Philadelphia Criminal Defense Blog
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: Trial Court May Deny Expungement Petition During Statute of Limitations
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Lloyd, 2025 PA Super 93, affirming the denial of the defendant’s petitions to expunge two sets of charges stemming from alleged domestic violence incidents against his former girlfriend. The defendant sought expungement after the cases were dismissed for lack of prosecution when the complainant failed to appear for multiple preliminary hearing listings.
Procedural History
The Commonwealth charged the defendant at two docket numbers with Aggravated Assault and related offenses. The charges were dismissed a few months later after the complainant failed to appear on three separate occasions. Although the court granted the defendant limited access relief under 18 Pa.C.S. § 9122.2 in November 2022, the defendant filed expungement petitions about six months after the dismissal of the charges. The Commonwealth objected to the expungement of the charges. The Commonwealth cited an alleged pattern of domestic violence-related charges even though all of the charges had been dismissed. After a hearing, the motions judge in the Philadelphia Court of Common Pleas denied the petitions, and the defendant appealed.
Legal Standard
The Pennsylvania Superior Court reviews the denial of an expungement petition for an abuse of discretion. Where charges are terminated without a conviction or acquittal, courts must balance the petitioner’s right to be free from the reputational harm of maintaining arrest records against the Commonwealth’s interest in retaining them. A court must apply the five-factor test outlined in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981). Those factors are:
Strength of the Commonwealth’s case;
Reasons for retaining the records;
The petitioner’s age, criminal record, and employment history;
Time elapsed since the arrest; and
Specific adverse consequences suffered.
The Commonwealth bears the burden of justifying the retention of the records when the prosecution admits it cannot meet its burden at trial. However, per Commonwealth v. Drummond, 694 A.2d 1111 (Pa. Super. 1997), records may still be maintained until the statute of limitations expires if the evidence is not wholly insufficient.
Arguments on Appeal
The defendant argued that:
The Commonwealth failed to meet its burden because it presented only affidavits of probable cause, which constituted inadmissible hearsay.
The Commonwealth’s reasons for opposing expungement (potential Rule 404(b) use and pending statute of limitations) were too general.
His criminal record was dated, and he faced adverse employment consequences.
The short time since dismissal (six months) should not weigh against expungement.
The Commonwealth and the trial judge countered that:
The affidavits, describing serious physical injuries and identifying defendant, showed a non-frivolous case even though the complainant refused to testify.
The charges were part of a pattern of domestic violence.
The statute of limitations had not expired, allowing potential refiling.
The defendant had not proven specific adverse consequences.
Superior Court Holding
The Superior Court affirmed, finding no abuse of discretion. In making its ruling, the Court emphasized the following:
Only six months had passed between dismissal and the expungement petitions.
The statute of limitations would not expire until 2027, supporting retention in case the complainant later cooperated. This is probably not true - it would be very difficult for the Commonwealth to reinstate charges given that the speedy trial rule likely continues to run even though the charges have been dismissed.
The defendant remained employed part-time and had not clearly demonstrated that the existence of the dismissed charges prevented full-time employment or caused other specific harm.
The Court concluded that the Commonwealth had provided sufficient justification to retain the arrest records and that the defendant had not shown a compelling right to expungement under the Wexler factors.
Practical Takeaway
Commonwealth v. Lloyd reinforces that even when charges are dismissed without a preliminary hearing, expungement is not automatic. Where the Commonwealth can show a plausible reason to retain records—such as the statute of limitations still running, evidence of serious injuries, and potential future cooperation by a complainant—courts may deny expungement even absent a conviction. Defense attorneys should develop a detailed record of specific adverse consequences when seeking expungement and be prepared to argue why retention of a dismissed case would be fundamentally unfair under the totality of the circumstances. Additionally, the defense probably should have argued that even if the statute of limitations had not expired, the speedy trial rule (Rule 600) likely would prevent the Commonwealth from reinstating the charges even if the Commonwealth decided to try to pursue the case again.
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 Supreme Court: Police May Lie To You During Interrogation
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Foster, re-affirming the rule that the police generally may lie to you during an interrogation and still use any statement they have obtained in court against you.
In Foster, the Court considered whether a detective’s misrepresentation that the defendant was “not a suspect,” despite having already obtained a search warrant for his DNA, rendered the defendant’s subsequent statements involuntary and inadmissible. The Court ultimately ruled in favor of the Commonwealth, holding that such a lie does not automatically invalidate a suspect’s otherwise voluntary statement under the Fifth Amendment to the United States Constitution.
The Facts of Foster
The case arose from a 2019 incident in Pittsburgh, where the complainant (K.C.) visited a bar, consumed alcohol, and later woke up with injuries and memory gaps. This prompted her to seek a sexual assault exam. The lab analysis revealed the presence of male DNA, and a Pittsburgh Police Detective began an investigation.
The defendant, who worked at the bar, was identified as someone who had contact with K.C. that night. After learning of this, the detective applied for and obtained a search warrant for the defendant’s DNA. Before executing the warrant, the police asked the defendant to come to the police station for an interview. The defendant voluntarily did so.
During the interview, the detective told the defendant twice that he was "not a suspect" and that he was just one of many people being interviewed. The detective did not advise the defendant of his Miranda rights because the defendant was not in custody. The interview remained cordial and non-confrontational. The defendant denied any sexual contact and voluntarily provided a DNA sample even after being told (late in the interview) that the detective had obtained a search warrant before he had arrived. Obviously, none of this was a great idea - the defendant did not have to give a false statement to the police or voluntarily surrender his DNA until the police obtained and executed a search warrant.
