On June 28, 2013, the Superior Court of Pennsylvania issued a decision in the matter of Commonwealth v. Musau, 2013 PA Super 159, which has resulted in a monumental impact on individuals who, during a first or second DUI, refuse to provide blood or breath testing. Although it is a misdemeanor of the 1st degree, the conviction of which would typically federally prohibit the individual from purchasing and possessing firearms and ammunition, the Court found that the maximum sentence allowed by law is six (6) months, which would not trigger the federal disability, pursuant to 18 U.S.C. 922.
In Musau, it was undisputed that it was Mr. Musau’s second DUI and that when he was asked to submit to chemical testing, he refused. Accordingly, he was cited under 75 PACS 3802(a) for being under general impairment (his impairment level could not be determined, because of the refusal) and because of his refusal, the District Attorney sought for him to be sentenced pursuant to 75 PACS 3803(b)(4), which provides that where an individual refuses to submit to chemical testing, the offense is to be graded as a misdemeanor of the 1st degree. Pursuant to 18 PACS 106(b)(6), (e), misdemeanors of the first degree are generally punishable by five years. This is important, as any state crime of misdemeanor nature that can be punished by more than two (2) years in jail is federally prohibiting, pursuant to 18 USC 922.
Here is where the statutory language takes an unusual twist. Pursuant to 75 PACS 3803(a), “An individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804 (relating to penalties).” Accordingly the Court found that although Section 3803(b)(4) mandates that the grading for a first or second offense DUI, where there is refusal to submit to chemical testing, is a misdemeanor of the 1st degree, a court cannot sentence it by more than six (6) months. Specifically, the Court held “regardless of the fact that refusal to submit to blood alcohol testing results in the grading of the offense as a first degree misdemeanor, the maximum sentence for a first or second DUI conviction is six months’ imprisonment.” This means that a second offense DUI, where an individual refused chemical testing, cannot trigger the federal disability pursuant to 18 USC 922, because it cannot be punished by more than two (2) years in jail.
This means that anyone who fits the above criteria has sixty (60) days under the Post Conviction Relief Act (PCRA) from June 28, 2013, to petition the court for relief, without the ability of the Commonwealth to claim that such is barred by the 1 year post-conviction statute of limitations to bring a PCRA challenge. If an individual does not challenge within 60 days of the Court’s decision, the Commonwealth is likely to argue that such is precluded by the PCRA; thereby, requiring counsel to argue the illegality of the sentence, which is more difficult than petitioning during the 60 day window.
Thus, if you were convicted of a first or second DUI, where you refused to consent to chemical testing, or know anyone in this situation, you should immediately call our office.
While the Commonwealth has appealed to the Supreme Court, it is questionable whether the Supreme Court will hear the appeal. Nevertheless, in the interim, it provides an interesting issue for individuals, who find themselves pulled over for a second DUI. Should you refuse to submit to chemical testing? By doing so, you will automatically lose your drivers license for one year; however, if you were to be chemically tested and the results show that you were in the highest rate blood alcohol content (BAC), which is 0.16%, you would forever be precluded from possessing or purchasing firearms or ammunition. It has been my experience that 9 out of 10 individuals, who are pulled over for a second DUI, have a BAC of .16% or higher…
If you, a family member or a friend have lost your Second Amendment Rights because of a first or second DUI, where you/they refused to submit to chemical testing, contact us immediately so that we can file a petition on your behalf to seek relief.