DUI Statute

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3801. Definitions

The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Adult." An individual who is at least 21 years of age.

"Ignition interlock system." A system approved by the department which prevents a vehicle from being started or operated unless the operator first provides a breath sample indicating that the operator has an alcohol level less than 0.025%.

"Minor." An individual who: is under 21 years of age. 2003, Sept. 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004.

3802 Driving under influence of alcohol or controlled substance

(a) General impairment.

(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. 3802

(b) High rate of alcohol.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(c) Highest rate of alcohol.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.;

(d) Controlled substances.-An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64),' known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3) The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4) The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. 7303 (relating to sale or illegal use of certain solvents and noxious substances).

(e) Minors. -A minor may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the minor's blood or breath is 0.02% or higher within two hours after the minor has driven, operated or been in actual physical control of the movement of the vehicle.

(f) Commercial or school vehicles. -An individual may not drive, operate or be in actual physical control of the movement of a commercial vehicle, school bus or school vehicle in any of the following circumstances:

(1) After the individual has imbibed a sufficient ' amount of alcohol such that the alcohol concentration in the individual's blood or breath is:

(i) 0.04% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a commercial vehicle other than a school bus or a school vehicle.

(ii) 0.02% or greater within two hours after the individual has driven, operated or been in actual physical control of the movement of a school bus or a school vehicle.

(2) After the individual has imbibed a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

(3) While the individual is under the influence of a controlled substance or combination of controlled substances, as defined in section 1603 (relating to definitions).

(4) While the individual is under the combined influence of alcohol and a controlled substance or combination of controlled substances, as defined in section 1603.

(g) Exception to two-hour rule.-Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

(1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

2003, Sept. 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004. Amended 2006, May 11, P.L. 155, No. 36, 2, imd. effective.

135 P.S. 780-101 et seq.

3803. Grading

(a) Basic offenses.-Notwithstanding the provisions of 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 more than one prior offense commits a misdemeanor of the second degree.

(b) Other offenses.

(1) An individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person or in damage to a vehicle or other property, or who violates section 3802(b), (e) or (f) and who 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.

(2) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has no prior offenses 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.

(3) An individual who violates 'section 3802(a)(1) where there was an accident resulting in bodily injury, serious bodily injury or death of any person' or in damage to a vehicle or other property, or who violates section 3802(b), (e) or (f) and who has more than one prior offense commits a misdemeanor of the first degree.

(4) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree.

2003, Sept. 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004. Amended 2004, Nov. 29, P.L. 1369, No. 177, 2, imd. effective.

3804. Penalties

(a) General impairment.-Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo a mandatory minimum term of six months' probation;

(ii) pay a fine of $300;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

(2) For a second offense, to:

(i) undergo imprisonment for less than five days;

(ii) pay a fine of not less than $300 nor more than '- $2,500;\

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than ten days;

(ii) pay a fine of not less than $500 nor more than $5,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(b) High rate of blood alcohol; minors; commercial vehicles and school buses and school vehicles; accidents.-Except as set forth W subsection (c), an individual who violates section 3802(a)(1) where there was an accident resulting in bodily injury serious bodily. injury or death of any person or damage to a vehicle or other property or who violates section 3802(b), (e) or (f), shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 48 consecutive hours;

(ii) pay a fine of not less than $500 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 30 days;

(ii) pay a fine of not less than $750 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third offense, to

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $1,500 nor more than $10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(4) For a fourth or subsequent offense, to:

(i) undergo imprisonment of not less than one year;

(ii) pay a fine of not less than $1,500 nor more than $10,000; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(c) Incapacity; highest blood alcohol; controlled substances. An individual who violates section 3802(a)(1) and refused testing of blood or breath or an individual who violates section 3802(c) or (d) shall be sentenced as follows:

(1) For a first offense, to:

(i) undergo imprisonment of not less than 72 consecutive hours;

(ii) pay a fine of not less than $1,000 nor more than $5,000;

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol, treatment requirements imposed under sections 3814 and 3815.

(2) For a second offense, to:

(i) undergo imprisonment of not less than 90 days;

(ii) pay a fine of not less than $1,500;.

