The state’s attorney general is signing off on legislation that will close a court-created loophole in the state’s ARD program for DUI offenses.

Rep. Kathy Rapp, R-Warren, was a co-sponsor of House Bill 1615 along with a bipartisan group of House members who unanimously approved the legislation at the end of September. Senate approval was also unanimous earlier this week.The legislation authored by Rep. Rob Kauffman, R-Franklin, 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 isn’t completely over the finish line. It needs to be approved again by the House after amendments made by the Senate. But it has gotten a voice of support from Attorney General Dave Sunday.

“This bill remedies a state court’s ruling that essentially disregards a first DUI offense resulting in ARD when a second DUI conviction occurs,” Sunday said. “While I am an advocate of second chances when appropriate, I have found in my career that many DUI offenders are at high risk to re-offend, so precautions must be in place to ensure accountability if they commit subsequent offenses.”

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.

“Every time someone makes the intentional decision to get behind the wheel intoxicated, they endanger every person they encounter on the roadway,” Sunday said. “I have seen far too many tragedies caused by completely avoidable vehicle crashes rooted to DUI. I will continue to advocate for ARD and other worthy diversion programs as positive resolutions to criminal charges for certain offenders, but there is no such thing as a freebie when it comes to driving while intoxicated.”