Philadelphia Criminal Defense Blog
PA Supreme Court: Prosecution May Not Remove Defendant from ARD for Truthful Answers
Criminal Defense Attorney Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jenkins, ruling that a judge cannot revoke a defendant’s Accelerated Rehabilitative Disposition (ARD) status simply for failing to mention an uncharged arrest on their ARD application where the prosecution never asked about uncharged arrests on the application itself. The decision limits the idea of “deception by omission” and makes clear that ARD participants can only be removed for violating actual, written conditions of the program, not for conduct that merely offends the “spirit” of rehabilitation.
The Facts of the Case
The defendant was arrested for DUI in May 2021 and later applied for ARD in Adams County. Before charges were filed for a second DUI arrest that summer, the defendant truthfully completed his ARD application, which required him to disclose any pending criminal charges but said nothing about uncharged arrests.
He was accepted into ARD, but when prosecutors later learned of the earlier uncharged arrest, they moved to revoke his participation, arguing that he violated ARD “Rule #1” prohibiting violations of the law and that omitting the arrest “defeated the spirit of ARD.” Both the trial court and the Superior Court agreed with the District Attorney. The defendant appealed the order kicking him out of ARD to the Pennsylvania Supreme Court.
The Supreme Court Reverses
Chief Justice Debra Todd, writing for a unanimous Court, rejected that reasoning. The justices held that the defendant had not violated any ARD condition. He didn’t commit a new crime after admission, and his application contained no misrepresentation because he simply was not asked about uncharged arrests.
The Court emphasized that ARD revocation must rest on a violation of specific conditions found in statute or rule, not on implied ones. Citing Commonwealth v. Foster and Commonwealth v. Rosario, the Court refused to invent an “implied condition” that defendants must self-report uncharged arrests. The ARD statute, 75 Pa.C.S. § 3807, and Rule 318 allow removal only if a participant commits a new offense or violates an enumerated condition, and neither applied here. In other words, a defendant must answer the questions asked truthfully, but they do not have to answer questions that are not asked.
Rejecting the Commonwealth’s “Spirit of ARD” Argument
The Commonwealth urged the Court to follow older cases like Boos and Jones, which allowed revocation when applicants concealed disqualifying convictions or lied on their forms. The Court distinguished those cases: the defendant’s application was truthful, and the ARD paperwork never asked about uncharged arrests. That was the Commonwealth’s problem, not his.
Justice Todd wrote that if prosecutors want such information, they must ask for it explicitly, not rely on defendants to guess what’s relevant. In her words, “We find no basis on which to expect an applicant to guess at what information he is expected to disclose.”
Takeaway
This decision restores clear limits on when ARD can be revoked. Courts cannot terminate a defendant’s participation based on uncharged conduct that occurred before admission or on vague notions of “deception by omission.”
If an ARD application doesn’t ask about arrests, an applicant has no duty to volunteer them. The opinion also suggests that counties should update their ARD forms if they want that information in the future. The ruling is an important reminder that the ARD process is governed by written rules, not by unchecked prosecutorial discretion or moral intuitions about candor.
Facing criminal charges or appealing a criminal case in Pennsylvania or New Jersey?
Goldstein Mehta LLC Criminal Defense
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court Finds Statute Allowing Police to Tell Hospital Staff to Draw Blood Without Warrant in Potential DUI Cases Unconstitutional
Pennsylvania Supreme Court Strikes Down Section 3755 as Facially Unconstitutional in DUI Blood Draw Case
Criminal Defense Attorney Zak T. Goldstein, Esquire
In Commonwealth v. Hunte, the Pennsylvania Supreme Court affirmed a trial court ruling finding that 75 Pa.C.S. § 3755, the “emergency room blood draw” statute, violates both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The Court found the statute facially unconstitutional because it authorizes warrantless blood draws from DUI suspects in the absence of a valid exception to the warrant requirement.
