The state Supreme Court ruled May 30 in a split ruling that judges in the commonwealth are no longer able to consider completion of the ARD diversionary program as a first conviction for DUI – meaning lighter sentencing for those who complete the ARD program and later reoffend.

“We acknowledge that, in enacting Sections 3804 and 3806, the General Assembly has attempted to deter DUI recidivism by imposing greater punishment on individuals who, after being afforded an opportunity to reform, reoffend,” state Supreme Court Chief Justice Christopher Todd wrote in his decision in Commonwealth v. Schifflett. “While laudable, such a goal can only be carried out through constitutional means. In recognizing the prior conviction exception, the Supreme Court in Apprendi focused on the adequacy of the state procedures, not the policy basis for the state sentencing enhancement, emphasizing that the “strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.” The same is true here: the strength of the state’s interest in punishing recidivists, however weighty, has no bearing on the constitutional question before us. The General Assembly’s valid interest in deterring recidivist conduct must be furthered in a manner that protects the procedural due process and jury trial rights of those involved.”

Accelerated Rehabilitation Disposition is used regularly in Warren County for first-offense driving under the influence cases. Some district attorneys on the eastern end of the state are pausing their ARD programs in the wake of the decision, according to LancasterOnline, which reported on the case Friday. County district attorneys decide who is eligible for the ARD program, with final approval resting with county court judges.

The decision is prompting House Rep. Rob Kauffman, R-Chambersburg, and Rep. Tim Briggs, D-King of Prussia, to circulate a co-sponsorship memorandum for legislation they are drafting to comply with the court’s decision in part due to the response of prosecutors who say they will stop using the ARD program.

House Rep. Rob Kauffman, R-Chambersburg, is pictured speaking while leading a tour of the state House of Representatives in 2024.

“In light of the court’s decision, which makes it virtually impossible for prosecutors to rely on ARD to enhance penalties for repeat DUI offenses, many district attorneys across the Commonwealth will be left with little choice but to withhold ARD from first-time DUI offenders,” Briggs and Kauffman wrote in their memorandum. “A blanket prosecutorial refusal to offer ARD would effectively gut one of the most successful diversionary programs in this Commonwealth – unnecessarily driving more cases into the traditional court system, increasing costs, and burdening an already strained judicial system.”

Kauffman and Briggs propose establishing the Driving Under the Influence Treatment Program to impose the constitutional safeguards lacking in current statute and, like ARD, address an offender’s rehabilitative needs while balancing the concerns for public safety in recidivist DUI penalties. Upon an offender’s successful completion of the program, the court shall enter an order directing of the expungement of the DUI offense from the offender’s criminal record.

“Significantly, the courts can treat an offender’s participation in the program as a prior offense if the offender is subsequently charged with another DUI,” the lawmakers said.