How Pennsylvania "Counts" the Number of DUI Offenses

You can have more than one DUI under Pennsylvania and have it be treated as a first offense. I'm writing this today because people get confused over what is a "lifetime offense" and what is a "prior offense". I had to answer this question twice today, actually.

The simple version is this: if you were sentenced on a DUI more than ten years before you were charged with a new DUI offense, the new DUI offense will be treated as a first offense. There's a lot more to it than that, so click through for more details.



DUI grading in PA depends on two different sections of the Motor Vehicle Code being read together to get a full understanding of the law. I occasionally, maybe once or twice a year, help a client whose arresting officer only reads part of the DUI law when filing charges. Sometimes these are officers who are very experienced. One was a well-known "Top Gun" DUI police officer in York County who has arrested hundreds (thousands?) of people for DUI during a long career. Nobody is perfect, after all.

The DUI law is Title 75 of Pennsylvania's laws and the DUI law is at Chapter 38. The sections involved here are 75 Pa.C.S. §3803 and 75 Pa.C.S. §3806.

75 Pa.C.S. §3803 provides for grading of offenses - whether a DUI is a misdemeanor or a felony. Here is a link to the entire statute.

Here is a small sample of it to simplify things, and I highlighted the language we need to focus on related to prior offenses:

(a)  Basic offenses.--Except as provided in subsection (b):

(1)  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).

(2)  An individual who violates section 3802(a) and has two prior offenses commits a misdemeanor of the second degree.

(3)  An individual who violates section 3802 and has three or more prior offenses or has previously been convicted of a violation of section 3735 (relating to homicide by vehicle while driving under influence) commits a felony of the third degree."


So what is a "prior offense"? Well, it has a specific and special meaning under the DUI law. A "prior offense" is not the same as "any DUI offense you ever had".

What is it then? Well, we have to look at 75 Pa.C.S. §3806 which is titled "Prior Offenses".

75 Pa.C.S. §3806 says, basically, that the number of offenses as used in section 75 Pa.C.S. §3803 (grading) is basically any offense that the defendant was sentenced on in the ten years leading up to the current offense as well as any offense that the defendant resolved by going into a pretrial diversionary program like Accelerated Rehabilitative Disposition ("ARD") or (in Maryland) a Probation Before Judgment ("PBJ").

Here is a link to the entire statute.


Let's try an example:

Let's say Defendant Smith is arrested on July 1, 2019 for a DUI in York County, Pennsylvania. He had a DUI arrest on January 1, 2001 and went into the ARD program on October 1, 2001. He had a DUI arrest on July 1, 2009 and was sentenced as part of a plea agreement on December 15, 2009. Mr. Smith also has an arrest for DUI on August 1, 2019.

How should his third lifetime DUI be charged?

The ARD admission on October 1, 2001 is more than 10 years before the July 1, 2019 DUI. It does not count.

Mr. Smith's second DUI arrest on July 1, 2009 is ten years before his arrest date for the newest DUI (August 1, 2019), but that is not the way the law counts DUIs. The 10 years starts from the disposition date, not the arrest date. The 10 years for the 2009 DUI runs out on December 15, 2019. What that means is Mr. Smith is facing a second DUI in 2019.

The 2001 case is off the books, so to speak. The 2009 case is not, since the sentencing date was less than ten years from the arrest date in the new case.

Clear? Well, the Pennsylvania Legislature has changed the law for "prior offense" because there were problems with the way it was written before that they viewed as "loopholes" for defendants. It was a major area of DUI litigation in the appellate courts for a few years. This is how the dust has settled.

Even with the law changing, there are still times when it is interpreted incorrectly by police and people in court system. To learn more about whether this is an issue that affects you, please call our office at (717) 848-8455 to discuss your case.

We represent defendants in York County and Bedford County in Pennsylvania, and we look forward to helping you.