Pennsylvania Act 2000-64 — CRIMES CODE (18 PA.C.S.) - AMEND ALCOHOLIC IGNITION INTERLOCK

Act text

CRIMES CODE (18 PA.C.S.) - AMEND ALCOHOLIC IGNITION INTERLOCK
                  Act of Jun. 22, 2000, P.L. 469, No. 64              Cl. 18
                             Session of 2000
                               No. 2000-64

     SB 255

                                  AN ACT

     Amending Title 18 (Crimes and Offenses) of the Pennsylvania
        Consolidated Statutes, providing for certain restriction on
        alcoholic beverages and for operating a motor vehicle not
        equipped with ignition interlock; and making a repeal.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 910 of Title 18 of the Pennsylvania
     Consolidated Statutes is amended to read:
      § 910.  Manufacture, distribution, use or possession of devices
                for theft of telecommunications services.
        (a)  Offense defined.--Any person commits an offense if he:
            (1)  makes, distributes, possesses, uses or assembles an
        unlawful telecommunication device or modifies, alters,
        programs or reprograms a telecommunication device designed,
        adapted or which can be used:
                (i)  for commission of a theft of telecommunication
            service or to disrupt, transmit, decrypt, acquire or
            facilitate the disruption, transmission, decryption or
            acquisition of any telecommunication service without the
            consent of the telecommunication service provider; or
                (ii)  to conceal or to assist another to conceal from
            any telecommunication service provider or from any lawful
            authority the existence or place of origin or of
            destination of any telecommunication; or
            (2)  sells, possesses, distributes, gives or otherwise
        transfers to another or offers, promotes or advertises for
        sale any:
                (i)  unlawful telecommunication device, or plans or
            instructions for making or assembling the same, under
            circumstances evidencing an intent to use or employ such
            unlawful telecommunication device, or to allow the same
            to be used or employed for a purpose described in
            paragraph (1), or knowing or having reason to believe
            that the same is intended to be so used, or that the
            aforesaid plans or instructions are intended to be used
            for making or assembling such unlawful telecommunication
            device; or
                (ii)  material, including hardware, cables, tools,
            data, computer software or other information or
            equipment, knowing that the purchaser or a third person
            intends to use the material in the manufacture of an
            unlawful telecommunication device.
        (b)  Grading.--[An offense under this section is a felony of
     the third degree if the person convicted of such offense has
     been previously convicted of any similar crime in this or any
     other state or Federal jurisdiction. Otherwise it is a
     misdemeanor of the first degree.]
            (1)  Except for violations of this section as provided
        for in paragraph (2) or (3), an offense under this section is
        a misdemeanor of the first degree.
            (2)  An offense under this section is a felony of the
        third degree if:
                (i)  the defendant has been convicted previously
            under this section or convicted of any similar crime in
            this or any Federal or other state jurisdiction; or
                (ii)  the violation of this section involves at least
            ten, but not more than 50, unlawful telecommunication
            devices.
            (3)  An offense under this section is a felony of the
        second degree if:
                (i)  the defendant has been convicted previously on
            two or more occasions for offenses under this section or
            for any similar crime in this or any Federal or other
            state jurisdiction; or
                (ii)  the violation of this section involves more
            than 50 unlawful telecommunication devices.
            (4)  For purposes of grading an offense based upon a
        prior conviction under this section or for any similar crime
        pursuant to paragraphs (2)(i) and (3)(i), a prior conviction
        shall consist of convictions upon separate indictments or
        criminal complaints for offenses under this section or any
        similar crime in this or any Federal or other state
        jurisdiction.
            (5)  As provided for in paragraphs (2)(i) and (3)(i), in
        grading an offense under this section based upon a prior
        conviction, the term "any similar crime" shall include, but
        not be limited to, offenses involving theft of service or
        fraud, including violations of the Cable Communications
        Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779).
        (b.1)  Separate offenses.--For purposes of all criminal
     penalties or fines established for violations of this section,
     the prohibited activity established herein as it applies to each
     unlawful telecommunication device shall be deemed a separate
     offense.
        (b.2)  Fines.--For purposes of imposing fines upon conviction
     of a defendant for an offense under this section, all fines
     shall be imposed in accordance with section 1101 (relating to
     fines).
        (c)  Restitution.--The court [may] shall, in addition to any
     other sentence authorized by law, sentence a person convicted of
     violating this section to make restitution under section 1106
     (relating to restitution for injuries to person or property) or
     42 Pa.C.S. § 9721(c) (relating to sentencing generally).
        (c.1)  Forfeiture of unlawful telecommunication devices.--
