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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 3154
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Nearly three years ago I had a DUI in PA and it was the

Customer Question

Nearly three years ago I had a DUI in PA and it was the lowest tier. I completed ARD. I never went and got it expunged, however in August of this year I got charged with a first offense incapable of safe driving. What really happens? Should I honestly be worried? The dui I went to ard for shouldn't go against me since a BAC DUI is a different charge than incapable of safe driving, right?
Submitted: 8 months ago.
Category: Criminal Law
Expert:  Colleen Grady replied 8 months ago.

Hello. I will help you today. I have been an attorney for 27 years. I am reviewing your question and will be back to you shortly.

Customer: replied 8 months ago.
Is there any further information you need that will help you answer this?
Expert:  Colleen Grady replied 8 months ago.

When you say you were charged in August for a first offense "incapable" of safe driving, is this the exact wording of the charge?

Expert:  Colleen Grady replied 8 months ago.

Can you explain what happened in August and if you are still in court with this case?

Customer: replied 8 months ago.
Dui general imp/incapable of driving safely first offense
Expert:  Colleen Grady replied 8 months ago.

Thank you

Customer: replied 8 months ago.
But the offense said unintentional death. No one died. No one was hit, there was no accident either.
Expert:  Colleen Grady replied 8 months ago.

On your ARD, was the case dismissed?

Expert:  Colleen Grady replied 8 months ago.

Is the August case still open?

Expert:  Colleen Grady replied 8 months ago.

Sorry. Just read the letter. You are going to court.

Customer: replied 8 months ago.
I Have my preliminary on Monday and my public defender is hard to reach.I was driving and two cops were walking across the street so I stopped as soon as I saw them shine a flashlight and I got my blood drawn after failing a sobriety test. Limit in Pa is .08 and I was .04
Customer: replied 8 months ago.
I completed ARD but never went and got my record expunged. My BAC DUI was May 2014
Expert:  Colleen Grady replied 8 months ago.

Did you ever move for an order of dismissal in the 2014 case?

Customer: replied 8 months ago.
I did not. But I did complete all ARD requirements and have proof I did.
Customer: replied 8 months ago.
My only HUGE question is can a BAC DUI be used against me if this is a separate charge?
Expert:  Colleen Grady replied 8 months ago.

It is good that you completed the requirements. I am concerned however that you did not move or an order of dismissal or expungement. What county was the 2014 case in?

Customer: replied 8 months ago.
Dauphin county
Customer: replied 8 months ago.
But different charges can't be used against me in a separate charge? I know it's not the same offense because my public defender at least told me that much. And as noted on the file this is a first offense.
Expert:  Colleen Grady replied 8 months ago.

I want to be certain of what your attorney is saying. Give me a few minutes to research the procedures in Dauphin. In some counties dismissal is automatic upon completion of the program. Here is the general law:

Rule 319. Procedure for Obtaining Order for Dismissal Upon Successful Completion of the Program.

When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the agency or person charged with supervising the defendant’s program, if any. A copy of the motion shall be served on the attorney for the Commonwealth who shall within 30 days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant’s attorney. If there are no objections filed within the 30-day period, the judge shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the judge shall proceed as set forth in Rule 318.

Comment

In some counties, court agencies or the district attorney’s office have procedures for initiating the dismissal of the charges upon the defendant’s successful completion of the program. This rule is not intended to preclude these procedures.

For the procedures for expungement when there is a dismissal, see Rule 320.

Customer: replied 8 months ago.
I don't need help getting expunged. My only question is really if a first offense BAC DUI can be held against me when my current charge is not a BAC related offense.
Expert:  Colleen Grady replied 8 months ago.

If your 2014 case is still open and it still may be, it may be used against you. In Dauphin County, you have to move to dismiss charges. Right now your 2014 case may still be open. Take a look at the following from the court: http://www.dauphincounty.org/government/Court-Departments/Self-Help-Center/Documents/Accelerated%20Rehabilitation%20Disposition%20(ARD)%20Expungement%20Forms%20and%20Instructions.pdf

Expert:  Colleen Grady replied 8 months ago.

The issue is dismissal not expungement. You may still have an open court case. This has to be investigated.

Expert:  Colleen Grady replied 8 months ago.

Give me a short time to do a bit more research on the new charge.

Customer: replied 8 months ago.
Ok my case from 2014 is listed as "adjudicated"
Customer: replied 8 months ago.
Sending more info from 2014
Expert:  Colleen Grady replied 8 months ago.

According to what you just sent me, it looks like the court indicated to the Department of Transportation that you fulfilled your sentence and the prior case may be sealed. Here is what the DL-21A is supposed to do for your case:

§ 81.2. Accelerated rehabilitative disposition.

(a) General rule. If a person is offered and accepts accelerated rehabilitative disposition under the Pennsylvania Rules of Criminal Procedure for any offense enumerated in 75 Pa.C.S. § 1532 (relating to revocation or suspension of operating privilege), or for an offense enumerated in any other act in the commission of which a motor vehicle was used, the court shall promptly notify the Department on Form DL-21A, under 75 Pa.C.S. § 1534 (relating to notice of acceptance of Accelerative Rehabilitative Disposition). Ch. 81 REPORTS TO BUREAU OF DRIVER LICENSING 67 § 81.1 81-1 (233973) No. 276 Nov. 97 (b) Content of the report. The report of the clerk of court, Form DL-21A, shall indicate:

(1) Name and current address of individual placed on accelerated rehabilitative disposition.

(2) Operator’s number or date of birth, or both, of individual placed on accelerated rehabilitative disposition.

(3) Date of violation.

(4) Date individual was placed on accelerated rehabilitative disposition.

(5) Description of charge.

(6) Section, subsection and name of the act violated.

(7) Terms and conditions of accelerated rehabilitative disposition.

(8) Court, term and number.

(9) Seal.

(c) Incomplete report. The Department will not process the report of the clerk of court showing accelerated rehabilitative disposition unless all the required information indicated in subsection (b) is provided to the Department. An incomplete Form DL-21A will be returned to the clerk of court for completion.

The fact that it says "satisfied penalty" makes me feel better. The prior case should not be used against you in the new case.

Expert:  Colleen Grady replied 8 months ago.

Make sure your attorney makes a motion to dismiss the charge of "Unintentional Death" at the preliminary hearing.

Expert:  Colleen Grady replied 8 months ago.

Please let me know if I can help more. I will be happy to answer more of your questions.