Sentencing Driving Under the Influence Jeopardizing Public Safety

Commonwealth v. Moyer, PICS Case No. 17-1029 (C.P. Lycoming Jun. 19, 2017) Lovecchio, J. (9 pages).

A sentence of incarceration for drunk driving was not unduly harsh or excessive where defendant lied about his drinking and recovery at the sentencing hearing, and incarceration was the only means of ensuring public safety.

During a five-month period in 2014, defendant was charged with driving under the influence, all misdemeanors of the first degree. All three times, defendant's blood alcohol level was approximately .21 percent. Defendant pleaded guilty to all the DUI charges.

At the sentencing hearing on all three DUI convictions, the court received and reviewed the presentence report and assessments of defendant. In 1990, defendant was convicted for attempted homicide and aggravated assault, for which he spent 14 years in state prison. Defendant testified at the sentencing hearing that he attended church and AA meetings, had a support group, was participating in therapy, had a job and had good support at home.

The court initially ordered 15 years of intermediate punishment with the first 17 months to be served at a work-release facility, followed by a period of placement on an alcohol monitoring unit. However, as defendant was being taken into custody following the sentencing hearing, the court overheard comments by defendant which were contradictory to his testimony during the hearing. The court directed defendant to return to the courtroom and reopened the record after vacating the initial sentence. During questioning, the court discovered that substantially all of defendant's original hearing testimony was inaccurate. Both defendant and his significant other indicated he was still drinking regularly. The court sentenced defendant to a period of 6 to 15 years in a state correctional facility.

Defendant appealed, arguing that the sentence was unduly harsh, inappropriate and excessive. On appeal, the court found there was no basis whatsoever to conclude that the court ignored or misapplied the law, or that it exercised its judgment for reasons of prejudice or bias, or that the decision was manifestly unreasonable. The sentence imposed took into account the protection of the public, the rehabilitative needs of defendant, and the gravity of the offenses. While the court was initially willing to impose a lenient sentence, once it became clear that defendant lied about his drinking, the court acted appropriately by imposing a sentence that protected the public for a significant period of time. Defendant's conduct indicated he would not stop drinking and driving. Keeping defendant off the road was of paramount importance.