Accelerated Rehabilitative Disposition (ARD) and the Chichkin Case

Accelerated Rehabilitative Disposition in Pennsylvania (hereafter referred to as ARD) is a Pennsylvania Statute that is encoded at Title 75 Section  1552.  ARD is a minimally reporting probation, that varies from county to county in terms of the requirements, that can be used to resolve first-time offender cases that are either “driving under the influence” (DUI) or non-DUI offenses.  It is often used for offenses such as Retail Theft, Drug Possession, and Criminal Mischief.  It is seldom used for assaultive crimes such as Simple Assault, however in some counties that is an option.  However, the subject of this article is the current status of ARD as it pertains to resolving DUI offenses. Our Philadelphia DUI defense lawyers discuss.

What is the ARD Statute in Pennsylvania?

The statute listed above, is addressed in the DUI section of Title 75, Pa.C.S. Sec. 3802 et al, and in the various sections, it is specifically noted that “resolution of the offense of DUI by way of the ARD program is counted as a FIRST OFFENSE for purposes of the future grading of subsequent DUI offenses charges within the next ten (10) years.  In other words, ARD was basically considered “a conviction” under the grading section of the DUI law, 75 Pa.C.S. Sec. 3804, which states that there is a 10-year lookback period for DUI grading of offenses. Thus, if after an ARD disposition, an arrest for a new DUI occurs within 10 years of the individual’s placement on the ARD program, the subsequent arrest will then be counted as a “SECOND OFFENSE” with substantially higher fines, jail time, and license suspension required. A Norristown DUI defense lawyer can elaborate.

Updates to the Pennsylvania ARD Program

Fortunately, in May of 2020, the Superior Court of Pennsylvania decided that the treatment of ARD as essentially a “conviction” for grading future offenses within 10 years, was unconstitutional, and has completely changed the way district attorney’s offices are handling first offenders charged with DUI in Bucks County or throughout the state.  See Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super 2020).  The good news is that if you have a current DUI arrest, and you have had a prior ARD disposition of a DUI within the past 10 years that is being counted against you making the current offense a “higher penalty second offense”, that is no longer legal, and you will now be able to resolve your new or current offense as a first offense.  What the means, is if you were marijuana or drug DUI, or the highest tier alcohol DUI, you were looking at a mandatory minimum 90 days in jail, with supervision for up to 5 years.  It would have been a Misdemeanor of the first degree, which is not able to be expunged or sealed, and you would have had an 18-month license suspension and a $1,500.00 fine.  Now, in that same scenario, you are only looking at a mandatory 72 hours (3 days) in jail, a maximum of 6 months of supervision, a 12-month license suspension, and a $1000.00 fine.  You may also be eligible to get an interlock license or an occupational limited license now that your case is legally considered a first offense for sentencing purposes.

However, the new decision by the Superior Court has prompted district attorney’s offices to set their own policies on how they will first, treat new cases under the ARD program, and second, treat current DUI’s that now fall back to a “first offense” for purposes of sentencing.  For example, in Bucks County, the official policy is that although the current offense is legally a “first offense” which means that the maximum sentence can not exceed 6 months, they are requesting that Defendants serve half of what they would have served under the second offense category.  In practical terms, a 90 day highest tier second offense would now only be a 72-hour mandatory minimum, but they are requiring a term of 45 days of incarceration.  Generally, they do not object to house arrest if you are a county resident.  One might say, why would I agree to the additional time, however, it is a foregone conclusion that if you do not follow the District Attorney’s “suggestion” and you plead guilty, the judges will give you even more time; possibly the original 90 days to a 6-month jail sentence.

There are other counties that will simply treat the new DUI as a first offense as if the ARD case never existed, which is obviously very favorable to the Defendant.  Still, others have various alternatives, and in Monroe County, for example, the ARD program is no longer being used to resolve first offense DUI matters.  In that county, there are other options that may preserve your license, or keep you out of jail, but those options do involve a misdemeanor conviction that will be on your record for at least 5 years before it can potentially be “sealed” and no longer subject to employer review.  ARD is advantageous, because not only does it prevent jail time and substantial loss of license, it also means you will have your charges dismissed upon successful completion, and in some counties automatically expunged.

ARD Lookback Period and the Chichkin Case in Pennsylvania

Another point to consider is that due to the “Chichkin case”, and the Commonwealth’s frustration at the fact that ARD’s no longer can be counted as a first offense in the 10 year lookback period, the District Attorney’s offices have prepared various forms that Defendants are required to sign in order to be enrolled in the ARD program.   Lehigh County, for example, requires those who wish to be placed on the ARD program for a first offense DUI, to sign a new form entitled, “ARD stipulation of facts” in which a Defendant agrees that this current ARD may be used against him or her if they receive a subsequent DUI within the next 10 years.  Other counties have similar practices, and it is the consensus of Pennsylvania DUI defense attorneys that the legislature will change the ARD statute to address the “Chichkin loophole” as soon as they get the opportunity.

If You Were Charged, Contact Our Pennsylvania First Offense DUI Defense Lawyers Today

Until then, now is the time you want to resolve a pending DUI, that would have been a second offense had it not been for the Superior Court’s decision in Chichkin!  The Delaware County DUI defense attorneys at Young, Marr, Mallis & Associates are well informed of the current laws and practices throughout the Pennsylvania suburban counties, surrounding and including Philadelphia, and would love to discuss your current or prior case and how this new decision affects your future!