(iii) attend an alcohol highway safety school approved by the department; and

(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(3) For a third or subsequent offense, to:

(i) undergo imprisonment of not less than one year,

(ii) pay a fine of not less than $2;500; and

(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(d) Extended supervision of court.-If a person is sentenced pursuant to this chapter and, after the initial assessment required by section 3814(1), the person is determined to be in need of additional treatment pursuant to section 3814(2), the judge shall impose a minimum sentence as provided by law and a maximum sentence equal to the statutorily available maximum. A sentence to the statutorily available maximum imposed pursuant to this' subsection may, in the discretion of the sentencing court, be ordered to. be, served in a county prison, notwithstanding the provisions of 42 Pa.C.S. 9762 (relating to sentencing proceeding; place of confinement).

(e) Suspension of operating privileges upon conviction.

(1) The department shall suspend the operating, privilege of an individual under paragraph

(2) upon receiving a certified record of the individual's conviction of an adjudication of delinquency for:

(i) an offense under section 3802; or

(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver's License Compact).

(2) Suspension under paragraph (1) shall be in accordance with the following:

(i) Except as provided for in subparagraph (iii), 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.

(ii) 18 months for a misdemeanor of the first 'degree under this chapter.

(iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.

(iv) For suspensions imposed under paragraph (1)(ii), notwithstanding any provision of law or enforcement agreement to the contrary, all of the following apply:

(A) Suspensions shall be in accordance with Subchapter D of Chapter 15 (relating to the Driver's License Compact).

(B) In calculating the term of a suspension for an offense that is substantially similar to an offense enumerated in section 3802, the department shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under section 3802(a)(2).

(v) Notwithstanding any other provision of law or enforcement agreement to the contrary, the department shall suspend the operating privilege of a driver for six months upon receiving a certified record, of a consent decree granted under 42 Pa.C.S. Ch., 63 (relating to juvenile matters) based on section 3802.

(f) Community service assignments:-In addition' to the penalties set forth in this section, the sentencing judge may impose up to 150 hours of community service. Where the individual has been ordered to drug and alcohol treatment pursuant to sections 3814 and 3815, the community service shall be -certified by the drug and alcohol treatment program as consistent with any drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(fl) Victim impact panels.-

(1) In addition to any other penalty imposed under this section, the court may order a person who violates section 3802 to attend a victim impact panel program:

(2) A victim impact panel program shall provide a non-confrontational forum for driving under, the influence crash victims, their family members, their friends:' or other pertinent persons to speak to' driving under the influence offenders about the impact of the crash Victims lives and on the lives of families, friends and neighbors.

(3) A victim impact panel shall be administrated through the local office of probation and parole or; other office as the court shall determine and,. shall be operated in consultation with the Mothers Against Drunk Driving - Pennsylvania State Organization.

(4) A victim impact panel program may assess reasonable participation fee to achieve program self sufficiency but may not operate for profit. The department shall establish an acceptable range of fees.

(5) The department shall develop standards and incentives to encourage counties to establish victim pact panel programs: In developing these standards, the department shall establish and chair a coordinating committee among pertinent agencies and organizations, including the Department of Health the Pennsylvania Commission on Crime and Delinquency, the Office of Victim Advocate, the Administrative Office Pennsylvania Courts, county officials, the Mothers Against Drunk Driving - Pennsylvania State Organization and the Pennsylvania DUI Association. The standards shall address items including all of the following:

(i) Prototype design and structure standards for victim impact panels.

(ii) Training standards and curricula for presenters, facilitators and administrators.

(iii) Operations policy and guidelines manual.

(iv) Evaluation standards, design and structure al-. lowing for the tracking and analysis of recidivism data.

(v) Standards for counseling and debriefing activities for victim presenters.

(vi) Standards for reimbursing reasonable costs to victims . for participation in panels.

(vii) Assistance to counties through coordinating potential Federal and State funding streams to carry out this subsection and to assist counties as may be needed.

(g) Sentencing guidelines.-The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalties of this section.

(h) Appeal.-The Commonwealth has the right to appeal directly to the Superior Court any order of. court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

(i) First class cities. Notwithstanding the provision for direct appeal- to the Superior Court, if, in a city of the first class,' a person appeals from a judgment of sentence under this section from the municipal court to the common pleas court for a trial de novo, the Commonwealth shall have the right to appeal directly to the Superior Court from the order of the common pleas court if the sentence imposed is in violation of this section. If, in a city of the first class, a person appeals to the court of common pleas after conviction of a violation of this section, in the municipal court and thereafter withdraws his appeal to the common pleas court, thereby reinstating the judgment of sentence of the municipal court, the Commonwealth shall have 30 days from the date of the withdrawal to appeal to the Superior Court if the sentence is in violation of this section.

