We’ve been arguing for a good period of time that it is unconstitutional for Pennsylvania’s prosecutors to invoke subsequent offender penalties for DUI drivers who previously were granted ARD for a prior DUI. ARD is a program for first offenders that removes the jail penalties and dramatically reduces or eliminates applicable driver’s license suspensions. Many drivers facing a first-offense DUI prosecution forego their right to trial simply to get a guarantee that they won’t go to jail or suffer a one year driver’s license suspension. Acceptance of ARD is not proof that the person actually would have been convicted. Additionally, someone who completes the ARD program is eligible for dismissal and expungement of the charges. So why should the arrest count as a prior conviction if the person is later convicted of another DUI?
Today, the Pennsylvania Superior Court has addressed this issue and held that treating a DUI conviction as a second offense for mandatory sentencing purposes violates Alleyne v. United States, 570 U.S. 99 (2013). This case stands for the proposition that a sentence may not be enhanced based upon facts which are not proven beyond a reasonable doubt to a jury. There is an exception for prior convictions. But ARD is not a conviction, so the Superior Court held the exception is not applicable. The upshot is that the Trial Courts of Pennsylvania should now begin following today’s precedent (the consolidated cases of Commonwealth v. Chichkin and Commonwealth v. Roche). This means that if someone completed ARD in the past, and was facing a mandatory minimum sentence of 90 days in jail for a second offense “highest rate tier” DUI, that person is now only facing a mandatory minimum of 72 hours in jail.
Today is a huge day for people dealing with a second DUI arrest after having been granted ARD in the past, and an even bigger day for the lawyers who represent them and have been fighting this battle over the last year or so.
Update November 30, 2021: Prosecutors have largely gotten around this decision for newer ARD cases by requiring that defendants waive this defense as a condition of being admitted to ARD. This does not impact people who got ARD before they started doing this, but it will likely invalidate this decision for people who have gotten ARD after the decision. Make sure to bring this point up with your lawyer.
2 comments:
What about the dmv suspension. For example 1st offense general impairment is no suspension, second offense is 12 month suspension.
That’s a good point. The law no longer permits subsequent offender jail sentences to be based upon a prior ARD for DUI, but license suspensions have always been higher if you have a prior ARD. This flies because the statutes for the penalties are different. Also, prosecutors are getting around the prohibition on subsequent offender jail penalties by forcing people to waive this defense as a condition of getting into ARD. This likely won’t apply to older cases but will apply to cases where ARD was granted in the last year or so.
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