The State of Pennsylvania has a ‘first offenders’ program titled ARD, which stands for Accelerated Rehabilitative Disposition. The goal of the program is to keep certain first time offenders, such as those charged with DUI, from entering the criminal justice system. When an offender enters the program, the state suspends the charges. There is no admission of guilt and should the offender successfully complete all conditions of the ARD program, the charges are dismissed and the original arrest record can be expunged.
The mandated prohibition period under the ARD program was previously seven years. If someone was charged with a DUI in Pennsylvania, entered the ARD program and managed to not be arrested again for DUI within seven years, their record would be clean.
Having a clean record has a huge impact on how a subsequent DUI arrest would be handled. Because the original charges are only suspended under ARD, a second arrest within seven years would re-enact the first charge leading to two strikes. After seven years in ARD though, another DUI arrest would only be a first strike.
Then the Pennsylvania legislature extended from seven years to ten years the period of time that prosecutors can look backward for previous offenses. Despite warnings from DUI defense attorneys of potential problems, the new law went into effect in February 2004.
As predicted, a number of defendants are now challenging the constitutionality of the new law.
The basis of the complaints pertains to the changed ‘look back’ period for prior arrests. One defendant, Dean Pleger, was arrested for DUI in 1994 and he entered the ARD program in 1996. He understood that if he were to be arrested for DUI within seven years, his first arrest would come back into consideration. He successfully completed the requirements of the ARD program in 2003 and the 1996 charge was expunged from his record.
That should have meant that any subsequent arrest for DUI would be treated as a first offense.
Then Pleger was arrested again for DUI in 2004. It was after the Pennsylvania laws had changed and prosecutors were allowed to look back ten years for previous offenses. Pleger’s second DUI occurred more than seven years but less than 10 years after his first arrest and he was sentenced as a second offender under the new law.
His DUI defense attorney claimed that the new law violated Pleger’s due process rights. The county court agreed and Pleger’s sentence was altered.
"(Pleger’s) constitutional rights are violated because the commonwealth changed the terms surrounding the ARD agreement," states the opinion of court that was signed by Judge H. William White. Pleger upheld his part of the agreement when he accepted ARD and relied on the commonwealth to fulfill its part, according to the court order.
The matter is now before the Pennsylvania Superior Court.
May 27, 2012
