Philadelphia Criminal Defense Blog
PA Superior Court: ARD Does Not Count as Prior Offense for DUI Sentencing
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Chichkin, holding that a defendant’s prior acceptance of an accelerated rehabilitative disposition (“ARD”) does not qualify as a prior conviction for purposes of the DUI sentencing statute. This decision is a huge win for DUI defendants because many people will no longer be exposed to longer mandatory minimum sentences for a second DUI arrest if the prior arrest was resolved with the ARD program. It also fully recognizes that ARD does not count as a conviction or admission of guilt for any purposes.
Commonwealth v. Chichkin
The defendant was arrested and charged with Driving Under the Influence for an incident that occurred on December 8, 2017. His case proceeded to trial in the Philadelphia Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). The Municipal Court sentenced him to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i) because the defendant had accepted ARD for a prior DUI offense in 2013. If he had not had a prior ARD acceptance, then the mandatory minimum for his DUI sentence would have instead been 48 hours’ incarceration.
The defendant filed a timely motion for reconsideration seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” The court granted reconsideration and vacated the defendant’s sentence. However, following a hearing on the post-sentence motion, the Municipal Court denied reconsideration and reinstated the original sentence. The defendant filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ but stayed the defendant’s sentence pending appeal. The defendant then filed a timely appeal to the Pennsylvania Superior Court.
Why Does it Matter if I Have a Prior Conviction for DUI?
The reason it matters is because if you have a prior DUI, then you will be subjected to an enhanced mandatory minimum if you are convicted of a subsequent DUI. 75 Pa.C.S. § 3804 lists the criminal penalties for a defendant after a conviction for DUI. These penalties can be quite harsh, especially considering that these are mandatory sentences and therefore the judge has no discretion in the imposition of the sentence.
For example, let’s assume a defendant is convicted of DUI while under the influence of controlled substances and this is his first DWI conviction. Because it is the defendant’s first conviction, the mandatory minimum for a first offense involving a controlled substance is three days’ incarceration. However, let’s assume that this defendant actually had a prior conviction for drunk driving and then is found guilty of DWI while under the influence of controlled substances. The mandatory minimum for this offense is now 90 days’ incarceration. This means that the defendant’s prior record can have a dramatic effect on his or her sentence.
Why Would ARD Count as a Prior Conviction?
Under the language of the statute, entry into the ARD program should count as a prior conviction. 75 Pa.C.S. § 3806 defines what constitutes a prior conviction for the DUI statute. According to 75 Pa.C.S. § 3804, if you previously accepted an ARD offer, the ARD counts as a prior conviction and thus you would be subjected to the enhanced penalties for second time offenders. In the instant case, the defendant was appealing this issue based on his argument that the statute was unconstitutional.
The Superior Court’s Decision
The Superior Court found that it was unconstitutional to count the defendant’s prior ARD as a prior conviction. In reaching its decision, the Pennsylvania Superior Court looked at previous appellate decisions. In its research, the Superior Court found that it was not unconstitutional to give a defendant an enhanced or mandatory sentence based on a prior conviction. However, the Superior Court found that it is unconstitutional to give a defendant an enhanced or mandatory sentence based on a fact that a defendant was not found guilty of beyond a reasonable doubt by a trier of fact (i.e. a jury or a judge).
This scenario used to be common in drug possession cases (for example, selling drugs within a certain distance of a school or based on the weight of a drug). Not too long ago, a defendant could receive an enhanced mandatory minimum sentence because the Commonwealth presented evidence that the defendant had a certain amount of drugs or was within a certain amount of feet near a school. However, Pennsylvania courts found that this was unconstitutional. They held that in order for a defendant to receive this enhanced or mandatory sentence, the trier of fact must specifically find that the defendant committed the conduct which increased the penalty in question beyond a reasonable doubt. It was not sufficient for the Commonwealth to merely present this fact during its case-in-chief or to the judge at sentencing. Instead, the trier of fact had specifically find that the defendant committed this fact beyond a reasonable doubt before a defendant could receive the enhanced sentence.
This resulted in many Pennsylvania mandatory minimum statutes being struck down because they allowed the judge to make findings on mandatory minimum issues at sentencing by a preponderance of the evidence standard instead of requiring that these things be found by a jury beyond a reasonable doubt.
