In Pennsylvania, a third driving under the influence (DUI) conviction carries different penalties depending on the individual’s level of intoxication. A general impairment DUI involves a blood alcohol concentration (BAC) of 0.08 to 0.099 percent; a high BAC DUI a blood alcohol concentration of 0.10 to 0.16 percent; and a highest BAC DUI a blood alcohol concentration of 0.16 percent or more.
The penalties for a third general impairment DUI include between 10 days and two years incarceration; a fine between $500 and $5,000; alcohol highway safety school; treatment when ordered; one-year driver’s license suspension and one-year installation of an ignition interlock device (IID). A third general impairment DUI is charged as a second-degree misdemeanor. The Accelerated Rehabilitative Disposition (ARD) and Occupational Limited License (OLL) programs are not options for an individual with a third DUI.
Penalties for Higher Level Third DUIs
Penalties for a third high BAC DUI include between 90 days and five years of incarceration; a fine between $1,500 and $10,000; alcohol highway safety school; treatment when ordered; 18-month license suspension; and one-year installation of an IID, according to the Pennsylvania Department of Transportation. A third high BAC DUI is charged as a first-degree misdemeanor.
Penalties for a third highest BAC DUI include between one and five years of incarceration; a fine between $2,500 and $10,000; alcohol highway safety school; treatment when ordered; an 18-month driver’s license suspension; and one-year installation of an IID. A third highest BAC DUI is charged as a first-degree misdemeanor.
Understanding Which BAC Counts
The BAC level for the third DUI is the BAC that determines the individual’s plea offer and sentence. The BACs that the individual had in the two prior DUIs do not matter. It only matters that the individual has had two prior DUI convictions. If the individual had two prior DUI convictions for high BAC DUIs, but their third DUI was a general impairment DUI, they will be charged with a third general impairment DUI.
If the individual had a general impairment DUI for their first DUI, a highest BAC DUI for their second offense, and a general impairment DUI for their third DUI, they will be charged with a third general impairment DUI in the current case.
Underage Pennsylvania DUI and Test Refusal
Pennsylvania considers a minor, an individual under 21, to be driving under the influence if they have a BAC of 0.02 percent or above, according to Pennsylvania Consolidated Statutes (PCS) Chapter 38. Penalties for a third underage DUI include 90 days to five years of incarceration; a fine between $1,500 and $10,000; alcohol highway safety school; treatment when ordered; an 18-month driver’s license suspension; and a one-year IID installation.
A minor or an adult will be subject to severe penalties for a third refusal to take a blood or breath test. These include between one year and five years of incarceration; a fine between $2,500 and $10,000; alcohol highway safety school; treatment when ordered; an 18-month driver’s license suspension; and a one-year IID installation.
Prior DUI Look-Back Period
The look-back period for prior DUIs is 10 years, according to PCS Chapter 38. Prior DUIs count toward the two DUIs prior to the third, current offense if they occurred within 10 years prior to the date of the offense for which the defendant is being sentenced. If the DUI offender is sentenced for two or more offenses in the same day, the previous offenses are considered prior offenses.
For example, when an offender committed a second DUI, but was not serving jail time because they were out on bail and remained unsentenced and then got a new DUI charge, they could be sentenced for the second and third DUI in a sentencing hearing following the third DUI arrest. The second DUI would be considered a prior offense.
Do Out-of-state DUIs Count?
An out-of-state DUI counts if the DUI laws of that state are substantially similar to Pennsylvania’s DUI laws. Pennsylvania’s DUI laws are relatively strict. They define a DUI as imbibing a sufficient amount of alcohol such that the defendant is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. Pennsylvania’s DUI laws also state that a DUI is having a BAC of 0.08 percent or above after an individual has driven, operated or been in actual physical control of the movement of the vehicle, according to PCS Chapter 38.
Yet there are differences between Pennsylvania’s DUI laws and drunk driving laws in other states. Pennsylvania law defines a vehicle as a device that can be transported or drawn upon a highway, according to PCS Title 75. This definition does not include boats.
An offense involving operating a watercraft under the influence might be defined as a DUI in another state, but will not count as a prior DUI in Pennsylvania. An individual with an out-of-state DUI involving a machine other than a standard car, truck or SUV should review the many amendments to PCS Title 75. In the last 10 years, Pennsylvania has added numerous machines to the definition of “vehicle,” including golf carts.
A Fourth DUI Offense Can Be a Felony
In 2018, Pennsylvania amended its laws to allow a fourth DUI to be charged as a third-degree felony. The maximum sentence for this type of felony is seven years in prison. A fourth DUI can be charged as a felony no matter what the individual’s BAC was.
The penalties for a fourth general impairment DUI or a fourth highest BAC DUI are equal to those for a third DUI of those respective types, except for the maximum seven-year prison sentence. The penalties for a fourth high BAC DUI include one to seven years incarceration; a fine between $1,500 and $15,000; alcohol highway safety school; substance abuse treatment when ordered; and an 18 month driver’s license suspension.
DUI Court Is an Option
An individual charged with two or more DUI arrests may be eligible for DUI Court, according to Allegheny County. DUI Court is a diversion program available in some counties in Pennsylvania. It is recommended for individuals who choose alcohol treatment and regular check-ins with the court over incarceration.
An individual is not eligible to participate in DUI Court if they are currently charged with or have been convicted of a crime of violence within the past 10 years. An individual who does not complete alcohol treatment or who commits a new offense while in DUI Court will be dropped from the DUI Court program back into criminal court.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.