I previously blogged about the Monumental Firearms Law related Decision from the Superior Court in relation to DUI. In Commonwealth v. Musau, 2013 PA Super 159, the Superior Court held that an individual who, during a first or second DUI, refused to provide blood or breath testing, could only be punished by a maximum of six (6) months in jail, although it is graded as a misdemeanor of the 1st degree. As the maximum sentence that could be imposed was six months, although graded as a misdemeanor of the 1st degree, such a conviction would not trigger the federal disability, pursuant to 18 U.S.C. 922.
While the Commonwealth filed a Petition for Review with the Pennsylvania Supreme Court regarding the Superior Court’s decision in Musau, which was docketed at 510 EAL 2013, the General Assembly acted and amended the law, which was signed by former Governor Corbett on October 27, 2014. As a result, SB 1239 effectively changed section 3802, so that the maximum sentence that can be imposed upon an individual who, during a first or second DUI, refuses to provide blood or breath testing, is five years, which consistent with most misdemeanors of the first degree.
BUT, the PA Supreme Court took no action on the appeal of the Superior Court’s decision in Musau. That is until June 10, 2015, when the Court DENIED the Commonwealth’s Petition for Review. This means that the Superior Court’s decision in Musau is still controlling.
Therefore, if you or a family member were convicted of a first or second DUI, where you/they refused to submit to chemical testing, you may have the ability to petition the court to have your conviction properly reflect the sentencing, which could not be punished by more than six (6) months and therefore would not trigger a state or federal firearms disability. Under the Post-Conviction Relief Act, time is LIMITED.
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