DUI sentencing requirements; whether sentencing court is required to impose a mandatory maximum sentence pursuant to 75 Pa.C.S. § 3804(d) when it sentences a DUI offender in need of further treatment to County Intermediate Punishment pursuant to 42 Pa.C.S. § 9763

Com. v. Popielarcheck, 151 A.3d 1088 (Pa. Super. 2016), allocatur granted Aug. 29, 2017, appeal docket 41 WAP 2017


Supreme Court granted allocatur to review Commonwealth’s challenge to Superior Court’s affirmance of trial court’s imposition of sentence for driving under the influence (DUI) based on interpretation of apparently conflicting statutory sentencing provisions.

Defendant pled guilty to two counts of DUI, second offense in 10 years, punishable under the DUI statute, 75 Pa.C.S. § 3804(d), by a maximum sentence of five years, but also subject to County Intermediate Punishment (CIP), an alternative sentencing scheme under the Sentencing Code, 42 Pa.C.S. § 9721.

The Commonwealth argued that the trial court was required as a matter of law to sentence defendant to the statutorily available 5 year maximum sentence pursuant to 75 Pa.C.S. § 3804(d) because she was deemed to be “in need of additional treatment,” even though the trial court had the discretion to sentence her to CIP in lieu of the applicable mandatory minimum sentence. Superior Court held that by its plain language, the mandatory maximum sentence provision in Section 3804(d) applies only where a defendant “is sentenced pursuant to [that] chapter.” 75 Pa.C.S. § 3804(d). However, defendant in this case was not sentenced pursuant to Chapter 38, she was sentenced under an alternative sentencing scheme to CIP as authorized in the Sentencing Code. Therefore, neither the mandatory minimum nor maximum provisions of our DUI statute apply and the sentence imposed was not illegal.

Superior Court reasoned:

At first glance, the statutes permitting CIP sentences and the statutes mandating minimum DUI sentences may seem inconsistent. However, as this Court has recognized, the legislature adopted CIP “to give judges another sentencing option” specifically one that “would lie between probation and incarceration with respect to sentencing severity; to provide a more appropriate form of punishment/treatment for certain types of non-violent offenders; to make the offender more accountable to the community; and to help reduce the county jail overcrowding problem while maintaining public safety.” Moreover, Sections 9721 and 9763 specifically permit trial courts to consider CIP for DUI offenders for first, second, or third offenses, in spite of any mandatory minimum sentence elsewhere prescribed by law. 42 Pa.C.S. §§ 9721; 9763. As this Court has previously recognized, the DUI statute and the Sentencing Code may be read together to permit a trial court to avoid a mandatory minimum sentence in favor of a sentence of CIP for certain qualified offenders.

151 A.3d at 1092 (footnote omitted).

For more information, contact Kevin McKeon or Dennis Whitaker.