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DUI Statute Interpreted by Superior Court

Second offense DUI with a refusal to take BAC is properly graded as an ungraded misdemeanor and not a first degree misdemeanor.


The Superior Court in Commonwealth v. MUSAU, 2013 PA Super 159 (June 28, 2013) recently held that the proper statutory interpretation of the Driving Under the Influence statute, 75 Pa.C.S. Sections 3802(a)(1) and (b)(4) is that a second offense DUI with a refusal to take the blood alcohol test ("BAC") is as an ungraded misdemeanor, not a misdemeanor of the first degree.

Section 3802(a)(1) states as follows:

(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).

Section 3802(b)(4) provides as follows:

(b) Other offenses

(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.

Here, the Court reviewed the meaning of the term "notwithstanding" to mean "nevertheless" or "in spite of", rather than "except".  Therefore, based upon statutory interpretation laws, the later section does not apply.  Rather, section (a)(1) was meant to be given effect and therefore, the offense is only an ungraded misdemeanor.

If you've been charged with a DUI or other driving offense, you need experienced counsel to assist you.  You may contact Shaffer & Engle Law Offices, LLC  (717) 268-4287 or email us today