Accordingly, the Superior Court analogized these prior decisions which struck down mandatory minimum sentences in Pennsylvania to the ARD statute, which allowed for a defendant to receive an increased sentence despite no finding of guilt by a jury beyond a reasonable doubt. Therefore, the question was whether a prior ARD qualified as a “fact” or a prior conviction.
After reviewing these prior decisions, the court found that admission into an ARD program could not be considered a prior conviction for any offense other than DUI’s. Further, when the Superior Court analyzed the procedure of accepting an ARD offer, it found that because a defendant does not have to admit his guilt and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt, a defendant’s prior acceptance of ARD does not qualify as a “prior conviction.” As such, the Superior Court found that 75 Pa.C.S. § 3806 and § 3804 are unconstitutional. The defendant will be re-sentenced as a first-time offender.
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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. 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.
ARD and Other Pre-Trial Diversionary Programs That Can Help You Keep a Clean Record
I have never been arrested before. Can I keep this case off my record?
We often represent clients who are charged with Driving Under the Influence ("DUI"), misdemeanors, or other less serious felonies who may not necessarily be facing jail time but are extremely concerned about keeping their record clean for work, licensing, immigration, or educational purposes. In many cases, if you have never been arrested before or have not been arrested for a long time, our criminal defense attorneys can help you in applying to pre-trial diversionary programs which will allow you to avoid a conviction and even have the record of the arrest expunged and destroyed.
We are most successful in keeping obtaining entry into a pre-trial diversionary program for clients who have never been arrested before. In some cases, we are even able to obtain entry into a diversionary program even when the client has been arrested before if the arrests are relatively old. Two of the most common pre-trial diversionary programs which can be used to avoid a conviction are ARD and AMP, and we are frequently successful in obtaining ARD or AMP for our clients.
What is ARD? (The Accelerated Rehabilitative Disposition Program)
ARD is probably the most common diversionary program in Pennsylvania state court because it exists in each county in Pennsylvania. ARD is a pre-trial diversionary program which allows a defendant with no prior criminal record (or an extremely old, minor arrest or juvenile matter) to pay a fine, complete community service, serve a relatively short period of unsupervised probation, and then have all of the charges from the case dismissed and expunged. In DUI cases, the ARD program may include a short driver’s license suspension. Depending on the level of the DUI, the license suspension will be for a month or two instead of the one-year year license suspension which is commonly seen even for a first DUI conviction.
ARD is typically offered only in misdemeanor cases. However, we have been able to obtain ARD for felony defendants with particularly deserving circumstances. ARD can be expensive, but when offered, it does provide a guarantee that if the defendant completes the conditions, then the case and criminal record will go away and the charges will be expunged. ARD is almost never offered for violent crimes, but it is commonly offered for low-level theft offenses and Driving Under the Influence. Because ARD results in dismissal of the charges and expungement, we typically recommend that clients who are eligible for ARD accept the program. However, each case is different, and in rare cases, it may be advisable to fight the charges.
The Accelerated Misdemeanor Program ("AMP")
A second common pre-trial diversionary program which exists only in Philadelphia is the Accelerated Misdemeanor Program ("AMP"). The Accelerated Misdemeanor Program also typically allows the defedant to avoid any period of probation or jail time, and in many cases, it allows for the dismissal and expungement of charges without a conviction. Depending on the defendant's criminal record, there are two levels of AMP to which the defendant may be admitted - AMP I and AMP II.
AMP I requires the defendant to pay a fine, complete community service, and remain arrest-free for approximately two months. If the defendant is able to complete those conditions, then the charges will be dismissed and the defendant may file for an expungement. The expungement is not automatic and requires an additional filing fee and hearing, but once the expungement is granted, the records will be destroyed and the case will be removed from the defendant's record.
AMP II, which may be offered to defendant's with lengthier criminal records, may result in a conviction or participation in a program called Section 17. In many cases, we are able to obtain Section 17 or Section 18 dispositions for defendants who have prior arrests or convictions but are admitted into AMP II. The conditions of Section 17 and Section 18 vary depending on the case, but in general, both require the defendant to plead no contest, complete a period of probation, pay a fine, and possibly complete various other conditions such as job training or drug treatment. If the defendant is successful, then the charges can be dismissed and expunged. If the defendant is not successful, then the judge may find the defendant guilty of the charges and sentence the defendant to either probation or jail time. In cases where the defendant already has a lengthy criminal record, we may be able to obtain an AMP II offer which requires a guilty plea and conviction but will not result in an actual probationary or jail sentence if the defendant is able to complete the conditions.
