Understanding DUIs & The ARD Program in Pennsylvania

Welcome back everybody. This week we are going to talk about a topic that is a really really helpful tool to have in the law. This topic is ARD.

A lot of cases can be fixed using this tool, which in a way is kind of a defense attorney’s dream, but it’s also really utilized to help the person. So, understanding the dynamic between what the purpose of ARD is and what it actually does to benefit you and that dichotomy is a really important tool to have to actually ultimately get accepted into this program. This ARD program. It’s an acronym.

ARD stands for accelerated rehabilitative disposition. Those are three words and each one of them are very important to the actual program.

Accelerated. Well, that means moving along quicker. Now, what you’re going to find is that it actually doesn’t feel like it moves very quickly, but it does help get to the end point in a better way quicker. So, it is actually quicker than the normal process.

Rehabilitative. This is the big one with why this program is really important and what it offers. It offers the ability to get better. It offers the ability to fix not only legally but individually and personally.

And then the last word is disposition. That means finalization of your case. It’s the final outcome that gives you an end point to your case that ultimately results really in the biggest part of it, which is getting your charges ultimately dismissed and expunged from your criminal record. That’s the big cookie at the end of it.

Now, mainly ARD is for first-time offenders. That isn’t always true. We have had a lot of success getting even second and sometimes third time offenders with crimes into the ARD program. But once you get to multiple crimes, it does limit what you can do and how you can get in. It actually makes it kind of exponentially more challenging to get accepted into this program.

The program, like I said, it’s a great clean sweep to the outcome of your case. It protects our clients. It offers really good outcomes. However, one of the very important things to remember with ARD is it is 100% discretionary with the elected district attorney in the county within which you’re applying for the program. What that means is that the DA has full authority to decide whether or not to admit you into this program.

And each county offers kind of different ways that they will allow that. Different DAs will do different limitations on the program. We’re going to talk a little bit about that and unpack that in each county, but we’re mainly going to focus on York County today, although as defense attorneys, we practice in all of the surrounding counties to York. That’s Adams, Dauphin, Cumberland, Franklin, Lancaster counties. And all of them have the ARD program, too.

It’s a state program, but each individual DA in each individual county promulgates the rules surrounding the program in that county. So there’s kind of two ARD categories. DUIs, which is a really, really big one, and there’s been a ton of changes regarding ARD with DUIs recently. And then there’s pretty much every other crime that you would potentially apply for ARD. Not every crime is eligible to apply for ARD, but many of them are. And we’re going to also unpack the differences between what’s eligible and what’s not.

I think one thing to really keep in mind is that even though the program is called accelerated rehabilitative disposition, the wheels of justice are slow, unfortunately. And I think sometimes people come in thinking that their case is going to be done in a month or two and all we have to do is kind of wave a wand and things get fixed. And that really isn’t what happens.

The path to get to ARD — you have to almost shine a light on exactly what needs to be done in order to get to that path most effectively and run that straight line. Because there’s a lot of pitfalls that we’ve found where people think they’re going to be eligible for ARD or want to be eligible for ARD, but unfortunately don’t correctly engage in the process and find themselves diverting off the path. And that’s what we do as attorneys. We keep you on the path. We make sure we’re doing the right stuff so we can get you through this sometimes slower process quicker, more effectively, and slow and steady wins the race.

So, I’m going to kick it first to Justin here today. Justin, tell us a little bit about what doesn’t qualify for ARD. There are so many pitfalls. People think, I’m ARD eligible. What doesn’t qualify for ARD?

Yes. So, there are quite a few disqualifiers in the sense of what does not qualify for ARD. Cases that involve domestic disputes that result in charges like simple assault or misdemeanor harassment, firearm cases, cases with a deadly weapon enhancement. So that could be any number of violent crimes and if you have a deadly weapon, which can be a number of things and things that you may not even think of as weapons.

And Justin, deadly weapon enhancements — there’s actually two types. You have deadly weapon possessed, meaning you might have not actually used it. You just had it during the commission of a crime. And then deadly weapon used. And both of these could potentially disqualify you from ARD.

Correct. Yes. Either one, whether it’s possessed or used, definitely can disqualify you from ARD. Sex crimes, felony drug offenses with the exception of marijuana if it is 120 grams or less, which is essentially a quarter pound of marijuana. Endangering welfare of children, care-dependent persons, animals, child or elderly abuse or neglect, other crimes of violence, and really any crime that involves a serious bodily injury.

