PA Supreme Court: Judges Do Not Have to Terminate DUI ARD After a Violation

The Pennsylvania Supreme Court has decided Commonwealth v. Worzel, holding that a trial judge retains discretion to keep a DUI defendant in the Accelerated Rehabilitative Disposition (ARD) program even after finding that they violated a condition of the program. The Commonwealth argued that Section 3807(e)(2) of the Vehicle Code requires the judge to terminate ARD and send the case back for prosecution whenever a DUI defendant commits a violation of the terms. The Supreme Court rejected that argument. It read the statute to incorporate Rule of Criminal Procedure 318(C), which permits the judge to terminate ARD but does not require it. A judge who finds a violation may instead extend supervision and let the defendant finish the program.

ARD and the Two Termination Provisions

ARD is a pretrial diversion program typically offered to first-time, non-violent offenders. If the defendant completes it, the court dismisses the charges and expunges the record. The Supreme Court created ARD through its rulemaking power, and Chapter 3 of the Rules of Criminal Procedure governs it. For DUI cases, the General Assembly has added more requirements in Section 3807 of the Vehicle Code.

Two provisions address what happens after a violation. Rule 318(C) provides that if the judge finds a violation, “the judge may order, when appropriate, that the program be terminated, and that the attorney for the Commonwealth shall proceed on the charges as provided by law.” Section 3807(e)(2) provides that “[t]he court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in the Rules of Criminal Procedure” if a DUI defendant fails to meet the statute’s requirements, is charged with or commits a crime, or “violates any other condition imposed by the court.” The rule says may. The statute says shall.

The Facts of Worzel

Police arrested Megan Worzel for DUI in Pike County in October 2020. It was her first DUI, and the Commonwealth offered her ARD. In June 2021, the trial court admitted her into the Pike County ARD program and placed her on six months of supervision. Under the county’s local ARD rules, she could not possess or consume alcohol during that period.

With two weeks left in the program, the probation office tested her, and she tested positive for alcohol. That was a violation of the conditions. She admitted in writing that she had been drinking, and the Commonwealth moved to terminate her ARD. After a hearing, the trial court found that she had violated the condition but denied the motion and extended her supervision by ninety days instead. She completed the extension in July 2022.

The Superior Court quashed the Commonwealth’s appeal from the extension order because the order was not appealable. The Commonwealth then filed a new criminal information charging the same DUI offenses. The trial court dismissed it, and the Superior Court affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed in an opinion by Justice Wecht. Every other justice joined, although Justice Brobson did not join the section on the rule of lenity.

The Court first found Section 3807(e)(2) ambiguous. The phrase “as prescribed in the Rules of Criminal Procedure” could modify “to proceed,” in which case the Rules govern how the prosecution moves forward. Or it could modify “shall direct,” in which case Rule 318(C) governs how the court responds to the violation, and the judge may terminate ARD, extend it, or decide that the violation does not warrant any consequence. The Court found both readings reasonable.

The Court then resolved the ambiguity in favor of judicial discretion for four reasons. First, the Commonwealth’s reading would create a constitutional conflict. Article V, Section 10(c) of the Pennsylvania Constitution gives the Supreme Court the power to make procedural rules and suspends any law inconsistent with those rules. The Court noted that the Commonwealth never explained how the legislature could override a rule of court, and it stated that “[t]his Court’s rulemaking power cannot be circumscribed by legislative fiat.” Second, ARD exists to rehabilitate, and the trial judge is in the best position to decide whether a violation warrants termination. Under the Commonwealth’s reading, “[a]n otherwise compliant defendant who demonstrates rehabilitation could lose that opportunity upon committing even the most trivial violation.” The Court gave the example of a defendant who cannot pay required fees or treatment costs because she is indigent. Third, the Court’s precedent, including Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985), has long treated the Supreme Court’s ARD rules as controlling the procedure for DUI ARD. Finally, the rule of lenity favored Ms. Worzel. The Court held that Section 3807 is a penal statute because ARD imposes monetary requirements and liberty restrictions under the threat of prosecution, so the defendant receives the benefit of any ambiguity.

What This Means for DUI ARD Participants

A violation of a DUI ARD condition does not mean automatic removal from the program. A positive alcohol test or an unpaid fee gives the Commonwealth a reason to file a motion, but a judge still decides what happens next. It may be possible to stay in the program. Rule 318(C) entitles the defendant to be heard, and that hearing matters because the judge does not have to terminate ARD. In Worzel, the trial judge relied on the fact that Ms. Worzel admitted the drinking and wanted more supervision and treatment. A defendant facing a termination motion should come to the hearing ready to show the same things. The holding that Section 3807 is a penal statute may also help defendants in other disputes over the DUI ARD statute. It is also good to see a court apply the rule of lenity as the decision could help in other cases involving ambiguous statutes or rules.

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