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DUI Sentencing and ARD: What’s a ‘Prior Conviction’?

In a victory for repeat DUI defendants who previously accepted an accelerated rehabilitative disposition (ARD), the Superior Court of Pennsylvania recently ruled that a driver’s prior acceptance of an ARD in a DUI case is not a “prior conviction” for the purpose of sentencing the driver for a subsequent DUI.

This ruling is significant because Pennsylvania’s DUI statute requires longer periods of incarceration for DUI with each subsequent offense.

What Is ARD?

In short, ARD is a pretrial disposition in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.

Under the ARD rules, the district attorney has the discretion to refuse to submit a case for ARD, and if the case is submitted for ARD the court must approve the defendant’s admission. The rules provide that the defendant must agree to the terms of the ARD, and that after the defendant has successfully completed the program, the charges will be dropped upon order of the court. Defendants who do not successfully complete ARD may be prosecuted for the offense with which they are charged. The district attorney’s utilization of ARD is optional under the rules.

The impetus behind ARD, as expressed in Pennsylvania case law, is that some “cases which are relatively minor or which involve social or behavioral problems … can best be solved by programs and treatments rather than by punishment.”

Two Appeals

With respect to the matter at hand, the Superior Court reached its ruling after considering two separate appeals brought by DUI defendants.

In Commonwealth v. Chichkin, a driver was arrested for DUI and later found guilty in a Municipal Court of two counts of DUI-general impairment. He was sentenced to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed because he had accepted ARD for a prior DUI offense.

In Commonwealth v. Roche, a driver entered a negotiated guilty plea in Municipal Court for one count of DUI-general impairment with accident. The Commonwealth noted that it was a “mandatory minimum matter.” The case proceeded to sentencing, at which time the Municipal Court stated that the driver’s record “showed a prior offense” and thus her guilty plea would constitute a second offense. The driver’s attorney objected to the court’s characterization, arguing that because the alleged prior offense was an acceptance of ARD, it should not recidivize and that the DUI mandatory minimum statute was unconstitutional. The Municipal Court rejected the argument and imposed a sentence of 30 days to four months’ imprisonment and two years’ concurrent probation. The 30 days’ mandatory minimum sentence was likewise imposed based upon the fact that the driver had accepted ARD for a prior DUI offense in 2010.

Notably, Pennsylvania’s statutory authority, 75 Pa.C.S. §3806(a), defines prior acceptance of ARD in a DUI case as a “prior offense” for DUI sentencing enhancement purposes, and in reaching its ruling the Superior Court concluded that the statutory language offends the Due Process Clause and is therefore unconstitutional.

The court reasoned:

Due process considerations protect those accused of committing a crime from conviction “except upon proof beyond a reasonable doubt.” … Under the statutory scheme at issue here, Appellants’ prior acceptances of ARD are treated as prior convictions of DUI, absent the constitutional protections of a trial or guilty plea — most significantly, a finding or admission of guilt beyond a reasonable doubt. Accordingly, if the Commonwealth seeks to enhance a defendant’s DUI sentence based upon that defendant’s prior acceptance of ARD, it must prove, beyond a reasonable doubt, that the defendant actually committed the prior DUI offense. … Any lesser standard would violate due process concerns.

Conclusion

The decision is good news for the two drivers, who will be re-sentenced as first-time offenders.

As always, if you are facing a DUI charge, we recommend that you consult with a qualified DUI attorney immediately to ensure that your legal rights are protected and that you exercise all available defenses.