The Pennsylvania Superior Court has ruled that the portion of Pennsylvania’s DUI statute which defines acceptance into ARD as a “prior offense” for sentencing enhancement purposes is unconstitutional.

In Pennsylvania, a person charged with a first offense DUI is generally eligible for pretrial diversionary program called Accelerated Rehabilitative Disposition (ARD). One of the primary benefits of ARD is that upon successful completion of the program, the defendant is entitled to have the DUI charges dismissed and the corresponding criminal/arrest record expunged. ARD does not, and has never resulted in a conviction or finding of guilt.

Nevertheless, under prior Pennsylvania law, a DUI that was dismissed through the ARD program was treated as a prior conviction for purposes of the mandatory minimum sentence enhancement for repeat DUI offenders. That means that a person who successfully completed ARD would be sentenced as a second time offender for a subsequent DUI offense committed within 10 years of the prior DUI arrest.

The difference between the mandatory minimum sentence for a first offense DUI and a second offense is significant. For example, the mandatory minimum for a first offense DUI with a blood alcohol content (BAC) level of .16 and above is 72 hours, and the maximum sentence is six (6) months. For a second offense though, that same charge carries a mandatory minimum of ninety (90) days in jail and a maximum potential sentence of up to five (5) years in jail.

We, like many Pennsylvania DUI lawyers, have always felt that classifying an ARD as a “prior conviction” was completely inconsistent with the fact that ARD results in a dismissal, and is not in anyway an admission of guilt, a finding of guilt, or proof of any misconduct on the part of the defendant. Indeed, a person who is completely innocent of DUI may nevertheless choose to participate in the ARD program simply to avoid the risk, however slight, of conviction at trial.

Fortunately, on May 20, 2020, the Pennsylvania Superior Court issued its opinion in Commonwealth v. Chichkin, 2020 Pa. Super. 121, declaring that the provision of the DUI statute which treats prior ARD disposition as a “prior offense” violates the Due Process Clause of the United Stated Constitution. Accordingly, a sentencing judge may no longer increase a person’s sentence for DUI based solely on that person’s prior acceptance of ARD, without proof beyond a reasonable doubt that the person actually committed the prior DUI offense. As a practical matter, it will be extraordinarily difficult, if not impossible, to prove that a person committed a prior DUI offense where the charges have been disposed of through the ARD program. However, that is a a topic for a separate blog post.