Underpaid McDonald’s workers seeking a living-wage have a stronger argument, at least in Halifax, Pennsylvania, where McDonald’s employees recently made a “citizens arrest” of an intoxicated man who had driven to the fast food joint with his minor child in tow. In fact, given how many people drive drunk to McDonald’s locations around the world, perhaps detaining DUI suspects should become a standard part of McDonald’s training. The Mickey D’s employees acted out of a concern for the safety of the child, and called police after detaining 32 year old Nicholas Apostolopoulos. And because a child was in the car, Apostolopoulos faces charges in addition to DUI.
The Pennsylvania State Police have charged Apostolopoulos with DUI, EWOC (endangering the welfare of a child), REAP (recklessly endangering another person), public drunkenness, drug paraphernalia and possession of a controlled Substance without a prescription. When A child is present in the car, a DUI is graded as a first degree misdemeanor punishable by up to five years in prison, even if the DUI is a first offense. By contrast, a normal first offense DUI is an ungraded misdemeanor with a maximum sentence of six months incarceration. EWOC is a first degree misdemeanor, while REAP is a second degree misdemeanor. Drug paraphernalia and possession of a controlled substance are both ungraded misdemeanors, but the drug possession charge carries some serious collateral consequences upon conviction, in the form of a six month driver’s license suspension and ineligibility for federally subsidized student loans and financial aid. The public drunkenness charge is a mere summary offense, and is the least of this defendant’s concerns.
Most first time drunk driving offenders qualify for a pretrial diversionary program known as ARD (accelerated Rehabilitative Disposition), which allows defendants to avoid jail time, shorten their driver’s license suspensions and ultimately escape without a criminal record. Ultimately, Dauphin County District Attorney Ed Marsico will decide whether Apostolopoulos receives ARD, but I suspect that this defendant will have an uphill battle, given the circumstances of the case. First of all, the defendant has a prior record for possessing instruments of crime. Some prosecutors will still grant ARD to a DUI defendant with a prior record, as along as he never had a prior DUI, however, the facts of this case are far more troubling than the defendant’s prior record. The presence of a child in the car has been an ARD disqualifier in every county in which I have ever practiced law.
Naturally, Children and Youth Services will be involved in this case as well. It is unclear whether the child lived with Apostolopoulos or whether he had partial custody. At any rate, CYS must determine whether the defendant should be allowed unsupervised contact with the child. Invariably, CYS will require Apostolopoulos to participate in drug and alcohol treatment and take parenting classes, as will the sentencing judge, should the defendant ultimately be convicted of some or all of the charges.
Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, home of Penn State University. He has extensive experience in DUI defense.