(j) Additional conditions. In addition to any other penalty imposed under law, the court may sentence a person who violates section 3802 to any other requirement or condition consistent with the treatment needs of the person, the restoration of the victim to preoffense status or the protection of the public.

(k) Nonapplicability. Except for subsection (e), this section shall not apply to dispositions resulting from proceedings under 42 Pa.C.S. Ch. 63 (relating to juvenile matters).

2003, Sept. 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004. Amended 2004, Nov. 29; P.L. 1369, No. 177, 3, imd. effective; 2006, May 11, P.L. 155, No. 36, 3, imd. effective.

Historical and Statutory Notes

The General Assembly, in Act 2006, May 11, P.L. 155, No. 36, found and declared that:

(1) Driving under the influence of alcohol or a controlled substance is a crime with thousands of victims in' this Commonwealth.

(2) Evidence- exists that victim impact panels are effective in reducing offender recidivism and restoring balance to victims' lives in driving under the influence cases.

(3) The purpose of this act is to recognize the value of victim impact panels at reducing offender recidivism and addressing victims' issues, to encourage counties to implement the panels and to establish a coordinating committee to provide standardized guidance for the panels.

3805. Ignition Interlock

Text of subsec. (a) effective until June 30, 2007.

(a) General rule.-If a person violates section 3802 (relating to driving under influence of alcohol or con-trolled substance) and has a prior offense as defined in section 3806(a) (relating to prior offenses) or if a person has had their operating privileges suspended pursuant to section 1547(b.l) (relating to chemical testing to determine amount of alcohol or' controlled substance) or 3808(c) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and the person seeks a restoration of operating privileges, the department shall require as a condition of issuing a restricted license pursuant to this section that the following occur:

(1) Each motor vehicle. owned by the person or registered to the person has been equipped with an ignition interlock system and remains so for the duration o£ the restricted license period.

(2) If there are no motor vehicles owned by the person or registered to the person that the person so certify, to the department. A person so certifying shall be deemed to have satisfied the requirement that all motor vehicles owned by the person or registered to the person' be equipped with an ignition interlock system as required by this subsection.

Text of subsec. (a) effective June 30, 2007.

(a) General rule. If a person violates'' section 3802 (relating to driving under influence of alcohol or controlled substance) and, within the past ten years; has a prior offense as defined in section 3806(a) (relating to prior offenses) or has had their operating privileges suspended pursuant to section 1547(b.1) (relating to chemical testing to determine amount of alcohol or controlled substance) or 3808(c) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and the person seeks a restoration of operating privileges, the department shall require as a condition of issuing a restricted license pursuant to this section that the following occur:

(1) Each motor vehicle owned by the person or registered to the person has been equipped. with an ignition interlock system and remains so for the duration of the restricted license period.

(2) If there are no motor vehicles owned by the person or registered to the person that the person so certify to the department. A person so certifying shall be deemed to have satisfied the requirement that all motor vehicles owned by the person or registered to the person be equipped with an ignition interlock system as required by this subsection.

(b) Application for a restricted license. A person subject to this section shall apply to the department for an ignition interlock restricted license under section 1951 (relating to driver's license and learner's permit), which shall be clearly marked to restrict the person to only driving, operating or being in actual physical control of the movement of motor vehicles equipped with an ignition interlock system. Upon issuance of an ignition interlock restricted license to any person, the department shall notify the person that until the person obtains' an unrestricted license the person may not own, register, drive, operate or be in actual physical control of the movement of any motor vehicle which is not equipped with an ignition interlock system.

(c) Issuance of unrestricted license.-One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may be issued a replacement license under section 1951(d) that does not contain the ignition .interlock sys-tem restriction.

(d) Prohibition.-Except as set forth in subsections (e) and (f) until the person obtains an unrestricted license, the person may not own, register, drive, operate or be in actual physical control of the movement of any motor vehicle within this Commonwealth unless the motor vehicle is equipped with an ignition interlock system.

