Legislature closes DUI loophole for repeat offenders

They have repeatedly driven drunk in Pennsylvania.

And they’ve driven through a legal loophole to elude harsh penalties from the courts.

It’s frustrated district attorneys for years.

“They understand the way the statute’s being interpreted and they exploit it,” Cumberland County DA Dave Freed said.

Georgina Zogby, wife of Pennsylvania Budget Secretary Charles Zogby, used the loophole a few years ago in the Midstate.

Here’s how:

Zogby was arrested for DUI in Cumberland County in July 2011. She was arrested for DUI again in York County in September 2011.

Zogby pled guilty in York to the second offense, first, in April, 2012. At that point, she had no prior convictions.

Zogby then pled guilty in Cumberland County in September, 2012, arguing that case was her first arrest and she hadn’t driven drunk prior to that time.

So, in the eyes of the court, those two convictions were both first-time offenses. Zogby received no jail time.

Local judges were criticized, but their hands were tied because of a high court ruling that says until a person is convicted, they’re not convicted, and it can’t count against them.

“You can have people with two, three, even four, first offenses and the penalties are limited to those with a first offense,” Freed said.

But Senate Bill 1239, which passed this week in the closing moments of the legislative session, will close the loophole and force courts to deal with DUI’s one at a time so the convictions, and penalties, can increase.

It is not welcome news to prominent DUI attorney Gary Lysaght, who admits he has frequently used the loophole for his clients.

“DUI is not a violent offense, it’s an addictive offense,” Lysaght said.

He worries the law will prompt judges to throw clients in jail when treatment is more appropriate. He says the Zogby case is a perfect example.

“The judge looked at Georgina Zogby and he knew that she was in treatment,” Lysaght said. “She was taking rehabilitative measures, and why should he force her to go to jail if Georgina went to rehab, she’s sober, and she’s being a good, productive member?”

Avoiding jail, Lysaght argues, doesn’t mean avoiding punishment. PennDOT penalties accrue for each violation.

“You do a DUI, you lose your license for a year. You do another DUI, you lose it for two years. You do a third one, you lose it for five years,” Lysaght said.

In Cumberland County, DUIs are more than a third of all cases. Freed said under the new law, judges will still have discretion to push treatment over jail time, but they won’t be barred from dropping the hammer on repeat offenders.

“One DUI, it’s an issue,” Freed said with a shrug. “Another one, we need to be a little more vigilant. A third one, we need to be even more vigilant. Now, we can treat them as successive events rather than all one offense.”

Governor Corbett is expected to sign the new DUI regulations into law.

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