PA Superior Court: ARD Does Not Count as Prior Offense for DUI Sentencing

Philadelphia Criminal Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Chichkin, holding that a defendant’s prior acceptance of an accelerated rehabilitative disposition (“ARD”) does not qualify as a prior conviction for purposes of the DUI sentencing statute. This decision is a huge win for DUI defendants because many people will no longer be exposed to longer mandatory minimum sentences for a second DUI arrest if the prior arrest was resolved with the ARD program. It also fully recognizes that ARD does not count as a conviction or admission of guilt for any purposes.

Commonwealth v. Chichkin

The defendant was arrested and charged with Driving Under the Influence for an incident that occurred on December 8, 2017. His case proceeded to trial in the Philadelphia Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). The Municipal Court sentenced him to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i) because the defendant had accepted ARD for a prior DUI offense in 2013. If he had not had a prior ARD acceptance, then the mandatory minimum for his DUI sentence would have instead been 48 hours’ incarceration.

The defendant filed a timely motion for reconsideration seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” The court granted reconsideration and vacated the defendant’s sentence. However, following a hearing on the post-sentence motion, the Municipal Court denied reconsideration and reinstated the original sentence. The defendant filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ but stayed the defendant’s sentence pending appeal. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

Why Does it Matter if I Have a Prior Conviction for DUI? 

The reason it matters is because if you have a prior DUI, then you will be subjected to an enhanced mandatory minimum if you are convicted of a subsequent DUI. 75 Pa.C.S. § 3804 lists the criminal penalties for a defendant after a conviction for DUI. These penalties can be quite harsh, especially considering that these are mandatory sentences and therefore the judge has no discretion in the imposition of the sentence. 

For example, let’s assume a defendant is convicted of DUI while under the influence of controlled substances and this is his first DWI conviction. Because it is the defendant’s first conviction, the mandatory minimum for a first offense involving a controlled substance is three days’ incarceration. However, let’s assume that this defendant actually had a prior conviction for drunk driving and then is found guilty of DWI while under the influence of controlled substances. The mandatory minimum for this offense is now 90 days’ incarceration. This means that the defendant’s prior record can have a dramatic effect on his or her sentence. 

Why Would ARD Count as a Prior Conviction? 

Under the language of the statute, entry into the ARD program should count as a prior conviction. 75 Pa.C.S. § 3806 defines what constitutes a prior conviction for the DUI statute. According to 75 Pa.C.S. § 3804, if you previously accepted an ARD offer, the ARD counts as a prior conviction and thus you would be subjected to the enhanced penalties for second time offenders. In the instant case, the defendant was appealing this issue based on his argument that the statute was unconstitutional.

The Superior Court’s Decision 

The Superior Court found that it was unconstitutional to count the defendant’s prior ARD as a prior conviction. In reaching its decision, the Pennsylvania Superior Court looked at previous appellate decisions. In its research, the Superior Court found that it was not unconstitutional to give a defendant an enhanced or mandatory sentence based on a prior conviction. However, the Superior Court found that it is unconstitutional to give a defendant an enhanced or mandatory sentence based on a fact that a defendant was not found guilty of beyond a reasonable doubt by a trier of fact (i.e. a jury or a judge). 

This scenario used to be common in drug possession cases (for example, selling drugs within a certain distance of a school or based on the weight of a drug). Not too long ago, a defendant could receive an enhanced mandatory minimum sentence because the Commonwealth presented evidence that the defendant had a certain amount of drugs or was within a certain amount of feet near a school. However, Pennsylvania courts found that this was unconstitutional. They held that in order for a defendant to receive this enhanced or mandatory sentence, the trier of fact must specifically find that the defendant committed the conduct which increased the penalty in question beyond a reasonable doubt. It was not sufficient for the Commonwealth to merely present this fact during its case-in-chief or to the judge at sentencing. Instead, the trier of fact had specifically find that the defendant committed this fact beyond a reasonable doubt before a defendant could receive the enhanced sentence. 

This resulted in many Pennsylvania mandatory minimum statutes being struck down because they allowed the judge to make findings on mandatory minimum issues at sentencing by a preponderance of the evidence standard instead of requiring that these things be found by a jury beyond a reasonable doubt.

Accordingly, the Superior Court analogized these prior decisions which struck down mandatory minimum sentences in Pennsylvania to the ARD statute, which allowed for a defendant to receive an increased sentence despite no finding of guilt by a jury beyond a reasonable doubt. Therefore, the question was whether a prior ARD qualified as a “fact” or a prior conviction. 

After reviewing these prior decisions, the court found that admission into an ARD program could not be considered a prior conviction for any offense other than DUI’s. Further, when the Superior Court analyzed the procedure of accepting an ARD offer, it found that because a defendant does not have to admit his guilt and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt, a defendant’s prior acceptance of ARD does not qualify as a “prior conviction.” As such, the Superior Court found that 75 Pa.C.S. § 3806 and § 3804 are unconstitutional. The defendant will be re-sentenced as a first-time offender.

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