A pre-trial diversion program is back on the table for first-time DUI offenders.

A May Superior Court decision has impacted how first offense DUIs are handled in Warren County.

It ties back into the ARD — accelerated rehabilitative disposition — program, which targets first-time offenders and offers a path that can end in the dismissal of charges and the expungement of one’s criminal — but not driving — history.

Prior to May, ARD would have been an option for many first-time DUI offenders.

At the time, District Attorney Rob Greene elected to not permit DUI offenders apply for ARD as a result of that case.

“Allowing multiple DUIs without enhanced penalties for subsequent offenses flies in the face of public safety,” he previously told the Times Observer

Here’s the gist of the Comm. v. Chichkin decision: A defendant had completed ARD for a first DUI but picked up a second a couple years later. For sentencing purposes, even though the defendant completed the ARD program, the second DUI was counted as a second DUI, which brought enhanced mandatory minimum penalties.

But there was no trial or plea on that first DUI so the defendant argued he was being sentenced to the increased penalty without the first DUI having been proved beyond a reasonable doubt.

The court ultimately sided with the defendant and remanded the case back for sentencing as a first-offense DUI.

A waiver through the Warren County District Attorney’s Office now brings that option back for defendants in Warren County.

The waiver requires a defendant to acknowledge that the DUI for which they are being admitted to ARD will count should they pick up another one.

The waiver also requires that defendants agree that the Commonwealth “not be required to prove beyond a reasonable doubt” that the defendant is guilty of the current offense for which ARD is being considered.

Second offense DUIs carry higher mandatory sentences.

Greene told the Times Observer that the General Assembly is ultimately going to have to address this issue legislatively.

Senate Bill 773 would do just that.

That legislation would require that prosecutors not seek ARD unless the following conditions are met: “The defendant admits that the Commonwealth’s evidence would prove the elements beyond a reasonable doubt…” and that “the defendant agrees that the defendant’s admission may be used as a prior conviction for the purpose of increasing the grading and penalty of any subsequence offense….”

It also requires that the defendant waive the right to challenge “the use of the accelerated rehabilitative disposition as a prior conviction….”

The bill without the ARD-specific language passed the Senate back in January. The bill with the language made it through the House Transportation Committee back in June and is awaiting action on the House floor.