Other Diversionary Programs
In addition to ARD and AMP, there are other diversionary programs both in Philadelphia and the surrounding counties. Many of the counties have specialized DUI treatment courts, drug treatment courts, Intermediate Punishment, Veteran's Courts, and Mental Health courts. The programs vary from county to county and depending on the case.
Fighting the Case
Finally, when the client is not eligible for ARD or other pre-trial diversionary programs, we have been extremely successful in defending misdemeanor charges both at trial in the Philadelphia Municipal Court or through pre-trial motions such as Motions to Suppress or Speedy Trial motions. If we are able to beat the case at trial or through the use of a pre-trial motion, we are typically able to move for an expungement once the case has been dismissed or we have obtained an acquittal. Additionally, summary convictions can often be expunged after five years, and some misdemeanor convictions can be partially expunged pursuant to a new limited access order law after ten years.
Whether you are a first-time offender or have been arrested before, if you are facing criminal charges, you need the advice and representation of one of our skilled criminal defense attorneys immediately. We have helped countless clients avoid conviction and permanent records both at trial, through the use of pre-trial motions, and through applications to pre-trial diversionary programs. Call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our Philadelphia criminal lawyers.
I got arrested for DUI. Do I have to plead guilty?
If you are charged with DUI in Pennsylvania or New Jersey, you need an experienced, aggressive criminal defense attorney who knows the law inside and out and can review your case for all possible defenses.
Every day I speak with people who have been charged with Driving Under the Influence (“DUI”) and think that because they were driving drunk and got pulled over, they have to plead guilty. They are often surprised to learn that there are often defenses to many DUI cases.
First, if you don’t have a record, sometimes it is best to take a deal and enter the ARD program. When a defendant does not have a record and was not involved in a serious accident, the Commonwealth will usually offer ARD. ARD stands for Accelerated Rehabilitative Disposition. The program involves serving a short period of probation, a license suspension, and paying fines and court costs. The defendant does not have to plead guilty to enter into the ARD program, and the arrest and case will be expunged if the defendant successfully completes the program. If the defendant fails to complete the probation, then the defendant will be removed from the program and retain the right to litigate pretrial motions or proceed to trial. Even when the evidence suggests a strong defense, ARD is often a good option because it provides the only guarantee of an expungement at the end of the case. ARD is typically only available for someone who does not have any prior convictions, and it is rarely offered twice. The Commonwealth often offers ARD for non-DUI misdemeanors.
Second, if ARD is not offered or the defendant wishes to fight the case, there are a number of potential defenses that an experienced criminal defense and DUI attorney may be able to present. These defenses include motions to suppress. The motion to suppress is a motion filed by the defense attorney arguing that because the police engaged in some unlawful conduct, such as stopping or searching the defendant illegally, the evidence of intoxication such as the blood test should be excluded at trial. Other potential defenses may include speedy trial motions, double jeopardy motions, and motions to exclude testing results due to a failure to properly calibrate the testing equipment. Additionally, there are many other complicated procedural rules which the police and prosecutor have to follow in order to bring a successful prosecution. The failure to follow each one of these rules could result in the dismissal of the case or exclusion of the evidence. Finally, if pre-trial motions do not result in dismissal of the charges, an experienced defense attorney may be able to challenge the Commonwealth’s evidence that the defendant actually operated the vehicle or was intoxicated.
DUI carries the potential for serious penalties in terms of mandatory minimum incarceration periods, criminal records, and license suspension. If you are charged with DUI in Pennsylvania or New Jersey, you need an experienced, aggressive criminal defense attorney who knows the law inside and out and can review your case for all possible defenses. You need an attorney who does not handle these cases “part-time.” Your freedom, driver’s license, and reputation depend on it. If you have been charged with DUI in Pennsylvania or New Jersey, contact the Philadelphia DUI defense lawyers of Goldstein Mehta LLC for a free consultation today.
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