(e) Economic hardship exemption.-A person subject to the requirements of subsection, (a) may apply 2o the department for a hardship exemption to the requirement that an ignition interlock system must be installed in each of the person's motor vehicles. Where the department determines that the applicant establishes that such a requirement would result in undue financial hardship, the department may permit the applicant to install an ignition interlock system on only one of the applicant's motor vehicles. However, the applicant in accordance with section 3808 (relating to illegally operating a motor vehicle not equipped with ignition interlock) shall be prohibited from driving, operating or being in actual physical control of the movement of any motor vehicle, including any of the applicant's motor vehicles, which is not equipped with an ignition interlock system. . .

(f) Employment exemption.-If a person with a restricted license is required in the course and scope of employment to drive, operate or be in actual physical control of the movement of a motor vehicle owned by the person's employer, the following apply:

(1) Except as set forth in paragraph (2), the person may drive, operate or be in actual physical control of the movement of that motor vehicle in the course and scope of employment without installation of an ignition interlock system; if:

(i) the employer has been notified that the employee is restricted; and

(ii) the employee has proof of the notification in the employee's possession while driving, operating or being in actual physical control of the movement of the employer's motor vehicle. Proof of the notification may be established only by the notarized signature of the employer acknowledging notification on a form which shall be provided by the department for this purpose and shall include a contact telephone number of the employer.

(2) Paragraph (1) does not apply in any of the following circumstances:

(i) To the extent that an employer-owned motor vehicle is made available to the employee for personal use.

(ii) If the employer-owned motor vehicle is owned by an entity which is wholly or partially owned by the person subject to this section.

(iii) If the employer-owned motor vehicle is a school bus; a school vehicle; or a vehicle designed to transport more than 13 passengers, including the driver.

(g) Prohibition of authorization.-This section shall not give the department authorization to impose an ignition interlock requirement on a person that has committed an offense under former section 3731 prior to October 1, 2003, without the issuance of a court order.

(h) Department approval.-An ignition interlock system required to be installed under this title must be a system which has been approved by the department: The department's approval of ignition interlock systems shall be published in the Pennsylvania Bulletin. Systems approved for use under former 42 Pa.C.S. 7002(d) (relating to ignition interlock systems for driving under the influence) and any contracts for the installation, maintenance and inspection of the systems in effect as of the effective date of this section shall continue to be approved and in effect until the department again publishes approval of ignition interlock systems in the Pennsylvania Bulletin and enters into new contracts in support of the systems.

(h.1) Mobile installation services-

(1) Approved service providers of department-certified manufacturers of ignition interlock systems shall be permitted to provide mobile installation of ignition interlock systems within this Commonwealth.

(2) Mobile installation of ignition interlock systems shall be held to the same' security and procedural standards as provided in specifications of the department.

(3) Approved service providers of mobile installation of ignition interlock systems shall not permit the program participant or any unauthorized personnel to witness the installation of the ignition interlock system.

(4) Regular maintenance of ignition interlocks after mobile installation shall be performed according to the specifications established by the department.

(i) Offenses committed during a period for which an ignition interlock restricted license has been issued, Except as provided in sections 1547(b.1) and 3808(c) (relating to illegally operating a motor vehicle not equipped with ignition interlock), any driver who has been issued an ignition interlock restricted license and as to whom the department receives a certified record of a conviction of an offense for which the penalty is; a cancellation, disqualification, recall, suspension or revocation of operating privileges shall have the ignition interlock restricted license recalled, and the driver shall surrender the ignition interlock restricted license to the department or its agents designated under the authority of section 1540 (relating to surrender of license). Following the completion of the cancellation, disqualification, recall, suspension or revocation which resulted in the recall of the ignition interlock restricted license, the department shall require that the person complete the balance of the ignition interlock restricted license period previously imposed prior to the issuance of a replacement license under section 1951(d) that does not contain an ignition interlock restriction.

2003, Sept. 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004. Amended 2004, Nov. 30, P.L. 1667, No. 211,2, effective June 30, 2007; 2006, May 11, P.L. 159, No. 37, 3, effective in 60 days [July 10; 20061.

3806. Prior offenses

(a) General rule.-Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition 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);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

(b) Repeat offenses within ten years.-The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:

(1) an offense under section 3802;

(2) an offense under former section 3731; .

(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph (1), (2) or (3).

2003, Sept 30, P.L. 120, No. 24, 16, effective Feb. 1, 2004. Amended 2004, Nov. 29, P.L. 1369, No. 177; 4, imd. effective.