     Upon conviction of a defendant under this section, the court
     may, in addition to any other sentence authorized by law, direct
     that the defendant forfeit any unlawful telecommunication
     devices in the defendant's possession or control which were
     involved in the violation for which the defendant was convicted.
        (c.2)  Venue.--An offense under subsection (a) may be deemed
     to have been committed at either place where the defendant
     manufactures or assembles an unlawful telecommunication device
     or assists others in doing so or the places where the unlawful
     telecommunication device is sold or delivered to a purchaser, in
     accordance with section 102 (relating to territorial
     applicability). It shall be no defense to a violation of
     subsection (a) that some of the acts constituting the offense
     occurred outside of this Commonwealth.
        (d)  Civil action.--[A telecommunication service provider
     aggrieved by a violation of this section may, in a civil action
     in any court of competent jurisdiction, obtain appropriate
     relief, including preliminary and other equitable or declaratory
     relief, compensatory and punitive damages, reasonable
     investigation expenses, costs of suit and attorney fees.]
            (1)  Any person aggrieved by a violation of this section
        may bring a civil action in any court of competent
        jurisdiction.
            (2)  The court may:
                (i)  grant preliminary and final injunctions to
            prevent or restrain violations of this section;
                (ii)  at any time while an action is pending, order
            the impounding, on such terms as it deems reasonable, of
            any unlawful telecommunication device that is in the
            custody or control of the violator and that the court has
            reasonable cause to believe was involved in the alleged
            violation of this section;
                (iii)  award damages as described in subsection
            (d.1);
                (iv)  in its discretion, award reasonable attorney
            fees and costs, including, but not limited to, costs for
            investigation, testing and expert witness fees, to an
            aggrieved party who prevails; or
                (v)  as part of a final judgment or decree finding a
            violation of this section, order the remedial
            modification or destruction of any unlawful
            telecommunication device involved in the violation that
            is in the custody or control of the violator or has been
            impounded under subparagraph (ii).
        (d.1)  Types of damages recoverable.--Damages awarded by a
     court under this section shall be computed as either of the
     following:
            (1)  Upon his election of such damages at any time before
        final judgment is entered, the complaining party may recover
        the actual damages suffered by him as a result of the
        violation of this section and any profits of the violator
        that are attributable to the violation and are not taken into
        account in computing the actual damages. In determining the
        violator's profits, the complaining party shall be required
        to prove only the violator's gross revenue, and the violator
        shall be required to prove his deductible expenses and the
        elements of profit attributable to factors other than the
        violation.
            (2)  Upon election by the complaining party at any time
        before final judgment is entered, that party may recover in
        lieu of actual damages an award of statutory damages of
        between $250 to $10,000 for each unlawful telecommunication
        device involved in the action, with the amount of statutory
        damages to be determined by the court, not the jury, as the
        court considers just. In any case where the court finds that
        any of the violations of this section were committed
        willfully and for purposes of commercial advantage or private
        financial gain, the court in its discretion may increase the
        award of statutory damages by an amount of not more than
        $50,000 for each unlawful telecommunication device involved
        in the action.
            (3)  For purposes of all civil remedies established for
        violations of this section, the prohibited activity
        established in this section applies to each unlawful
        telecommunication device and shall be deemed a separate
        violation.
        (e)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Manufacture of an unlawful telecommunication device."  To
     produce or assemble an unlawful telecommunication device or to
     modify, alter, program or reprogram a telecommunication device
     to be capable of acquiring, disrupting, receiving, transmitting,
     decrypting or facilitating the acquisition, disruption, receipt,
     transmission or decryption of a telecommunication service
     without the consent of the telecommunication service provider or
     to knowingly assist others in those activities.
        "Telecommunication device."  Any type of instrument, device,
     machine or equipment which is capable of transmitting,
     acquiring, decrypting or receiving any telephonic, electronic,
     data, Internet access, audio, video, microwave or radio
     transmissions, signals, communications or [any part of such
     instrument, device, machine or equipment or any computer
     circuit, computer chip, electronic mechanism or other component
     which is capable of facilitating the transmission or reception
     of telephonic, electronic or radio communications.] services,
     including the receipt, acquisition, transmission or decryption
     of all such communications, transmissions, signals or services
     over any cable television, telephone, satellite, microwave,
     radio or wireless distribution system or facility, or any part,