The Facts of Hunte
Police officers responded to a single-vehicle crash in Cumberland County in which the defendant and a passenger were ejected from the vehicle. The passenger died, and the defendant was unconscious when the police arrived. The scene contained alcohol containers and fentanyl patches, and first responders reported that the defendant admitted to drinking. At the hospital, without obtaining a warrant or consent, a Pennsylvania State Trooper invoked Section 3755 and directed medical personnel to draw the defendant’s blood.
Although a separate blood sample had already been taken for medical purposes, the blood tested by the Commonwealth was drawn specifically at the trooper’s request under Section 3755. The hospital even used a special form tailored to that statute. Of course, the police had not obtained a warrant authorizing them to order that blood draw. Accordingly, the defendant later moved to suppress the blood results, challenging the constitutionality of the statute.
Section 3755
The statute allows the police to direct medical personnel to conduct a warrantless blood draw in certain circumstances. It provides:
§ 3755. Reports by emergency room personnel.
(a) General rule.--If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.
(b) Immunity from civil or criminal liability.--No physician, nurse or technician or hospital employing such physician, nurse or technician and no other employer of such physician, nurse or technician shall be civilly or criminally liable for withdrawing blood or obtaining a urine sample and reporting test results to the police pursuant to this section or for performing any other duty imposed by this section. No physician, nurse or technician or hospital employing such physician, nurse or technician may administratively refuse to perform such tests and provide the results to the police officer except as may be reasonably expected from unusual circumstances that pertain at the time of admission.
The Statute Is Unconstitutional
Writing for the majority, Justice Wecht held that Section 3755 violates the Fourth Amendment and Pennsylvania’s analogous constitutional provision because it authorizes warrantless blood draws without fitting into any recognized exception to the warrant requirement such as consent or exigency.
The Court reasoned that:
Implied consent statutes cannot serve as an independent exception to the warrant requirement. The Court rejected the notion that drivers implicitly consent to blood draws simply by operating a vehicle in Pennsylvania.
Blood draws are searches under the Fourth Amendment and Article I, Section 8. Because they are invasive and reveal sensitive personal information, they require a warrant or a valid exception.
No categorical exigency exists in DUI cases. The Court followed United States Supreme Court precedent (Missouri v. McNeely) in which the US Supreme Court held that the natural dissipation of alcohol in the bloodstream does not create per se exigency.
Section 3755 is unconstitutional on its face because it authorizes searches in situations where the Constitution requires individualized inquiry and a warrant, and probable cause alone is not enough.
The Commonwealth’s Arguments
The Commonwealth argued that exigent circumstances justified the blood draw and that a subsequent search warrant for testing the blood cured any defect. The Pennsylvania Supreme Court dismissed these arguments, emphasizing that the initial draw—i.e., the search—occurred without a warrant or recognized exception.
The Court also rejected the Commonwealth's attempt to salvage the statute by arguing that it merely facilitates lawful conduct or does not prohibit obtaining a warrant. The Court noted that Section 3755 affirmatively requires blood draws without a warrant or consent.
Accordingly, the statute is unconstitutional. Police must obtain a search warrant prior to directing a blood draw or be able to establish exigent circumstances which make getting a warrant impractical. They may not convert medical personnel into state actors in order to get around the Fourth Amendment’s warrant requirement.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Pennsylvania Supreme Court Rules Prior ARD Cannot Be Used to Enhance DUI Sentences
Commonwealth v. Shifflett
Zak T. Goldstein, Esquire - Criminal Defense Attorney
In a significant decision for Pennsylvania DUI law, the Pennsylvania Supreme Court ruled on May 30, 2025, that using a defendant's prior acceptance of the Accelerated Rehabilitative Disposition (ARD) program to enhance sentences for subsequent DUI offenses violates constitutional protections under United States Supreme Court precedent such as Alleyne v. United States.
