Pennsylvania DUI Program Participants Challenging Application of New DUI Law

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Recent changes in the laws surrounding Pennsylvania's Accelerated Rehabilitated Disposition (ARD) program have DUI defendants-and their attorneys-up in arms. At stake are the freedoms and futures of hundreds of DUI defendants who thought their records of DUI arrests had been expunged.

The ARD program is a pretrial diversion option offered to first-time DUI offenders who agree to follow a court-mandated probationary program in exchange for the suspension of their charges. Acceptance into the ARD program is left to the discretion of the District Attorney in the county where the arrest took place, as are the specific terms of the program. These terms can include things like alcohol or drug rehabilitation, community service, or restitution to victims, all conducted under the supervision of the courts, often with assistance from a DUI attorney. Similar programs exist in some other states, including Kansas, Massachusetts, and the District of Columbia.

The benefits of these pretrial diversion programs are that the defendant is not required to admit guilt, and penalties like license suspension are often mitigated. In Pennsylvania, defendants who successfully complete their ARD programs can also apply to have their records expunged of the DUI complaint. Provided these defendants are not arrested for DUI again for a specific period of time, the courts will look back and see that no previous crime exists. This means that, should a second arrest occur after this "look-back" period, the defendant will still be considered a first-time offender.

It is the look back period that is currently being debated in courts throughout the commonwealth. This is because in February of 2004, the Pennsylvania legislature lengthened this period from seven to ten years. Many argue that this change has violated the rights of defendants who were arrested for the second time more than seven years, but fewer than ten years, after completing the ARD program.

In some areas, the ARD agreements did not reference the statute; rather, defendants explicitly agreed to a seven year look back period. Some of these defendants have been sentenced as second-time offenders, exactly the thing they were guaranteed would not happen when they applied to and completed the terms of the ARD program.

Attorneys for these defendants claim that their due process rights are being violated and that applying the new law to their cases is unconstitutional. And many attorneys throughout the state have criticized the new law and the inappropriateness of applying it retroactively, essentially changing the terms of an agreement that has already been fulfilled. They also question the constitutionality of calling the subsequent arrest a "second offense" when the ARD agreement clearly states that acceptance into the program is not an admission of guilt.

Appellate courts have so far agreed, overturning one defendant's second-offense sentence on April 27, 2006. Judge H. William White said that "constitutional rights are violated because the commonwealth changed the terms surrounding the ARD agreement." It is now up to the state Superior Court to decide whether they agree with the county courts that "a defendant who accepts ARD falls into a category that is quite distinguishable from those who are convicted after a trial or a plea."


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