The recent legal turmoil around the legal effect of a prior driving-under-the-influence (DUI) charge for which a driver completed the accelerated rehabilitative disposition (ARD) program continues. In this latest turn, the prosecutors’ attempted workaround catches the criticism of the Superior Court in Commonwealth v. Richards, 1673 EDA 2020 (memorandum decision).
As an initial note, the Richards case is an unpublished memorandum. An unpublished memorandum is not binding authority. It is, however, persuasive authority. See Superior Court I.O.P. 65.37(b) (“[n]on-precedential decisions filed after May 1, 2019, may be cited for their persuasive value”).
An unpublished memorandum, therefore, can act as a signal of the Superior Court’s view on a particular issue. It also may sway the trial court, although it does not have to follow an unpublished decision.
DUI in Pennsylvania
In Pennsylvania, driving under the influence is punished with a sliding scale. The mandatory and discretionary punishments increase significantly from first to second, third, and subsequent charges. See 75 Pa. C.S. § 3804.
The penalty also changes based on the genre of DUI, the amount of alcohol in the driver’s blood, the drugs in the driver’s blood, and the circumstances of the offense. See 75 Pa. C.S. § 3803.
DUI Law in Pennsylvania
Over the past several years, the Pennsylvania legislature has been constantly revising the DUI laws. It revised (read as, “increased”) the grading and penalties applied to DUIs.
But, most significantly for the purpose of this article, it altered the way prior offenses are counted. Before 2016, the courts calculated the number of prior convictions by counting the number of convictions within 10 years of the present offense’s sentencing. 75 Pa. C.S. § 3806(b) (2004).
In 2016, the legislature “fixed” the supposed problem this method created—under that rule, drivers who committed a second DUI before their first DUI was resolved would be punished as a first-time offender, albeit for the second time. The legislature’s “fix” amended the statute to count the event that led to arrest, not the convictions. 75 Pa. C.S. § 3806(b) (2016).
The legislature’s “fix” presented a new complication—drivers who had completed the ARD (Accelerated Rehabilitative Disposition) program, but whose record had not been expunged. The result was that prosecutors would count the underlying event (the arrest), even though no conviction resulted from it.
The text of 75 Pa. C.S. § 3806(a) lent credence to their interpretation. 75 Pa. C.S. § 3806(a) (2016) (including “acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition” in definition of “prior offense”).
Proof of Prior DUI Beyond a Reasonable Doubt
The Pennsylvania Superior Court, however, held that interpretation unconstitutional. It explained it violated due process for the Commonwealth to count the event that resulted in ARD. Commonwealth v. Chichkin, 232 A.3d 959, 967 (Pa. Super. 2020). At the end of its decision, the Superior court stated that the Commonwealth would have to prove the prior DUI beyond a reasonable doubt to impose a second-offense penalty. Id.
Prosecutors quickly added requirements that drivers admit to the underlying events as part of their ARD acceptance procedures. Several counties also required defendants to agree that, in exchange for ARD, they agreed that the charging documents were proof of the prior event beyond a reasonable doubt.
The Pennsylvania Superior Court recently expressed its displeasure with that practice. It explained that the language in the Chichkin decision that the prosecutors were relying on was not part of its holding and not authoritative. Richards, 1673 EDA 2020 at p. 9. It wrote that Chichkin did not include a directive that “trial courts  engage in trial-within-a-trial factfinding to impose the mandatory minimum sentence.” Id. at p. 10.
Second DUI Offense in PA
It further noted that even the requirement that a driver admits to the prior DUI for admission into ARD did not remedy the law’s unconstitutionality. Id. at p.p. 10-11. At the moment, therefore, a second arrest for DUI should not be punished as a second offense if the driver completed ARD for his or her first DUI.
As demonstrated by this discussion, this is an area where the law is shifting like the beach in the tide. Between the appellate courts’ decisions and the responsive legislative “fixes” and prosecutors’ end-runs, there is even more to account for while deciding the appropriate resolution of a DUI case.
You need experienced and knowledgeable counsel to inform your decisions. Call Pyfer Reese Straub Gray & Farhat PC and ask to meet with one of these Attorneys: Chris Patterson or Dan Bardo or Anthony diDonato.