Friday, August 24, 2012

Will District Attorneys Use the Sentencing Enhancement for DUI Offenders That Had a Juvenile in Car?

As discussed in a prior blog post, on July 9, 2012, an amendment to the DUI law became effective that increased both the grading and the penalties for a DUI charge if a “minor under 18 years of age was an occupant in the vehicle when the violation occurred.”  Basically, if a person charged with a DUI has a juvenile in the vehicle, then the district attorney has to make a decision whether or not to seek the increased penalties for the DUI offense.  People probably assume that a district attorney would always seek the maximum penalty possible in such a situation, but, as with almost any decision, there are benefits but also costs that must be considered. 

What Are the Costs?
The increased DUI penalties come with the cost of giving the DUI defendant the right to a jury trial.  Generally, most first and second offense DUI defendants do not have the right to have the case heard by a jury but instead are only entitled to a trial before a judge.  Most experienced DUI defense attorneys would prefer to have a trial by jury as opposed to a trial by judge.  A jury trial increases the amount of time and thereby increases the expense of prosecution of a DUI case for the district attorney.  One could respond that the possibility of a jury trial is not much of a cost since the majority of criminal cases do not make it to a trial as they are resolved via a plea agreement between the prosecution and the defense.  However, when the district attorney seeks increased penalties, a defendant is more likely to proceed to a trial to avoid those penalties, and the DUI defendant would prefer to “roll the dice” at a trial before a jury.  The jury trial issue would not have an impact on second offense DUI defendants charged with having the highest rate of alcohol or three time DUI offenders as those persons are already entitled to a jury trial. 

What Are the Benefits?
Simply stated, the amendment to the DUI law gives the district attorney more power to control a sentence that is imposed on a DUI defendant.  The problem with the amendment is that the power given to the district attorney is relatively minor as the amendment does not impose sentences that are much greater than the mandatory minimum sentences already required for DUI offenses.  For example, if the enhancement is imposed on a first offense of DUI, the mandatory fine is $1,000.00 and completion of 100 hours of community service is required.  A first offense DUI in the third or highest range of penalties already requires a mandatory minimum fine of $1,000.00.  If the juvenile passenger enhancement is imposed on a second offense, the mandatory sentence includes a $2,500.00 fine and not less than 1 month nor more than 6 months incarceration.  Without seeking the sentencing enhancement, a two-time DUI offender in the middle range of penalties already faces a mandatory minimum of 1 month incarceration, and a two- time DUI offender in the highest range of penalties faces a 3 month minimum period of incarceration.  In some situations, the penalties imposed after invoking the juvenile passenger enhancement would result in increased mandatory penalties, but, in many other situations, the penalties are the same and sometimes even less than the mandatory minimum penalties already imposed.  Therefore, the district attorney would only receive a benefit when invoking the enhancement in certain DUI cases.

Will It Be Used?
I believe that the DUI sentencing enhancement for having a minor passenger in the vehicle was created more by Pennsylvania politicians to appease constituents than actually punish violators of the law and deter such conduct.  As discussed above, the amendment does not substantially increase the penalties for DUI offenses.  Also, district attorneys routinely already use other charges, such as Endangering the Welfare of a Child or Reckless Endangerment, in DUI cases in a minor was an occupant.  Therefore, the current DUI enhancement was not needed to give the district attorney another way to punish DUI offenders.  The district attorney will have to consider the costs and benefits associated with invoking the DUI sentencing enhancement.  Generally speaking, an experienced DUI defense attorney would much rather proceed to a jury trial rather than a bench trial.

Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offenese, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION

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