Those are a pretty long list, you know, and that’s why I was saying earlier — I think a lot of times people kind of come in thinking, “Oh, I’ve heard of somebody doing ARD and I’ve heard it’s a really good program. I can just do that, right? Because I haven’t been in trouble before.” Or maybe I have, but it was minor in the past. But the reality is a lot of this stuff right out of the gate, you’re not eligible. You can’t even really apply, or you can, but you’re going to get immediately rejected.

And I think one of the big ones you mentioned was that marijuana charge. So generally possession of marijuana, just personal possession, is eligible to apply for ARD, but there’s actually better outcomes for simple possession of a small amount of marijuana or paraphernalia better than ARD. Things like Section 17 and maybe getting your charges reduced to summaries and things like that.

But what you were mentioning was a felony drug charge, which is possession with intent to deliver, delivery of marijuana, growing, or manufacturing. So it’s important to understand that because in society we think, you know, marijuana really isn’t that big of a deal. Well, we don’t just play in society. We play in the sandbox of the law in Pennsylvania. And it is important to know where you’re at in that sandbox because the only felony drug charge that’s even eligible to apply for ARD is if it’s marijuana and it’s the only substance.

So your other substances — cocaine, fentanyl, heroin, things like that — non-starter. But marijuana is, but only if you’re under that one threshold. And that threshold is 120 grams, which essentially equates to a quarter pound, four ounces. Essentially an ounce is around 30 grams. And that’s actually what qualifies for a small amount of marijuana — 30 grams or less.

If you’re over 30 grams, they may still give you a small amount charge. However, they could at that point charge you with intentional possession of a controlled substance. And then again, depending on how much you have and if there are other factors such as scales, large amounts of cash, etc., that’s where you get to the delivery portion. Or they’re going to claim that you had the intent to deliver based upon those other factors.

Okay, great. Well, that’s very very helpful. Let’s pivot to DUI specifically. Because there are some things with just the crime of DUI that are non-starters to apply for ARD. So what would be a DUI-specific non-starter for ARD?

Yes. So essentially anything other than a first offense DUI within 10 years. So if you’ve had a prior offense within 10 years, you’re not going to qualify. If you have two pending DUIs at the same time — say you get a DUI, you apply for ARD and then pick up another while that’s pending — that’s going to remove your eligibility. Or you could be charged with a DUI, maybe you haven’t applied to ARD yet, and you pick up another DUI. That’s going to remove your eligibility.

And let me jump in there. The thing with DUIs — they aggregate. DUI charges in the law in Pennsylvania aggregate. What that means is if you get a first and then you get a second, not only is the penalty worse significantly for the potential for jail time — in fact there are mandatories for jail time that we’re going to unpack in a little bit — but you also get more license suspensions, heavier things like that.

So what Justin was just saying is if you’re literally applying for ARD on a first offense DUI and you’re hoping to do that, I tell people in my very first meetings — you’ve got to understand that you need to be very good while this is going on. This is a lengthy process. You can’t be committing other crimes while this is going on because if you are, they’re going to just kick you right out of even consideration for the program. You might not even be in it yet.

And not only that, but the aggregation I just mentioned — you’re now charged with a second DUI. Because it doesn’t go back; it goes from that first charging date to now you have a second one. There are no two first offenses anymore. That was years ago. That’s a myth. It’s been done away with. You get a second while a first one is pending, you’re being charged with a second offense DUI. So that makes your mess totally bigger and takes you out of consideration for ARD.

So going back to you Justin — you were telling us about DUIs and what things don’t work. Go back to that please.

Yeah. So if you get a DUI and you have a companion charge that is driving under suspension DUI-related, that will take you out of consideration. And just to jump in — what does companion charge mean?

So essentially a companion charge is just another charge that’s filed with the DUI. Another count on the criminal information or affidavit. Under the vehicle code it’s called 1543(b) — that’s driving under suspension DUI-related. So that means your driving license was suspended because of a prior DUI.

And we see people fall into that trap all the time where their first DUI that resulted in that suspension could be 10, 15 years old and they’ve just never restored their license, and they go pick up another DUI. And what you’re saying there is important — with driving under suspension, if you serve the one-year suspension that you got for a DUI 10 or 15 years ago, you did your whole suspension, but you never restored your license. Maybe you didn’t pay the restoration fee and didn’t get your actual license back. Every time you’re caught driving until you restore your license is driving under suspension DUI-related, which is a significantly heavier-handed charge when it comes to mandatory jail time and eligibility for ARD.

So you could have had that DUI 10, 15 years ago and you’d be eligible for ARD otherwise at this point, but now you’ve got that companion charge just because you never restored your license. And it’s even worse than that because driving under suspension DUI-related while DUI is actually a major offense. It is treated similarly to DUI. Your second offense of one of those is automatically a misdemeanor.