     accessory or components thereof, including any computer circuit,
     security module, smart card, software, computer chip, electronic
     mechanism or other component, accessory or part which is capable
     of facilitating the transmission, decryption, acquisition or
     reception of all such communications, transmissions, signals or
     services.
        ["Telecommunication service."  The meaning given to it in
     section 3926 (relating to theft of services).
        "Telecommunication service provider."  The meaning given to
     it in section 3926 (relating to theft of services).
        "Unlawful telecommunication device."  The meaning given to it
     in section 3926 (relating to theft of services).]
        "Telecommunication service."  The meaning given to it in
     section 3926 (relating to theft of services) and also any
     service provided by any radio, telephone, cable television,
     satellite, microwave or wireless distribution system or
     facility, including, but not limited to, any and all electronic,
     data, video, audio, Internet access, telephonic, microwave and
     radio communications, transmissions, signals and services.
        "Telecommunication service provider."  The meaning given to
     it in section 3926 (relating to theft of services) and includes
     any person or entity providing any telecommunication service,
     including, but not limited to, any person or entity owning or
     operating any cable television, satellite, telephone, wireless,
     microwave or radio distribution system or facility.
        "Unlawful telecommunication device."  The meaning given to it
     in section 3926 (relating to theft of services) and includes any
     telecommunication device which is capable of or has been
     altered, designed, modified, programmed or reprogrammed, alone
     or in conjunction with another telecommunication device or
     devices so as to be capable of facilitating the disruption,
     acquisition, receipt, transmission or decryption of a
     telecommunication service without the consent or knowledge of
     the telecommunication service provider. In addition to the
     examples listed in section 3926, the term includes, but is not
     limited to, any device, technology, product, service, equipment,
     computer software or component or part thereof, primarily
     distributed, sold, designed, assembled, manufactured, modified,
     programmed, reprogrammed or used for the purpose of providing
     unauthorized disruption of, decryption of, access to or
     acquisition of any telecommunication service provided by any
     cable television, satellite, telephone, wireless, microwave or
     radio distribution system or facility.
        Section 2.  Title 18 is amended by adding sections to read:
      § 7513.  Restriction on alcoholic beverages.
        (a)  General rule.--It is unlawful for any person who is an
     operator or an occupant in any motor vehicle to be in possession
     of an open alcoholic beverage container or to consume any
     alcoholic beverage or controlled substance as defined in the act
     of April 14, 1972 (P.L.233, No.64), known as The Controlled
     Substance, Drug, Device and Cosmetic Act, in a motor vehicle
     while the motor vehicle is located on any highway in this
     Commonwealth.
        (b)  Exception.--This section does not prohibit possession or
     consumption by passengers in the passenger areas of a motor
     vehicle designed, maintained or used primarily for the lawful
     transportation of persons for compensation, including buses,
     taxis and limousines, or persons in the living quarters of a
     house coach or house trailer.
        (c)  Penalty.--Any person who violates this section commits a
     summary offense.
      § 7514.  Operating a motor vehicle not equipped with ignition
                interlock.
        (a)  Offense defined.--A person required to operate only
     motor vehicles equipped with an approved ignition interlock
     system pursuant to 42 Pa.C.S. Ch. 70 (relating to ignition
     interlock devices) who operates a motor vehicle on the highways
     of this Commonwealth without such a system commits a summary
     offense and shall, upon conviction, be sentenced to pay a fine
     of not less than $200 and not more than $1,000 and to
     imprisonment for not more than 30 days.
        (b)  Tampering with an interlock system.--A person who
     tampers with an interlock system required by law commits a
     summary offense and shall, upon conviction, be sentenced to pay
     a fine of not less than $100.
        (c)  Revocation of operating privilege.--Upon receiving a
     certified record of the conviction of any person under this
     section, the department shall revoke the person's operating
     privilege for a period of one year.
        (d)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection unless the context clearly indicates otherwise:
        "Department."  The Department of Transportation of the
     Commonwealth.
        "Ignition interlock system."  A system approved by the
     Department of Transportation that prevents a vehicle from being
     started or operated unless the operator first provides a breath
     sample indicating that the operator has an alcohol level less
     than .025%.
        Section 3.  The provisions of 75 Pa.C.S. § 3715 are repealed.
        Section 4.  This act shall take effect as follows:
            (1)  The addition of 18 Pa.C.S. § 7513 shall take effect
        September 1, 2000.
            (2)  The addition of 18 Pa.C.S. § 7514 shall take effect
        September 30, 2000.
            (3)  The repeal of 75 Pa.C.S. § 3715 shall take effect
        September 1, 2000.
            (4)  This section shall take effect immediately.
            (5)  The remainder of this act shall take effect in 60
        days.

     APPROVED--The 22nd day of June, A. D. 2000.

     THOMAS J. RIDGE