The Superior Court of Pennsylvania recently decided Commonwealth v. Musau, in which it sought to answer the question: Can a defendant receive a sentence of more than six months for a first or second DUI conviction when the defendant refused a blood or breath test, which constitutes a misdemeanor of the first degree? The court held that by the plain language of the statute, the maximum sentence is six months incarceration.
In Musau, appellant John M. Musau was convicted of a highest tier DUI for refusing to submit to breath testing by Philadelphia Police after he was found drunk and parked in front of a fire hydrant. This was his second DUI. Pursuant to 75 Pa.C.S.A. § 3803(b)(4), the offense was graded as a first-degree misdemeanor since he refused to submit to a chemical test. Pursuant to 18 Pa.C.S.A. § 106(b)(6), (e), a misdemeanor of the first degree is punishable by up to five years’ imprisonment. This is directly contradicted, however, by 75 Pa.C.S.A. 3803(b)(1), which states that “Notwithstanding the provisions of subsection (B): An individual who [commits DUI] 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”. Musau was sentenced to a period of 90 days to 5 years imprisonment and appealed the legality of this sentence because of the aforementioned contradiction. In simpler terms, DUI carries with it a sentence of up to 6 months, but a DUI arising from a chemical test refusal is a Misdemeanor of the First Degree, which carries with it a sentence of up to 5 years…so which provision trumps the other?
The key point of contention here was the interpretation of the word “notwithstanding.” Musau interpreted “notwithstanding” to mean “in spite of”, whereas the Commonwealth interpreted it to mean “except for”. The Commonwealth asserted that adopting Musau’s definition of “notwithstanding” “renders subsection (b) of the statute mere (and non-effectual) surplusage and precludes the imposition of the more stringent sentencing provision set forth in subsection (b)(4).”
The Court adopted the American Heritage Dictionary and Musau’s definition of notwithstanding and sided with Musau. This decision effectively curtails the maximum penalty for a highest tier, drug or refusal second offense DUI case. The crucial point here is that someone previously sentenced, and still serving, such a sentence, is eligible for relief today regardless of how long ago the sentencing took place. That is because the sentence is illegal, and a defendant can never waive the right to challenge an illegal sentence. To speak to an experienced Pennsylvania DUI attorney about what this might mean for you, contact Fairlie & Lippy today.