There are really three categories. You’ve got regular driving under suspension. You’ve got driving under suspension DUI-related, meaning you had a prior DUI charge but you’re maybe not DUI at the time. And then there’s driving under suspension DUI-related to the prior DUI suspension while DUI at the time. That’s the more significant one and that’s the one that disqualifies you for ARD.

Yes. And like Tim said, the first one’s going to be a summary, second one’s a misdemeanor. The third one is a misdemeanor one, and the penalty is a mandatory two years — two years in prison.

And again, if you have a driving under suspension DUI-related charge on your current DUI, that’s a problem already because you’re going to be DUI at the time. So you already have this other enormous problem — mandatory jail time — and that’s really why you get disqualified from ARD here.

So again, for all of you — the takeaway here is if you get suspended for any reason, please restore your license as soon as you are able to do so. Do not let it lapse. Do not forget to do it. Sometimes it’s as simple as paying a little restoration fee to PennDOT for like $100 and you’re eligible to get it back. Do it. Follow through. Get control of your life and get that license back so you don’t find yourself in this scenario.

This day and age, you’ve got to drive. Especially where we live and practice here in York County — if you aren’t on the road driving, good luck finding a job. Good luck getting your family and your kids around. Good luck living. I mean, there are like three main roads that go pretty much everywhere in York County, and if you’re not taking one of those roads your drive is 40 minutes to go anywhere. We have a little bus system here but it’s not really that great because we’re kind of a rural county in a lot of aspects. You need your license.

And certain ebikes you can’t ride without a license because they have to be registered. And there are really strict rules about that because you can actually get a DUI on an ebike depending on the type. Well, and just a regular bike too. I have a buddy that got two DUIs on a bicycle. A regular bicycle.

Another weird question — you can’t get a DUI on a horse. It’s not a motorized vehicle. We’ve got some farmers here in York County, some Mennonites and Amish in the southern part of the county that do a lot of horse things. And as far as I understand, and I believe I’m correct in this, you cannot get a DUI riding on a horse. I’ve never seen it come up at any point. I’ve seen the bike thing come up, but never the horse.

I knew a guy in the military who was out on the ocean in a boat and the Coast Guard pulled him in and he got a DUI for boating — which is obviously a thing. And we have the Susquehanna River. I actually had a lady that got one in a kayak up on the Juniata River.

Boating under the influence is actually a separate crime. You’re not charged with DUI, you’re charged with BUI. And it actually counts — if you go out and get a BUI and then within 10 years you get a DUI, it’ll count as a second offense. They get aggregated. So that’s something we actually see kind of regularly here in York and Lancaster County because the Susquehanna River runs right between us, and people are pulling into the boat ramps. The cops actually sit there sometimes and check you in and out, and the Game Commission runs boats up and down the Susquehanna.

Anyway, let’s go back to where we were. Justin, you had a few more things about DUIs and what could disqualify you from ARD.

Yeah, just a few more. So if you are DUI and get into an accident where someone other than yourself is injured — I believe if you’re the driver and you’re the only person injured that does not disqualify you — but if you hit someone and someone is injured or dies, that will disqualify you. If you have a passenger under 14 years of age in your vehicle at the time. If you have any opiates in your blood, whether they’re prescription or not. And if you are charged with DUI while operating a commercial vehicle or a school vehicle like a school bus.

I’ve only seen that one time in almost two decades of doing this. That’s the 382(f) charge under the subsection. It’s pretty rare. But that one would definitely not qualify for ARD, and there’s obviously a lot of extra harm to society to consider there.

Regarding the opiates — prescription opiates still will disqualify you from ARD. If you have a prescription opiate in your system, DAs currently are not giving you ARD for that because opiates are viewed as a whole different ballgame right now. And even if they’re prescribed — as we’ve seen in the news over the last few years — how addictive that substance is. A lot of times people who are prescribed opiates are on them for many many years. Of course it would also cover things like heroin and fentanyl that are non-prescribed.

And the passenger under 14 years old — that one we see a very good amount. You’ve got your kid in the car with you. I usually see this when mom or dad is driving home from a summer barbecue. We’re entering into summer here so this is going to come up a lot. And even if you’re not charged with a separate charge of endangering the welfare of children — which a lot of times you will be — even if you’re just charged with DUI, the mere factual circumstance of having a child under 14 years of age in the vehicle will keep you out of the ARD program statutorily. That’s not even discretionary. It’s written into the law.

