Pennsylvania law defines a prior DUI conviction as “any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition (“ARD”) or other form of preliminary disposition before the sentencing date on the present violation.
When being sentenced on a DUI, the more offenses you have, the more serious the punishment. So a driver facing a second or subsequent offense DUI is looking at significantly greater penalties than a first time offender.
In 2020, in the case of Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), the Superior Court found that acceptance into the ARD program lacked sufficient procedural safeguards that accompany a traditional guilty plea or conviction at trial and could not be considered a “prior offense.” Therefore, unlike traditional prior convictions, the fact of a prior ARD was a fact that had to be “proven beyond a reasonable doubt” at trial if the court wished to impose enhanced penalties. As a result, many people who had previously completed ARD for a DUI and were facing a subsequent DUI charge were looking at being sentenced as a first-time offender because the simple fact that they previously completed ARD was insufficient to meet the criterial of a prior conviction for a DUI in order to enhance the possible penalties.
Despite this previous ruling in 2020, in an en banc (this means all the judges of the Superior Court, rather than just a panel of three) decision in early October, 2022, the decision in Chichkin was expressly overturned. The Court stated “Significantly, we disagree with the conclusion in Chichkin that a defendant’s prior acceptance into ARD cannot be categorized as a “prior conviction”… Although the “fact” that a defendant accepted ARD does not carry the same procedural safeguards of a conviction following a bench or jury trial, we deem the safeguards in place to be adequate.” Commonwealth v. Richards, No. 1673 EDA 2020. Notably, the court points out that the statute specifically states that acceptance into ARD will be considered a prior conviction so the defendant is on notice, and points out that ARD is a voluntary program which a defendant may reject if he “wishes to avail himself to his full panoply of constitutional rights.”
As a result of this most recent decision, a court may use prior acceptance or completion of ARD as a prior offense to enhance the penalties of subsequent offenses without any further proof at trial. While there is still one case pending before the Pennsylvania Supreme Court addressing the decision in Chichkin (Commonwealth v. Verbeck, argued 9/14/2022), it seems, for now at least, that the 2-year period where Chichkin ruled and second time offenders got a break is unfortunately over.
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