The Facts of Shifflet
The defendant was charged with DUI in 2022. The Commonwealth sought to treat this as a second offense based on his 2012 participation in the ARD for a prior DUI charge. Under Pennsylvania law, a second DUI offense carries mandatory minimum penalties including at least five days imprisonment, compared to six months probation for a first offense. The penalty is often more severe than that depending on the defendant’s BAC or whether the defendant had drugs in their system.
The defendant challenged the use of his prior ARD as a sentencing enhancement, arguing it violated his constitutional rights because it was not an actual conviction. The trial court agreed and sentenced him as a first time offender. The Commonwealth appealed, and the Superior Court reversed. The Superior Court ordered that the defendant be resentenced as a second time offender. The defendant sought review in the Pennsylvania Supreme Court, and the Supreme Court granted allocatur.
The Issue on Appeal
The case centered on the application of Alleyne v. United States. In Alleyne, the United States Supreme Court held that any fact which increases or triggers a mandatory minimum sentence must be submitted to a jury and proven beyond a reasonable doubt. The only exception is for prior convictions, which the Supreme Court has recognized need not be re-proven to a jury.
The critical question was therefore whether ARD acceptance falls within this "prior conviction exception."
The Court's Analysis
Chief Justice Todd, writing for the majority, held that ARD does not qualify as a prior conviction for several reasons:
ARD is Not a Conviction: The Court emphasized that ARD is explicitly a pre-trial diversion program where formal criminal proceedings are suspended. No conviction results from ARD acceptance.
No Constitutional Safeguards: Unlike criminal convictions, ARD proceedings lack fundamental protections:
No requirement to prove guilt beyond a reasonable doubt
No admission of guilt required from the defendant at all
No jury trial
No formal evidentiary proceedings
Limited confrontation rights
Not Equivalent to a Guilty Plea: The Court rejected arguments that ARD acceptance is similar to pleading guilty. Key differences include:
No guilty plea colloquy ensuring knowing and voluntary waiver of rights
No admission to the facts of the offense
No requirement that defendants be informed their ARD could enhance future sentences
Successful completion results in dismissal and expungement, not conviction
The Court's Holding
The Supreme Court therefore held that:
Using prior ARD acceptance to enhance DUI sentences without jury determination violates Alleyne
Section 3806 of the Motor Vehicle Code is facially unconstitutional insofar as it includes ARD in the definition of "prior offense"
The unconstitutional ARD provision is severable from the rest of Section 3806
The defendant was properly sentenced as a first offender
Implications for Pennsylvania DUI Defense
This decision has significant implications for DUI cases in Pennsylvania:
For Current Cases:
Defendants facing DUI charges who have prior ARD resolutions cannot be sentenced as repeat offenders, so they will typically be facing lower mandatory minimums and maximum sentences.
The Commonwealth must now prove any prior DUI convictions (not ARD) to enhance sentences
Defense attorneys should challenge any attempt to use ARD as a sentencing enhancement both for future DUI cases and for any other types of cases
For Past Cases:
Defendants sentenced as repeat offenders based solely on prior ARD may have grounds for an appeal or post-conviction relief if the case was recent
Those currently serving enhanced sentences should consult counsel about potential remedies
For Future ARD Decisions:
The decision removes a significant consequence of accepting ARD
Defendants can accept ARD without fear it will automatically enhance future sentences
This may make ARD a more attractive option for first-time offenders
What This Means for You
If you're facing DUI charges and have a prior ARD, this decision provides crucial protection against mandatory minimum sentences. The Commonwealth can no longer use your ARD acceptance as an easy path to enhanced penalties.
However, the Court left open the possibility that if the Commonwealth can prove the underlying facts of your prior DUI offense to a jury beyond a reasonable doubt, enhancement might still be possible. This would require a much more complex and difficult process for prosecutors.
The Dissenting View
Three justices dissented, arguing that ARD acceptance involves a knowing waiver of rights and that the statute could be applied constitutionally in some circumstances. However, the majority's view prevails, providing strong protection for DUI defendants.
