus a second-degree misdemeanor — or toward mandatory minimum sentencing.
“With DUIs, it’s not at all uncommon for there to be offenses outside 10 years,” James added.
That is what happened with the three DUI defendants who pleaded guilty and were sentenced last week.
Oxenford’s, Ellershaw’s and Perry’s latest DUI convictions counted as a second offense since the previous conviction occurred within 10 years.
Collins, though, wouldn’t get that break if convicted, since his latest DUI arrest is his third since 2005, meaning the one-year mandatory minimum is in play.
OTHER OPTIONS
Such loopholes are why some people believe that felony charges for DUI aren’t the be-all and end-all when it comes to preventing recidivism.
Bucks County Rep. Katharine Watson, R-144, is among those who believe there is no therapeutic benefit to be derived from making DUI a felony.
“The theory behind the current DUI law, rewritten and passed in 2004, is (that) elevating repeated DUI offenses to a felony charge doesn’t address or resolve the problem,” Watson said. “The PA law, unlike many other states, stresses treatment. It is not meant to be punitive.”
Watson added that the court orders and monitors the treatment program, ensuring the offender is “jailed” for any noncompliance actions.
Mother’s Against Drunk Driving believes that a mandatory car ignition interlock for first-time DUI offenders is the best preventative measure. The device is designed to prevent the starting of a vehicle if a certain level of alcohol is detected on the driver’s breath. Pennsylvania requires an interlock system after the second and subsequent DUI conviction, and New Jersey requires it for defendants convicted with high BAC levels.
MADD favors felony charges for repeat offenders.
“MADD does support felony charges for three or more DUI convictions because it’s an important tool to give the judicial system more options on sanctions,” the organization’s president, Jan Withers, said. “Otherwise their hands are tied.”
Withers added that in Maryland, where she lives, most DUI offenders — even repeat offenders — don’t receive prison time. “It’s amazing,” she added.
George Geisler believes that DUI courts that operate like special drug or veteran courts are a better option. He’s the law enforcement director for the Pennsylvania Driving Under the Influence Association, a professional organization working to address the DUI problem.
Research suggests that 60 percent of habitual DUI offenders have mental health issues, Geisler said, which is something that DUI court addresses by providing closely supervised and mandatory behavior treatment. Only 13 of 67 Pennsylvania counties have DUI courts for repeat offenders, and they have a high success rate, he said.
“The criminal justice system is not getting the repeat offenders the help they need so they don’t repeat offend,” Geisler added. “The treatment is the key to preventing re-offending.”

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