I have a prior DUI, but the officer only charged me with a first offense DUI. Did the officer make a mistake and can the charge be changed in the future?
Yes. In Centre County and many counties across Pennsylvania, most, if not all, DUI charges are filed as first offenses on the Police Criminal Complaint that is filed by the officer with the district court. For people that have prior offenses of DUI within the last ten years, they are happy to see that the charge is a “first offense” and hope that neither the police nor the district attorney discovers the error. The first and most important issue is that a person charged with DUI should NOT tell the police officer about prior offenses. In the criminal system, a person is presumed to be innocent, and the burden of proof is always on the district attorney to prove a person’s guilt beyond a reasonable doubt. In most cases, the district attorney or police will discover the prior offense DUI as most offenses would be noted on national criminal records or driving records. However, there are some occasions with regard to out-of-state DUI charges where the prior DUI offense does not appear on a criminal background search, so the district attorney and police may not discover the prior DUI charge. If you tell the officer or the district attorney about a DUI offense, then the district attorney or police may conduct a more thorough investigation of your prior criminal history to find the DUI charge. While you have no obligation and should not tell the district attorney about a prior DUI offense, you should inform your DUI defense attorney about the prior offense so that he can prepare and defend your case accordingly.
A person is not obligated to inform the district attorney about a prior offense, but the exception to the general rule is IF you apply for ARD, most district attorneys require an ARD applicant to self-report all prior charges, including DUI offenses. Most ARD applications contain a “verification” section, meaning a section that is signed by the applicant promising that everything that is included in the application is true and correct. If a person lies about a prior DUI charge on the ARD application, the district attorney may file additional criminal charges against the person for providing the false information. There is a distinction between remaining silent and lying.
If the district attorney discovers a prior DUI offense, he or she will amend the charges to reflect that the current DUI is a subsequent offense and thereby subject to severe mandatory minimum penalties for DUI charges. After amending the DUI charge, it is still the obligation of the district attorney to prove to the sentencing judge that a person has a prior offense. A prior offense is not something that is proven to a judge or jury beyond a reasonable doubt but is instead a sentencing issue that must be proven to a judge if the person is convicted of or pleads guilty to a DUI charge. If the prior DUI offense was out-of-state, the district attorney must show the sentencing judge that the DUI law from the other state is “substantially similar” to the DUI law in Pennsylvania and thereby should be considered a “prior offense” of DUI.