Bottom Line
Commonwealth v. Shifflett represents a major victory for constitutional protections in DUI cases. It ensures that the severe consequences of repeat offender status cannot be imposed based solely on prior participation in a diversionary program designed to help first-time offenders avoid criminal convictions.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Causing Fatal Accident While Drunk Driving May Be Third Degree Murder
Commonwealth v. Peters
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Kevin Peters, holding that the trial court properly convicted the defendant of third degree murder for killing two people while driving drunk. The holding in this case conflicts with numerous cases of the Pennsylvania Supreme Court in which the Court has held that drunk driving normally does not show the malice necessary to sustain a third degree murder conviction. Nonetheless, an en banc panel of the Superior Court affirmed the defendant’s conviction in this case.
The Facts of Peters
The evidence at trial showed that on December 6, 2019, after an evening of heavy drinking, the defendant decided to drive home from Philadelphia, despite being significantly impaired. He had attended an open-bar event at Ruth’s Chris Steak House, followed by visits to two other bars, where he continued to consume alcohol. The defendant rejected offers for alternative transportation from co-workers and chose to drive, even though he was visibly intoxicated.
The Commonwealth’s evidence suggested that the defendant was very drunk. He appears to have exhibited highly dangerous driving behavior, including speeding, swerving, and making abrupt lane changes without signaling on Interstate 95. He even had trouble paying to exit the parking garage and instead pushed the gate up himself, damaging it. Multiple drivers reported his erratic driving to 911. At approximately 1:00 AM, while traveling at a speed of 115 miles per hour, Peters rear-ended a van on I-95, causing it to catch fire. Two passengers in the van were killed. Two other occupants of the van survived but suffered serious injuries.
The Trial
The defendant was arrested and charged with murder, homicide by DUI, and related charges. The jury convicted him of third-degree murder, aggravated assault, and other charges. His defense had focused primarily on the idea that he should not be convicted of murder because ordinary drunk driving, without more, even when it results in a fatal accident, does not show the mens rea of malice necessary for a third degree murder conviction. Myriad other serious charges would apply, but murder arguably would not. The jury rejected that defense and convicted him, and he received a lengthy state sentence. He appealed.
The Superior Court Appeal
Peters appealed to the Pennsylvania Superior Court. The Court went en banc to hear the case, meaning that nine judges decided to hear it instead of a normal panel of three. On appeal, Peters challenged the sufficiency of the evidence, particularly the finding of "malice" necessary to sustain the convictions for third-degree murder and aggravated assault.
The Superior Court affirmed. The court rejected Peters’s arguments, finding that his conduct demonstrated malice, which is a "conscious disregard for an unjustified and extremely high risk" to human life. The court highlighted the following aggravating factors:
The defendant's high level of intoxication, with a blood alcohol concentration (BAC) of 0.151%.
His decision to drive at extreme speeds, peaking at 115 miles per hour, despite being aware of his impairment.
His failure to brake until less than half a second before impact.
The extended period of reckless driving leading up to the crash, during which Peters nearly collided with other vehicles, was offered a ride home before he began to drive, and had trouble exiting the parking garage.
The court distinguished this case from other DUI-related cases by emphasizing that the defendant had multiple opportunities to recognize the risk he was creating but chose to continue his dangerous behavior. The court concluded that the defendant’s sustained recklessness and the extreme danger he posed justified the jury's finding of malice.
Notably, the lead opinion drew a dissent in which multiple judges joined. The dissent opined that the Commonwealth had shown no behavior which was not inherent in the crime of homicide by DUI or driving drunk in general, and so the Commonwealth had failed to show malice. Peters had also not been warned by anyone else - although other motorists had called 911, he did not know that they had called 911. The dissent also emphasized that as dangerous as drunk driving may be, the Supreme Court has generally held that drunk driving does not provide the evidence of malice necessary for murder. Therefore, the Pennsylvania Supreme Court may well grant review of this decision.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Criminal Defense Attorney Zak T. Goldstein, Esquire
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.