Philadelphia Criminal Defense Blog

Zak Goldstein 6/7/25 Zak Goldstein 6/7/25

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?

Criminal Defense Attorney Goldstein Mehta LLC — 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.

Zak Goldstein 8/12/24 Zak Goldstein 8/12/24

PA Superior Court: Causing Fatal Accident While Drunk Driving May Be Third Degree Murder

Commonwealth v. Peters

Criminal Defense Lawyer Zak Goldstein — 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?

Criminal Defense Attorney Zak Goldstein — Goldstein Mehta LLC Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 3/16/23 Zak Goldstein 3/16/23

PA Superior Court: Jail Time Required After Third Conviction for Driving on DUI Suspended License

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rollins, holding that a defendant must be sentenced to six months’ incarceration for a third conviction for driving on a DUI suspended license under 75 Pa.C.S. § 1543(b). The appellate courts had previously concluded that trial courts could not constitutionally sentence defendants to jail time for the first two convictions because the penalty sections of the statutes do not contain maximum possible sentences, making the statute unconstitutionally vague for the first two offenses. The third offense, however, is graded as a misdemeanor of the third degree, so a court may sentence a defendant to jail.

The Facts of Rollins

The defendant had his driver’s license suspended due to a DUI conviction. He was charged with driving on a DUI suspended license in violation of 75 Pa.C.S. § 1543(b) three times. He was convicted for the first two, but the case is not clear as to what sentence he received. In 2021, he was arrested and charged with the offense for a third time. He pleaded guilty, but he argued that he could not receive jail time because the statute was unconstitutionally vague. The trial court, however, sentenced him to six to twelve months’ incarceration. The statute provides:

(iii) A third or subsequent violation of this paragraph shall constitute a misdemeanor of the third degree and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

The statute itself does not specify the maximum penalty, so the defendant argued that he could not receive jail time. Two appellate cases arguably supported his position. Specifically, in Commonwealth v. Eid, the defendant was convicted of the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1.1)(i), which applied when an individual was found to be driving with a suspended or revoked license and refused a breath test. Section 1543(b)(1.1)(i) provided that an individual found in violation of this section “shall, upon first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.” Eid was sentenced to a term of ninety days to six months’ imprisonment as well as a $1,000 fine.

On appeal, the Pennsylvania Supreme Court found that the statute was “unconstitutionally vague and inoperable” as the provision failed to provide a maximum term of incarceration. The Supreme Court affirmed Eid’s conviction and fine, but it vacated the imprisonment term as it declined to infer a maximum sentence, which would have forced the Court to “engage in sheer speculation as to which sentence the General Assembly intended.”

Shortly thereafter, in Commonwealth v. Jackson, the defendant pleaded guilty to the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1)(ii), which applied when an individual was found to have a second DWS violation. Section 1543(b)(1)(ii) provided “[a] second violation of this [crime] shall constitute a summary offense and, upon conviction [ ], a person shall be sentenced to pay a fine of $1,000[.00] and to undergo imprisonment for not less than 90 days.”

The Superior Court applied Eid and found that the section was unconstitutionally vague and inoperable because it contained identical language to that in Eid. The statute provided a mandatory minimum, but it provided no maximum, and the court could not guess as to what maximum the legislature intended. Therefore, the Jackson Court affirmed Jackson’s conviction and the imposition of the fine, but it vacated the house arrest portion of the sentence.

The Superior Court’s Decision

Here, the Superior Court affirmed the judgment of sentence and rejected the defendant’s argument. The Court found that the statute properly provides both a minimum and a maximum. It states that the minimum sentence shall be six months’ incarceration, and it also defines the statute as a third degree misdemeanor. The crime code provides that third degree misdemeanors may be punished by up to a year in jail, and so the absence of the specific maximum in the statute itself does not make the statute unconstitutionally vague because the offense is defined as a third degree misdemeanor. Therefore, the Court found that the section was not like the flawed sections in Eid and Jackson that apply to first and second offenses. Barring any successful additional appeals, the defendant will have to serve the six to twelve month jail sentence.

Facing criminal charges? We can help.

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 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.

Zak Goldstein 10/6/22 Zak Goldstein 10/6/22

PA Superior Court Reverses Itself and Finds ARD Counts as Prior Conviction in DUI Cases

An en banc Pennsylvania Superior Court has decided the case of Commonwealth v. Moroz, holding that proof of a prior acceptance of ARD counts as a prior offense for sentencing purposes in DUI cases. Notably, this decision overrules the recent panel decision in Commonwealth v. Chichkin which held that prior acceptance of ARD did not count for recidivist purposes.

Commonwealth v. Moroz - Does ARD Count As a Prior Offense in a DUI Case?

Police arrested the defendant for two DUIs on two separate dates. The defendant then entered the Accelerated Rehabilitative Disposition (ARD) program for his first DUI. The court deferred the defendant’s sentencing on other charges from his second arrest. Before sentencing could occur, the Pennsylvania Superior Court issued its opinion on Chichkin, holding that a DUI offense where ARD was accepted could not be used to impose an increased sentence for subsequent DUI offenses.

During trial, the defendant objected to being sentenced as a recidivist based on his prior ARD offense, citing Chichkin. The Commonwealth argued that if it could prove the first DUI offense beyond a reasonable doubt in an evidentiary hearing at sentencing, then it could establish the second DUI was a second offense even though the defendant had received ARD. The Commonwealth then requested an evidentiary hearing to address whether it could prove the first DUI beyond a reasonable doubt. This request was denied. The trial court held the defendant’s sentencing hearing , and the trial court relied on Chichkin in sentencing the defendant as a first-time offender.

The Commonwealth filed a timely appeal, raising the issues of whether the defendant’s prior acceptance of ARD for his first DUI qualified as a prior offense and whether Chichkin should be overruled.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed relevant case law to make its decision, as well as the DUI gradation statute, Section 3806. Section 3806 specifically mentions that acceptance of ARD constitutes a prior offense. Additionally, other cases such as Commonwealth v. Whalen and Commonwealth v. Scheinert demonstrate that a defendant must voluntarily agree to ARD, indicate he understands the proceedings, and agree to comply with any conditions imposed by the court. The defendant is also presumed to be aware of Section 3806 when accepting ARD. The Superior Court acknowledged that acceptance of ARD does not contain the same procedural safeguards of a conviction following a trial, but it deemed the safeguards of ARD sufficient due to the “intensive process” of the ARD program. Additionally, Whalen states that ARD can be equated with a conviction only under certain circumstances, such as sentencing on subsequent convictions.

Therefore, the Superior Court overruled Chichkin, vacating the defendant’s judgement of sentence, and remanding for further proceedings. The defendant will now face a significantly increased mandatory minimum when he is sentenced as a second-time offender barring further appeals. The Pennsylvania Supreme Court has accepted review of this issue, so this will not be the final word on whether ARD counts as a prior offense in DUI cases.

Facing criminal charges? We can help.

Criminal Defense Lawyers in Philadelphia — Goldstein Mehta LLC Criminal Defense Lawyers