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DUI Defendant Asks Pennsylvania Superior Court to Vacate Conviction Because of Clerical Error by Prosecutors

A DUI defendant appealed her conviction of driving under the influence of alcohol (DUI), highest rate of alcohol, to the Pennsylvania Superior Court, claiming that the charge filed against her was defective. Pennsylvania law and the U.S. Constitution require prosecutors to provide specific information to defendants, including the date of the alleged offense, to allow them to prepare a defense. The defendant claimed that the information charging her with DUI stated the date of the offense incorrectly and that she therefore lacked adequate notice of the charge against her. The Superior Court, ruling in Commonwealth v. McKee, denied the appeal. It held that prosecutors supplemented the information prior to trial and that the error did not prejudice the defendant’s case.

The defendant did not dispute the facts that directly resulted in her DUI conviction. Police stopped her vehicle at about 11:40 p.m. on November 21, 2011, placed her under arrest, and transported her to a State Police barracks. A trooper administered a breath test at about 12:15 a.m., which reportedly showed blood alcohol content (BAC) greater than 0.16 percent. Prosecutors filed an information charging her with DUI at the highest rate of alcohol in March 2012. The information stated that the offense occurred on November 22, 2011, not November 21.

Prosecutors produced documents in response to the defendant’s request for a Bill of Particulars in April 2012. The commonwealth’s answer included the incident report, documents related to the defendant’s arrest, driving records, and breath test results. Many of the documents produced by the district attorney, according to the Superior Court, indicated that the alleged DUI offense occurred on November 21, with the breath test taking place on November 22. Testimony given by the commonwealth’s witnesses at trial corroborated these dates.

The trial court denied the defendant’s motion to dismiss the case, based on the defective information, at the close of the commonwealth’s case. The jury returned a guilty verdict in September 2012, and the trial court pronounced sentence that November. She filed a post-sentence motion with the Superior Court on the day of sentencing.

The Superior Court denied the post-sentence motion, holding that the commonwealth had adequately supplemented the information to provide the correct date of the offense. Rule 560 of the Pennsylvania Rules of Criminal Procedure does not necessarily require the commonwealth to state a specific date or dates on which an offense occurred, but rather to state that an offense occurred “on or about” a date or range of dates. While the court acknowledged a “variance” between the date in the information and the date proved by the commonwealth at trial, it held that the information provided by the commonwealth in the bill of particulars was sufficient to make the defendant aware of the charge against her.

The court also held that the error in the information did not prejudice the defendant’s case. It described the variance in dates as “miniscule and inconsequential.” Despite the claimed insignificance of the discrepancy, it ruled that the commonwealth may amend the information, as allowed by Rule 564, to fix the error.

If you have been arrested for DUI in Pennsylvania , it is critical that you consult with a qualified DUI lawyer to determine the best way to handle your defense. Zachary B. Cooper, Attorney at Law, P.C. has dedicated 100% of his practice to DUI defense. We are available to help you 24/7. Please contact us online or at (215) 542-0800 for a free and confidential consultation.

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