Historical and Statutory Notes

Section. 6 of 2004,. Nov. 29, P.L. 1369, No. 177, imd. effective, provides that "[t]he amendment. of the following provisions shall apply to sentences imposed on or after the effective date of this section:

(1) 75 Pa.C.S. 3806;

(2) 75 Pa.C.S. 3815(a); and

(3) 75 Pa.C.S. 6303.

3807. Accelerated Rehabilitative Disposition

(a) Eligibility.

(1) Except as set forth in paragraph (2), a defendant charged with a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) may be considered by the attorney for the Commonwealth for participation in an Accelerated Rehabilitative Disposition program in a county if the program includes the minimum requirements contained, in this section.

(2) The attorney for the Commonwealth shall not submit a charge brought under this chapter for Accelerated Rehabilitative Disposition if any of the following apply:

(i) The defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under section 3802 within ten years of the date of the current offense unless the charge was for an ungraded misdemeanor under section 3802(a)(2) and was the defendant's first offense under section 3802.

(ii) An accident occurred in connection with the events surrounding the current offense and an individual other than the defendant was killed or suffered serious bodily injury as a result of the accident.

(iii) There was a passenger under 14 years of age in the motor vehicle the defendant was operating.

(b) Evaluation and treatment.

(1) A defendant offered Accelerated Rehabilitative Disposition for a violation of section 3802 is, as a condition of participation in the program, subject to the following requirements in addition to any other conditions of participation imposed by the court:

(i) The defendant must attend and successfully complete an alcohol highway safety school established under section 1549 (relating to establishment of schools). A participating defendant shall be given both oral and written notice of the provisions of section 1543(b) (relating to driving while operating privilege is suspended or revoked).

(ii) Prior to receiving Accelerated Rehabilitative Disposition or other preliminary disposition, the defendant must be evaluated under section 3816(a) (relating to requirements for driving under influence offenders) to determine the extent of the defendant's involvement with alcohol or other drug and to assist the court in determining what conditions of Accelerated Rehabilitative Disposition would benefit the defendant and the public. If the evaluation indicates there is a need for counseling or treatment, the defendant shall be subject to a full assessment for alcohol and drug addiction in accordance with the provisions of section 3814(3) and (4) (relating to drug and alcohol assessments).

(iii) If the defendant is assessed under subparagraph (ii) to be in need of treatment, the defendant must participate and cooperate with a licensed alcohol or drug addiction treatment program. 'The level and duration of treatment shall be in accordance with the recommendations of the full assessment. Nothing in this subparagraph shall prevent a treatment program from refusing to accept a defendant if the program administrator deems the defendant to be inappropriate for admission to the program. A treatment program shall retain the right to immediately discharge into the custody of the probation officer an offender who fails to comply with program rules and treatment expectations or refuses to constructively engage in the treatment process.

(iv) The defendant must remain subject to court supervision for at least six months, but not more than 12 months.

(v) The defendant must make restitution to any person that incurred determinable financial loss as a result of the defendant's actions which resulted in the offense. Restitution must be subject to court supervision.

(vi) The defendant must pay the reasonable costs of a municipal corporation in connection with the offense. , Fees imposed under this subparagraph shall be distributed to the affected municipal corporation.

(vii) The defendant must pay any other fee, surcharge or cost required by law. Except as set forth in subparagraph (vi) or (viii), a fee or financial condition imposed by a judge as a condition of Accelerated Rehabilitative Disposition or any other preliminary disposition of any charge under this chapter shall be distributed as provided for in 42 Pa.C.S. §3571 (relating to Commonwealth portion of fines, etc.) and 3573 (relating to municipal corporation portion of fines, etc.).

(viii) The defendant must pay the costs o£ compliance with subparagraphs (i), (ii) and (iii).

(2) The defendant shall be subject to a full assessment for alcohol and drug addiction if any of the following apply:

(i) The evaluation under paragraph (1)(R) indicates a likelihood that the defendant is addicted to alcohol. or other drugs.

(ii) The defendant's blood alcohol content at the time of the offense was at least 0.16%.

(3) The assessment under paragraph (2) shall be conducted by one of the following:

(i) The Department of Health or its designee.

(ii) The county agency with responsibility for county drug and alcohol programs or its designee.

(iii) The clinical personnel of a facility licensed by the Department of Health for the conduct of drug and alcohol addiction treatment programs.

(4) The assessment under paragraph (2) shall consider issues of public safety and shall include recommendations for all of the following:

(i) Length of stay.

(ii) Levels of care.

(iii) Follow-up care and monitoring.