Pennsylvania ARD No Longer a Prior Offense of DUI

Posted in ARD,DUI on May 21, 2020

The Pennsylvania Superior Court issued a ground breaking decision and held that participation in Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) program for a DUI offense cannot be used to treat a subsequent driving under the influence case as a second or subsequent offense for mandatory minimum sentencing purposes.  This decision will have a huge impact on driving under the influence cases that are currently pending throughout Pennsylvania.

Pennsylvania ARD Program

ARD is a pretrial diversionary program that is used across Pennsylvania to resolve many relatively minor misdemeanor and even some felony cases, such as drug possession, furnishing alcohol to minors, theft, marijuana possession, and driving under the influence.  With ARD, a person pleads not guilty to the charges, and the person agrees to complete certain requirements and comply with a list of conditions in order to participate in the program.  By doing what is required, the person successfully completes the program, and the person can normally seek to have the charges dismissed and then expunged.

Generally speaking, ARD is NOT considered a “conviction” for most legal purposes.  Pennsylvania law does state an ARD acceptance in a DUI case is a “prior offense” of DUI for mandatory minimum sentencing purposes.  This means that if a person is charged with a DUI and had an ARD resolution within the prior ten years, then the ARD case would count as a “prior offense” and thereby make the new case a second offense for mandatory minimum sentencing purposes.  A second offense of driving under the influence carries much more severe mandatory minimum penalties when compared to a first offense.

ARD is Not a Conviction

In the Superior Court’s May 20^th opinion, it held that the Pennsylvania law that makes an ARD resolution a “prior offense” is unconstitutional for DUI sentencing purposes.  The Court stated that a prior offense would require a person to have been proven guilty beyond a reasonable doubt, which would mean that the person was convicted or had pleaded guilty.  Because ARD is not a conviction and does not require the person to admit guilt, a sentencing court cannot consider ARD as a prior offense and thereby invoke mandatory minimum sentences associated with a second offense of DUI.  Simply stated, this means that ARD will not be used to increase the mandatory minimum sentences in DUI cases.

However, it must be emphasized that there is a difference between mandatory sentences and discretionary sentences.  Having a “prior offense” of DUI increases a mandatory sentence, meaning a sentence that a judge is bound by law to impose.  A judge can still use discretion, meaning the judge’s opinion that a particular case warrants or deserves a more severe punishment.  When considering the appropriate sentence, a judge is permitted to consider a prior ARD resolution if the matter was not expunged.  If the case is expunged, the government is permitted to keep some records of the case, but the expungement law limits how those records can be used.  Legally, the government is only permitted to use those expunged records for ARD eligibility consideration purposes, identifying people in criminal investigations, or in determining grading of subsequent offenses.  The expungement law does not state that a sentencing judge can consider an expunged DUI charge when determining an appropriate sentence.

ARD Completion Not Automatic Expungement

ARD completion does not automatically result in the expungement of charges.  Most attorneys that provide representation in ARD cases take care of the expungement work for a client.  However, many clients choose to represent themselves and fail to take the last step of expunging.  When the case is not expunged, the charges remain on the court records and can be considered and used by a sentencing judge without limitation.  It is only if the person took that final step of expunging the record that the person can argue that the prior ARD cannot be considered by the judge for sentencing purposes.

This case is most likely going to have a big impact on repeat DUI cases across Pennsylvania.  While the district attorney’s office is likely to appeal the decision to the Pennsylvania Supreme Court, many prosecutors will consider the current decision when deciding how to resolve drunk driving cases in the near future.  The important thing is that people that have pending DUI charges retain an experienced DUI attorney that stay on top of this issue.