A recent ruling in the Pennsylvania Supreme Court is changing the law relating to a sentence of Accelerated Rehabilitative Disposition — ARD.

McKean County District Attorney Stephanie Vettenburg-Shaffer explained, “ARD has been a program in Pennsylvania that allows an offender to be placed on probation for an offense and, if successful, the case would be expunged. ARD is a common resolution for first time DUI offenses when there is no property damage or injury.”

Before this change, that DUI would still count as a prior offense if the defendant were to commit another DUI.

“This is important because DUI sentences are based on the number of DUIs the offender has in the last 10 years, and a prior DUI where the offender received ARD would count as a prior offense,” she said.

In May, the Pennsylvania Supreme Court released its opinion in Commonwealth v. Shifflett, where the majority of the court held that a prior ARD cannot be considered as a prior when calculating whether a defendant is subject to enhanced penalties for a subsequent DUI, Shaffer explained.

“This decision has sent shockwaves across Pennsylvania courts. And county district attorneys are stuck in the crosshairs,” she said.

The Pennsylvania legislature has listed specific factors that disqualify an offender from the program. On top of that, each county’s district attorney primarily sets the ARD eligibility requirements for that county. The prosecutors look at factors geared at identifying individuals who are at a low risk of reoffending and who are amenable to treatment — all factors related to community safety, Shaffer explained. If the district attorney approves the offender for ARD, he or she then makes a motion to the court for that offender to be placed into the ARD program.

“The trickling fallout from the Supreme Court case continues,” Shaffer said. “Just this week, the National Traffic Law Center has taken the position that ARD for Commercial Driver’s License (CDL) holders is inappropriate because there is a specific provision in the law that prevents any resolution in a criminal case that would hide a DUI or other serious driving offense from appearing on the driving record of a CDL holder even if they were not driving a commercial vehicle at the time of the DUI.

“In short, because ARD no longer counts as a prior conviction, they have suggested that CDL holders cannot be placed into the ARD program because ARD conceals the DUI,” she said.

Now that ARD no longer counts as a prior offense, many district attorneys are no longer giving ARD to any DUI offender, Shaffer explained.

That is not the case in McKean County, where Shaffer is making some changes, including amending the application for the ARD program for offenders

“In McKean County, I plan to continue to use ARD for offenders who show a low risk of reoffending and who are amenable to treatment. But I will have to look more carefully at the overall history of the offender for any factor that would show a higher likelihood of future criminal behavior or other factor that could present a risk to the safety of the community,” the county’s top prosecutor said.

“The risk is too great now and that is why many of my colleagues will not use ARD in any case going forward,” she said. “Previously, even if we thought someone was not likely to reoffend but they committed another DUI, they would then receive a harsher sentence for the second DUI.”

That could be a significant increase in the penalty.

“This harsher sentence that was allowed could be the difference between a 6 month maximum and a 5 year maximum, no license suspension and 18 month license suspension, a county sentence versus state sentence, along with the amount of fines that can be imposed,” she explained.

A DUI charge could be from a lot of things, like an offender running a stop sign and an officer seeing it, or a worst-case scenario of a fatal crash.

“We can never truly predict when the next DUI fatality will occur so we have to make sure that each DUI offender is sentenced in such a way to hold them accountable while providing tools to curb re-offending — mandatory drug and alcohol counselling, payment of fines, etc. — and the risk of a much more serious sentence if they commit another DUI was a great deterrence,” Shaffer said.

“The Supreme Court opinion has taken that last option — risk of a more serious sentence on another DUI — away from us.

“I know some legislators are working on an amendment to the current DUI statute that would allow us to continue to use ARD for first time offenders while being able to seek an enhanced penalty if they receive another DUI,” Shaffer explained. “I am hopeful our legislators recognize the issue and work toward an amendment. And I call on our local legislators to join our fight.”