The PA Superior Court has held in the case of Commonwealth v. Kimmel, No. 126 MDA 2013 (October 29, 2015) that fleeing after an initial stop for DUI is a separate act from the initial DUI and, upon conviction for both charges, the sentences for each offense will not merge.
Officer Jason Beltz conducted a traffic stop based on his suspicion that Appellant was driving while intoxicated. Appellant stopped his truck and exhibited signs of intoxication. Appellant then became combative, and the officer took Appellant’s keys. Appellant then returned to his truck, locked the door, and retrieved a second set of keys from his pocket. At this juncture, Appellant chose to again drive the truck while intoxicated while fleeing from Officer Beltz, and Appellant was arrested at the conclusion of his drunken flight.
Appellant was ultimately charged and convicted of fleeing, DUI, careless driving, and public drunkenness. Fleeing is generally a second-degree misdemeanor (“M2”). However, when the fleeing occurs while driving under the influence, it is graded as a third-degree felony (“F3”). Therefore, in this case, the fleeing offense was elevated to an F3.
Upon conviction, Appellant was sentenced to eight to twenty-four months of incarceration for F3 fleeing and fourteen to forty- eight months for DUI resulting in an aggregate sentence of twenty-two to seventy-two months.
After the denial of a post-sentence motion raising the same issue, Appellant claimed on appeal to the Superior Court that his convictions for driving under the influence of alcohol and fleeing or attempting to elude a police officer should merge for sentencing purposes, thereby decreasing his total sentence.
The Superior Court concluded that Appellant’s convictions arose from separate criminal acts. Therefore, the sentences for each charge did not merge and there was no error in the sentence imposed by the trial court.
Fleeing is generally graded as an M2; but, when the fleeing occurs while driving under the influence, it is graded as an F3.
The doctrine of merger in PA states that no crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Therefore, merger is appropriate only when both of two distinct criteria are satisfied: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included within the statutory elements of the other.
The circumstances here are straightforward: there was the initial DUI, followed by a traffic stop, followed by Appellant choosing to flee while DUI.
Therefore, the Court concluded that because Appellant’s convictions arose from separate criminal acts, merger is not implicated.
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