So keep that in mind, moms and dads. A lot of these people are great people, great lives, wonderful families, and they just take that small risk coming home from a barbecue in the summer with their kids in the car.

Alright Tim, let’s go to you. There are some technical disqualifications that can happen with ARD — little things like you didn’t do it right. Can you tell us about those?

Yeah, some of these are unique to York County, Pennsylvania. Some are pretty common for other counties as well, so there’s overlap in other places.

Not getting fingerprinted in a timely fashion is a big one. That one in my experience is primarily a York County disqualifier. Everybody knows that when you get charged you’re booked, but what people don’t realize is that you’re actually statutorily required to be fingerprinted on misdemeanors and felonies. And there are certain summaries too.

A lot of people say, “Well, I was fingerprinted five years ago when I did my child line clearances,” or “I got charged with a crime down in Maryland and I got fingerprinted there. So why do I have to get fingerprinted again?” Well, the easy answer is because the General Assembly says so. But the more complex answer is because criminal justice information is important to the government. It has an interest in maintaining accurate records. The state police maintain a repository of criminal justice information.

What this boils down to is maintaining records. Because when you get charged with crimes and then get charged with a future crime, they’re going to look back at the other time you got fingerprinted anywhere in the country and be able to pull that. Those fingerprints are attached to that particular offense, and those entries stitched together form what we call the rap sheet. The offense tracking number, the live scan — your biometric data is tied to that information and forms an entry on your rap sheet.

So you’ll see cases where somebody comes in and gives a fake name. Well, that fake name is going to show up as an alias, but that entry is going to be associated with their biometric data — the data they can’t change, which is their fingerprints. So really it comes down to tracking. That’s how they find out what you had in your past anywhere in the country.

So again, getting fingerprinted in a timely fashion — you’re actually court ordered to do that, and if you don’t do it you’re technically in violation of your bail. Some other counties are pretty flexible on that, as long as you do it before the conclusion of the case. But here in York County, if you don’t get fingerprinted quickly enough, you can be denied ARD.

Another big one in York County is timeliness of the application itself. The county attaches that deadline to the omnibus pre-trial deadline — which just means the pre-trial deadline. You have 30 days after formal arraignment to file any pre-trial motions. You’re supposed to file everything all at once, and one of the things that York County wraps up in that rule is the ARD application. As far as I’m aware, the rules of criminal procedure don’t require that, but that is the practice in York County. It’s a 30-day deadline. And if you miss that deadline, it can potentially disqualify you.

And this also goes into how you build yourself up for your application. Because just slapping down an application with your name, date of birth, and social security number is not actually going to get you into ARD. That’s bare bones. What you actually have to do now with a lot of these ARD applications, especially with DUIs, is build it up before you submit. The application has to be powerful. It’s got to be strong. It’s got to be chocked full of reasons why you should get into ARD.

And that gets into the heightened scrutiny that we’re going to get into here in a moment. The new changes that have caused ARD to become a lot more challenging to get into than it ever was before. I can’t tell you how many times I’ve had people come in and say, “Oh yeah, I have a friend who got ARD and it was no big deal. They didn’t really have to do much.” And then I say, “Well, when was that?” It was last year. Well, the changes happened just a few months ago. The ARD world now is enormously different.

And this is why we’ve said before — if you get a DUI or any crime, call us as soon as you can, even before you’re charged sometimes. Use that time. Hit the ground running so that when your charges come, we’ve already been working. Because that time is our ammunition.

I tell people this all the time — the one word I keep coming back to with ARD is timing. Timing, timing, timing. If you can be early to the punch, it matters more. They look at when that crime happened, and they look at when you started doing what you needed to be doing. And that can sometimes save the day when it comes to ARD.

And some of the case law that’s come out recently for ARDs is favorable to the defense. But some of that case law has had an unintended consequence because they handed such a total victory to one side in some of these cases that now there is an incentive for DAs and prosecutors to be very guarded about who actually gets ARD. That’s been the unintended product.

Let’s be clear about this again — the ARD program and who gets in is controlled by the district attorney’s office. They have the sole discretion to decide whether or not you get in. So when we get a great win on the defense side with some case law, you know what the prosecution did? They clamped down on that ARD program because they don’t want to have egg on their face. And there are some counties that I believe are still not doing ARD for DUI. There was actually a period of time where they killed the program entirely. It was shut down. Frozen. Closed. That may have changed with the new statute that came out just a few months ago, and thank goodness it did because it opened things back up for the right cases to get into ARD.

Tim, was there anything else from a technical standpoint you wanted to add?

Nothing really major. You just have to be aware that there are some technical things that will preclude you, and that does vary county to county. Getting new charges is obviously a big one.

