Pennsylvania DUI Attorney
Accelerated Rehabilitative Disposition - ARD
Section 3807(d) of the Vehicle Code sets forth the possible suspensions associated with ARD:
(d) Mandatory suspension of operating
privileges.-As a condition of participation in an Accelerated
Rehabilitative Disposition program, the court shall order the
defendant's license suspended as follows:
(1) There shall be no license
suspension if the defendant's blood alcohol concentration at the time
of testing was less than 0.10%.
(2) For 30 days if the defendant's blood alcohol concentration at the time of testing was at least 0.10% but less than 0.16%.
(3) For 60 days if:
(i) the defendant's blood alcohol concentration at the time of testing was 0.16% or higher;
(ii) the defendant's blood alcohol concentration is not known;
(iii) an accident which resulted in
bodily injury or in damage to a vehicle or other property occurred in
connection with the events surrounding the current offense; or
(iv) the defendant was charged pursuant to section 3802(d).
(4) For 90 days if the defendant was a minor at the time of the offense.
75 Pa.C.S. 3807(d).
Absent an abuse of that discretion involving some criteria wholly, patently and without doubt unrelated to the protection of society and/or likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the district attorney is free to make his decision based upon what is most beneficial to society and the offender. Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1995).
"The term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753 (2000).
"Paramount to the proper implementation of any ARD program is to assure that inclusion/exclusion promotes one or both of the objectives sought to be achieved by the program's existence: protection of the public and/or the rehabilitation of the defendant." Commonwealth v. Darkow, 426 Pa.Super. 219, 626 A.2d 1173, 1176 (1993).
While a person undergoes ARD, the criminal proceedings are held in abeyance pending successful completion of the program or revocation for violation of the conditions. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99, 101 (1981).
If ARD is not completed successfully, the defendant may be prosecuted upon revocation of his participation in the program. Commonwealth v. Lutz, 508 Pa. 297, 303, 495 A.2d 928, 931 (1985).
Acceptance of ARD, or other forms of preliminary dispositions, constitutes the equivalent of a conviction for sentencing purposes. Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987) (en banc). Becker further held that "a defendant who is convicted of drunk driving after having accepted ARD to avoid prosecution for an earlier drunk driving charge must be sentenced as a repeat offender-whether or not he has ever completed the ARD program." Id. at 893.
Commonwealth v. Pleger, 934 A.2d 715 (Pa.Super.2007), concluded that "[S]ections 3806(a) and (b) indicate, similar to the previous statutory framework, that ARD is to be considered a prior offense for purposes of determining penalties for repeat DUI infractions." Id. at 717.
Under Section 3806, ARD must be considered a conviction for sentencing purposes. Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239, 1241 (1986) (finding that trial court erred for failing to recognize ARD as a prior offense for sentencing purposes).
In Commonwealth v. Zampier, 952 A.2d 1179 (Pa.Super.2008), the appellant accepted ARD on April 18, 1996, after he was charged with DUI. Eight months later, his ARD was revoked. He pleaded guilty and was sentenced on April 14, 1997. On October 28, 2006, the appellant was charged with DUI and entered a plea agreement, which was contingent upon his having no previous DUI convictions within the ten-year look-back period. The Zampier Court held that the April 1997 conviction was within the ten-year look-back period.
The relevant look-back period applied to the date Appellant accepted ARD, and not the date he was sentenced after revocation of ARD. Commonwealth v. Love, 957 A.2d 765, 2008 PA Super 218 (Pa.Super., 2008).
Ryan v. Department of Transportation, 946 A.2d 191 (Pa.Cmwlth.2008). In Ryan, the licensee was charged with underage drinking, and thereafter accepted A.R.D. Shortly thereafter, the charge against the licensee was withdrawn by the prosecutor and dismissed with prejudice, and the licensee requested and was granted permission to withdraw from the A.R.D. program after having completed twenty-nine days therein. One month after the licensee had his underlying charge dismissed and had withdrawn from A.R.D., DOT suspended his operating privilege based on the licensee's prior acceptance of A.R.D., without regard to the subsequent history. Holding that, at the time that DOT imposed the suspension the underlying violation had been eliminated by the prosecutor's previous withdrawal of charges, we affirmed the trial court's sustaining of the licensee's appeal noting that "[a] suspension can only flow from a violation," and since the prosecutor subsequently withdrew the underlying charges prior to DOT's suspension imposition, "there was no violation, and therefore no basis for the suspension of [licensee's] driving privileges." Ryan, 946 A.2d at 194.
Belville received ARD for a DUI in 1987, and in April of 1996, she was again arrested for DUI. She applied for and received an expungement of the 1987 ARD disposition in September of 1996, then applied for ARD on the latter charge, falsely claiming no previous charges had been expunged. Due to Belville's previous enrollment in ARD and false answer on the ARD application, she was properly was denied admission to ARD. Commonwealth v. Belville, 711 A.2d 510 (Pa.Super.1998).
Fleming had a prior conviction in Maryland, but it was expunged. Because appellee truthfully answered his ARD application to the best of his knowledge, and the Maryland expungement statute clearly intends for expunged records to be unobtainable except under special circumstances, appellee's expunged record of conviction for felony drug possession is a prohibited consideration for purposes of an ARD application. Accordingly, the trial court properly compelled the district attorney to accept appellee into ARD. Commonwealth. v. Fleming, 955 A.2d 450, 2008 PA Super 191 (Pa.Super., 2008).