Last week the Superior Court issued a decision in Commonwealth v. Musau, 2013 Pa.Super. 159, that resolved a little-noticed conflict in PA’s DUI sentencing laws. Mr. Musau had been convicted of his second DUI in ten years despite his refusal to submit to a blood test. Normally, his refusal would change the maximum possible sentence he could receive, from six months in jail—the maximum for a 2nd conviction under the general impairment provision of the DUI law—to five years in jail—the maximum for a 2nd conviction involving a BAC of over .16 or drug use.
The Superior Court held that the refusal increased the gradation of the DUI from an ungraded misdemeanor to a first-degree misdemeanor, but the language of the DUI sentencing statute, 75 Pa.C.S. sec. 3804 (a)(1), established a specific statutory maximum of six months. Based on the language of this statute, the Court held that the legislature must have intended to create an exception to the five-year maximum normally associated with first-degree misdemeanors.
As a colleague of mine pointed out, a driver being stopped for a 2nd DUI offense is now better off refusing chemical testing if the driver suspects his or her BAC is over .16 or had recently used drugs. That assumes, however, that the driver is willing to accept the one-year license suspension he would receive for refusing the test.
Look for this one to be appealed to the state Supreme Court. If that fails, I’m sure the General Assembly will likely amend the DUI law to eliminate this quirk.