While DUI is normally a misdemeanor offense, there are situations where drunk driving charges can rise to the level of a felony crime

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.

While drunk driving (driving under the influence/DUI) is a serious criminal offense in Pennsylvania, it is normally not charged as a felony offense and therefore does not subject a person to a state prison sentence in most situations (exception: repeat offenders). Our criminal defense law firm, with its main office in Philadelphia and 2nd office in Moorestown, NJ, handles a large volume of drunk driving cases within the Commonwealth. Most of these cases involve issues such as the admissibility of blood or a person’s breathe sample, along with whether the Commonwealth (prosecution) can establish beyond a reasonable doubt that the individual was impaired at the time of their operation of the vehicle or car.


Drunk Driving—Misdemeanor Charges


Drunk driving is charged as an ungraded misdemeanor when it is the person’s 1st or 2nd offense regardless of whether the incident involves a high blood alcohol concentration (BAC) or an accident under Section 3802 (a)(1). It is a misdemeanor of the 1st degree in any situation where it is the person’s 3rd offense. Most first time offenders are eligible for the Accelerated Rehabilitative Disposition Program (ARD) but this requires an agreement from the prosecution (District Attorney) and it’s important to understand that every case is different; never assume you are eligible for ARD.


While DUI is normally a misdemeanor offense, there are situations where drunk driving charges can rise to the level of a felony offense. As I have written in the past there is a substantial difference between a misdemeanor and a felony offense in any jurisdiction including Pennsylvania or New Jersey. A felony conviction subjects a person to a lifelong stigma, which in most cases can’t be removed and will continue to follow the person the remainder of their life.


DUI Felony Offenses


Aggravated Assault By Vehicle While Driving Under the Influence is a serious drunk driving charge, which is graded as a felony of the 2nd degree in Pennsylvania under Section 3735.1 (Title 75 – Vehicle Code). A person is guilty of this offense if he or she negligently causes serious bodily injury to another as a result of drunk driving (violation of Section 3802). It’s important to understand that if you are charged with this offense, the prosecution must not only establish the elements of this offense but must also prove you guilty of the underlying drunk driving offense. All of the defenses which I discuss in my book, Five Ways to Fight and Win Your Pennsylvania DUI, provide a strong strategy to dispute these charges and I encourage you to take some time to review it. In addition to this felony DUI charge, there are situations where drunk driving causes death of another. The elements of Homicide By Vehicle While Driving Under the Influence are the same as aggravated assault with the obvious difference being that the act causes the death of another. There is however, a major difference between aggravated assault and homicide DUI. Homicide DUI subjects a person to a mandatory minimum 3 year state prison sentence and a consecutive term for each victim killed as a result of the drunk driver’s actions (Section 3735, Title 75).


Non DUI Felony Driving Related Offenses


In addition to drunk driving charges involving serious injury or death, there are also criminal offenses in Pennsylvania for motor vehicle accidents involving these types of consequences. A person, who either recklessly or negligently causes the death of another, while violating any law of Pennsylvania or the Municipality, commits a felony of the 3rd degree and a potential sentencing enhancement if the incident occurs in an active work zone. If the incident doesn’t cause death but serious bodily injury, the individual commits a felony of the 3rd degree along with a sentencing enhancement (2 years max) if it occurs in an active work zone. Unlike homicide by vehicle involving a drunk driver, there is no mandatory minimum 3 year state prison sentence for homicide by vehicle with no issue with regards to the intoxication of the operator.


For more information on drunk driving charges I encourage you to visit our free download section.

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