Of 784 DUI cases in Warren County since 2008, 170 are problematic.
It is too late to reduce the sentences of 137 of those defendants, but 33 may soon see some relief.
A hearing to discuss amending and dismissing DUI charges is set for 2:30 p.m. Tuesday, July 1, in Warren County court.
There were 784 people convicted of and sentenced for DUI in the county between Oct. 30, 2008, and May 2014.
Of those, 170 – or 21 percent – were charged with more serious crimes than they legally deserved, according to Warren County District Attorney Rob Greene.
For almost five and a half years, a discrepancy between the way blood alcohol content (BAC) was determined and reported by Warren General Hospital and prosecuted in Warren County courts resulted in defendants being charged for BAC levels higher than the real values.
A conversion should have been applied to the results from the hospital to determine the legal BAC. Greene is now dividing the hospital’s BAC results by 1.35 to give a legally accurate whole-blood BAC figure.
In 153 cases, the defendants should have been charged with lower-tiers of DUI charges.
In Pennsylvania, there are three levels of DUI: general impairment, .08 to .099; high rate of alcohol, .10 to .159; and highest rate of alcohol, .16 and above. Higher rates call for more serious penalties.
Of the 153 defendants, 126 have served their entire sentences.
Greene has made motions to the 37th Judicial District of Pennsylvania that the other 27 defendants, who are still serving sentences, have their charges amended downward.
A total of 17 defendants would not have been charged with DUI if the calculation to change the Warren General Hospital BAC to the legally-accepted BAC had been applied.
The defendants in 11 of those cases have completed DUI sentences.
Greene has moved that the charges against the remaining six be dismissed.
He is still working to find out what, if anything, can be done for the 137 who have completed sentences on elevated charges that resulted from the unconverted BAC results.
“Since the defendant has served their entire sentence the rules may not allow the court to change the DUI charge,” Greene said. “Unfortunately, we may have no remedy for those who have completely served their sentence. However, my office is still looking into this and have not given up on a remedy yet.”
According to the Pennsylvania Criminal Code: “to be eligible for relief the petitioner must be currently serving a sentence of imprisonment, probation or parole for the crime.”
More than 600 DUI defendants are not due any relief, according to Greene.
Only those whose BACs were determined at Warren General Hospital are affected. Defendants who were given breath tests, who refused to have their blood alcohol tested, or were tested at other hospitals or labs are not eligible for relief. Also, defendants whose BACs were in the range from .14 to .159 or above .22 would still fall in the same level of DUI after their numbers were divided by the 1.35 conversion.
A letter was sent from Warren General Hospital to the district attorney’s office in 2008 saying the hospital had changed blood alcohol testing equipment. The new equipment tested the alcohol content of blood serum – the liquid portion – whereas the old equipment tested whole blood.
Copies of the letter are on file at both the hospital and Warren County Courthouse.
Testing serum gives Blood Alcohol Content higher than testing whole blood, according to Greene, and the necessary calculation was not performed on blood tests from the hospital over a five-year period from October 2008 to May 2014. Determining the whole-blood BAC requires division by 1.1 to 1.35. Greene said he has opted to remove doubt from the calculation by using the highest number – the one that will result in the lowest BAC for the defendants.
Greene said he discovered the need for the conversion while observing a trial that was prosecuted by the state attorney general’s office.