Under Pennsylvania’s DUI sentencing scheme, DUI offenders with “prior offenses” within ten years face heightened minimum and maximum penalties. In two recent court cases decided jointly by the Pennsylvania Superior Court, Commonwealth v. Chichkin and Commonwealth v. Roche, two defendants challenged sentences they received for “second in ten” DUI cases.

Both defendants were charged out of Philadelphia with their second DUI offenses within a ten year period after previously successfully completing an ARD program for their first DUI.  At the time of sentencing, both defendants argued that it was unconstitutional for them to be sentenced as prior offenders because ARD could not be considered a “prior offense” under Pennsylvania’s DUI statute.  The basis for this argument is the fact that placement on ARD does not constitute a conviction.  ARD is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant’s successful participation in a rehabilitation program. Following the successful completion of the program, the charges are dismissed.

The trial court in each case denied the defendants’ arguments concerning ARD and sentenced both defendants as if both had a previous DUI conviction.  On appeal, the defendants argued that their sentences were illegal because ARD placement does not count as a conviction.

On appeal, the Superior Court agreed with the defendants and held that it was unconstitutional for the Commonwealth to use a defendant’s past acceptance and completion of ARD as a prior conviction, as no conviction has occurred. The Court reasoned that it was wrong to presume a person is guilty of a crime for simply completing the ARD program. The ARD program does not require an admission of guilt by the defendant and does not require the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty. It is merely an agreement to complete a rehabilitation program in lieu of criminal charges. If the judges interpret the completion of ARD to be a guilty verdict then they are overstepping their constitutional authority. As such, the Pennsylvania Superior Court ruled it was unconstitutional to impose increased penalties for “second-time” offenders when their first offense was completed through ARD.

Chichkin is a monumental decision that is going to lead to sweeping changes in the Pennsylvania DUI landscape.  In light of Chichkin, District Attorney’s Offices across the Commonwealth are carefully crafting workarounds of the Court’s decision to lessen its impact or avoid it entirely.  With regards to ARD cases, some counties have already committed to policies that would make it impossible for a first-time DUI offender to be eligible for ARD.  Other counties are forcing ARD applicants to admit guilt at the time of entry into the program for use in future proceedings and are also attempting to limit expungement of these offenses.

For cases involving sentencings in “second in ten” or “third in ten” DUI offenses post-Chichkin, some counties are abiding by the ruling.  Others are attempting to overcome Chichkin by attempting to introduce evidence of the earlier ARD DUI charges at trial on the subsequent DUI offense to trigger the sentencing enhancements.  Many believe a legislative fix is on the way.

The repercussion of Chichkin will be felt for some time.  If you are facing DUI charges, you need an experienced DUI attorney to guide you through the process.  Contact McCormick & Vilushis today for a free consultation.