Rep. Rob Kaufman, R-Franklin, is pictured during a House Judiciary Committee meeting in September.

Legislation is on its way to the state Senate to close a loophole in state law that allows those who complete a DUI diversion program to avoid heightened sentences for a subsequent DUI conviction.

The state House of Representatives has unanimously approved legislation authored by Rep. Rob Kauffman, R-Franklin, that would establish a new “DUI Following Diversion” offense for individuals who drive under the influence within 10 years of completing an Accelerated Rehabilitative Disposition (ARD) program for a DUI offense.

Kauffman said the legislation aims to address a flaw with the current ARD program. Specifically, in the case of the Commonwealth v. Shifflett, the Pennsylvania Supreme Court held it is unconstitutional to treat a defendant’s prior acceptance of ARD for a DUI as a “prior offense” for the purpose of imposing an enhanced sentence on a subsequent DUI conviction.

“House Bill 1615 would correct what is lacking in current law by mandating a first DUI Following Diversion offense is penalized as if it were a DUI Second Offense under the law and a subsequent DUI penalized as if it were a DUI Third Offense,” said Kauffman. “In addition, PennDOT would maintain records of ARD acceptance and completion for DUI cases for a period of 12 years, with automatic expungement after 12 years.”

In the Shifflett case, a man had completed ARD for a DUI back in 2012. Ten years later, he was charged with another DUI. Prosecutors wanted to treat the new case as his second offense, which carries tougher penalties. But he argued that ARD isn’t a conviction so it shouldn’t count as a “prior offense.”

The state Supreme Court agreed. They ruled that because someone who enters ARD never pleads guilty or has a trial, it doesn’t count the same as a conviction. That means ARD can’t be used to increase the penalties for a later DUI.

State Superior Court made a similar decision in 2020 that caused Warren County to reexamine the way it used ARD cases, with Rob Greene, county district attorney, saying at the time he wouldn’t use the ARD program until the loophole was changed. In that case, Comm. v. Chichkin, 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. The Shifflett case follows similar logic.

Kaufman’s legislation would also update current law in regard to homicide by vehicle. Specifically, an individual would be guilty of a first-degree felony if the driver commits the offense of DUI Homicide by Vehicle along with DUI Following Diversion. If convicted, the penalty would be a mandatory minimum five years in prison, with a consecutive five-year sentence for each victim whose death resulted.

“House Bill 1615 would meet the needs of prosecutors who are faced with prosecuting repeat offenders, as well as first-time offenders who are looking for an opportunity to better themselves and not have a DUI conviction follow them for the rest of their lives,” said Kauffman.