When the defendant’s DNA matched the DNA found in the rape kit, he was arrested and charged with rape of an unconscious person and sexual assault. He moved to suppress his statements, arguing they were involuntary because the detective lied about the nature of the encounter. He alleged that because the detective lied when telling him he was not a suspect, he was tricked into giving the statement and his DNA.
Suppression Court Grants Motion
The trial court granted the suppression motion, finding that the detective’s false statement deprived the defendant of the ability to make a “free and unconstrained choice” to speak. The court emphasized that the detective had already considered the defendant a suspect. This fact was reflected in the affidavit of probable cause used to obtain the DNA warrant. Although the court did not find that the detective acted in bad faith, it concluded that the false statement undermined the voluntariness of the statement.
Superior Court Reverses
The Commonwealth appealed to the Pennsylvania Superior Court. On appeal, the Superior Court reversed. Applying a totality-of-the-circumstances test, the panel noted that the defendant came to the police station voluntarily, was not restrained, used his cell phone freely, and was not subjected to coercive tactics. The interview was short and amicable. The court concluded that while the detective’s statement was misleading, it did not render Foster’s statement involuntary.
Pennsylvania Supreme Court Affirms: Misleading a Suspect About Their Status Does Not Render a Statement Involuntary Per Se
In a majority opinion by Justice McCaffery, the Pennsylvania Supreme Court affirmed the Superior Court. The Court reiterated that under both federal and state precedent, police deception does not automatically invalidate a suspect’s statement. The key inquiry remains whether the defendant’s will was overborne under the totality of the circumstances.
The Court rejected the idea that telling someone they are not a suspect, even when they are, automatically makes their statements inadmissible. The defendant was not in custody, the interview was non-coercive, and he voluntarily submitted to questioning and DNA testing. The Court also declined to adopt a per se rule automatically barring such misrepresentations. The police are allowed to lie to a suspect during an interrogation.
Importantly, while the Court acknowledged arguments from the defendant and amicus PACDL about the dangers of deceptive interrogation practices—including the risk of false confessions—it found that the defendant waived any broader claim under Article I, Section 9 of the Pennsylvania Constitution by failing to preserve the argument below.
What This Means for Criminal Defendants
This case underscores the fact that Pennsylvania courts continue to tolerate certain forms of police deception during voluntary interviews. Unless a suspect is formally in custody or subjected to inherently coercive tactics, courts are unlikely to suppress statements based solely on misleading remarks about their status.
However, the decision also offers a roadmap for defense attorneys challenging similar statements: had the defendant preserved his state constitutional claim under Article I, Section 9, the Court may have considered drawing a stricter line. Future cases may test whether Pennsylvania’s Constitution should provide broader protections than the Fifth Amendment.
Key Takeaway
If you are contacted by police and told you're “not a suspect,” that statement may not shield you from criminal charges. Anything you say can still be used against you. Always consult with an attorney before agreeing to any interview or providing evidence if there is any chance that you could be a suspect in the crime.
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.
Will a Gun Charge Ruin My Record? Not If You Fight It.
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
Being charged with a gun crime in Pennsylvania doesn’t automatically mean your life is over. It doesn’t necessarily mean you’re going to prison. And it certainly doesn’t mean you’ll never be able to move forward.
Yes, gun charges are serious. But they’re also often defensible. And with the right legal strategy, you may be able to avoid a conviction, protect your record, and keep your future on track.
Here’s what you need to know—and why the smartest thing you can do right now is get a lawyer who knows how to fight.
1. You Are Not Convicted Just Because You Were Charged
A gun arrest is not the same as a conviction. The police may have overreached. The stop may have been illegal. The gun may not have been yours.
Until and unless the Commonwealth proves its case in court beyond a reasonable doubt, you still have every opportunity to win—through suppression motions, trial, or negotiation.
2. There Are Real Paths to Avoid a Record
Depending on your background and the facts of your case, your lawyer may be able to:
Get the charges dropped
Win a motion to suppress the firearm due to an illegal search
Negotiate for a dismissal or diversion (like ARD or AFD in some cases)
Fight the case at trial and get an acquittal
And if you beat the case, you may be eligible to expunge the record entirely.
3. Even a Conviction Isn’t Always the End
Let’s say things don’t go perfectly, and a conviction happens. That still doesn’t mean it’s over. You may still be able to:
Appeal the case if your rights were violated
File for a pardon in the future, especially if this is a first offense
Clear your record later through post-conviction litigation
We’ve helped clients get their rights back years after a conviction—but the best time to fight is now.
4. Don’t Plead Guilty Without Exploring Your Options
Prosecutors may try to scare you into a guilty plea. Don’t take the bait. There is often far more room to fight than people realize:
Was the stop or search unconstitutional?
Was the gun really yours?
Did the officers follow the rules?
Do the elements of the charge even apply to your situation?
You won’t know unless an experienced attorney thoroughly reviews the case.
5. You Only Get One Record—Protect It
Your criminal record can affect:
Job opportunities
Professional licenses
Housing and immigration status
Future police encounters
But a smart, strategic defense can often prevent it from getting on your record in the first place.
Facing gun charges or appealing a criminal case in Pennsylvania?
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 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.