DUI:  Ten Year Rule Applies from Conviction or Commission of Prior Offense

Commonwealth v. Mock, 186 A.3d 434 (Pa. Super. 2018), allocatur granted Dec. 5, 2018, appeal docket 68 MAP 2018

Mock was arrested for DUI on July 10, 2016 and charged with, inter alia, DUI-highest rate as a second offense.  Mock had previously committed a DUI on June 3, 2006 for which he was convicted on March 27, 2007.

The Motor Vehicle Code provides:

§ 3806. Prior offenses

(a) General rule.—Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean any conviction for which judgment of sentence has been imposed … before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance);

(b) Timing.—

(1) For purposes of sections … 3803 (relating to grading), 3804 (relating to penalties) …, the prior offense must have occurred:

(i) within 10 years prior to the date of the offense for which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the defendant is being sentenced[.]

75 Pa.C.S.A. § 3806 (emphasis added).

The trial court refused to dismiss the second offense charge against Mock, interpreting Section 3806 to mean that:

any conviction, for which judgment of sentence has been imposed, within ten years prior to the date of the current DUI offense, shall be considered for grading and sentencing purposes of a current DUI offense. To determine whether a prior DUI offense … is within the ten year look[-]back period of the current DUI offense, this [c]ourt looks to the current DUI offense date and the prior offense conviction date for which judgment of sentence has been imposed. The actual date of the prior DUI offense need not be within the statutorily mandated ten year look[-]back period.

Slip Op. at 4. Superior Court affirmed.  It reasoned that subsection (a) of section 3806 is a general rule that defines prior offense in terms of conviction.  Subsection (b) applies only to a subset of prior offenses and has a ten year limitation, but does not change the meaning of prior offense as a reference to the conviction date.

Judge Strassburger dissented.  He agreed with the majority that subsection (a) is a general rule, but disagreed that subsection (b) relies on the subsection (a) use of the term prior offense.  He focused on the term “Except as set forth in subsection (b)” as an exclusionary phrase that means subsection (a) yields to the subsection (b) use of the term “prior offense”.  Thus, he interpreted the subsection (b) use of the term “offense” to mean the date on which the offense occurred.

The Court granted allocatur on the following issue:

Did the Superior Court erroneously interpret 75 Pa.C.S. § 3806 as providing that an offender who commits a prior driving under the influence (“DUI”) offense more than ten years before his commission of a present DUI offense, but is convicted of the prior DUI offense within ten years of his commission of his present DUI offense, has a “prior offense” for purposes of the grading of, and/or sentencing on, the present DUI offense?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.