I will say too — in other counties you may be required to give a description of the incident on the application. Something to bear in mind is that is not the time to equivocate and be weaselly about what happened. A lot of times those applications have a disclaimer on them that says the information cannot be used against you. It’s essentially like a plea negotiation. So if you go into that application and you minimize, start denying things, or don’t take accountability, that can be grounds for them to deny you. They want you to take some accountability when you go in for ARD.

I just had a guy where I said, “You’ve got to come in and redo this application. We’ve got to talk through how you write it because they’re going to read that.” And we talked a lot about that accountability piece in our bonus episode last week on the Rule of Threes.

They are going to look at whether or not you are owning what you did and taking the steps to fix it. It’s important to understand the lane you’re in, because there are definitely cases out there where you don’t want to take any accountability because you’re fighting everything tooth and nail. But we’re not talking about those today. We’re talking about: I want to get into this ARD program. I want to use this to fix it. And to do that, you need to be able to show some accountability.

And the way you word it matters. That’s what they’re going to read. Something you might think sounds good is actually going to get you not accepted into ARD. And in some counties, if you’re denied after a first application, they’ll let you reapply but they’ll make you pay all the fees upfront. So getting that application denied once can actually put you at a financial disadvantage too.

Alright. Tim, I want to kind of banter this back and forth because this is a big one. The heightened scrutiny standard with DUI cases in York County. It is much more challenging to get into ARD now with a DUI case. And the new standard for a lot of DUIs is heightened scrutiny. Pretty much it’s what it sounds like — they are going to scrutinize your ARD application a lot more heavily than they would have just a few months ago before some of these rulings came out in court. Tim, tell me a little bit about heightened scrutiny and what it means.

Yes. So heightened scrutiny means you have to submit documentation along with the bare-bones application in order to convince the district attorney or whoever is reviewing that application that you are a prime candidate for ARD.

The reason for this — and I think York County articulated it about as well as you could articulate reasons for doing something like this — is that they examined historical data for their ARD program over a pretty long period of time. They looked at recidivism with the purpose of determining whether certain kinds of DUIs posed a greater risk to society of reoffense. And based on their data, they did determine there is a link between some of these types of DUIs and recidivism. So in order for you to get the benefit of ARD, you have to essentially convince the DA and give them a warm and fuzzy feeling that you are not at high risk of reoffending.

And there are specific things that make you heightened scrutiny. Primarily the highest level of impairment for alcohol — .16 or higher. And we understand that if you’re not fall-down drunk and you’re at a .37, you have a drinking problem. You don’t get to that blood alcohol level and function enough to even try to operate a car unless you are a seasoned drinker. So if you’re above a .16, you fall into this category of heightened scrutiny right off the bat.

I will tell you, doing a lot of DUI work — 90% of the DUIs I see, maybe a little less, fall under the heightened scrutiny .16 or higher BAC. And that’s just because it doesn’t take a lot to get there. We talked about that in our last episode.

Some of the other things that will put you squarely into heightened scrutiny: any drug, prescription medications included, marijuana included. If you refuse the blood test, that’s going to put you in heightened scrutiny regardless of whether alcohol or drugs was suspected — if you refused and didn’t give blood, boom, heightened scrutiny. Any accident that happens, single vehicle or otherwise. Any prior lifetime DUI outside of 10 years — so this might technically be your first offense within 10 years, but any other DUI in your lifetime puts you in heightened scrutiny. And also if you have a CDL license, even if you weren’t driving your truck at the time.

So the single most important factor here — timing. If you’re in heightened scrutiny, which a lot of people who come into our office are, you have to submit all of these reasons for the DA’s office to feel very comfortable putting you into ARD. Here’s how I say it to a lot of my clients: you need to put before the DA a real big fluffy pillow that he needs to feel comfortable laying his head on to get you into ARD. If that pillow’s flat, if you have not engaged early, if you haven’t chocked it full of all the good stuff you need to do, you’re not getting ARD if you’re heightened scrutiny. You’re just not, the way it is now.

We actually put out a road map to a lot of our clients. We give it to them in writing: here’s what you need to do, these are the steps you need to take, here’s who to contact, here’s how to do it. That way it makes it easy. It tamps down a lot of the unknown and the anxiety that a lot of people have with this. It just makes the client a lot more effective in what they’re doing and gives us the right ammunition to really be effective for them.

Alright Justin, I’m going to kick it to you. Tell me about what happens if you get denied ARD. What can you do then?

Yeah. So you can file a reconsideration. You can be denied from ARD for a number of reasons. We talked about some of the disqualifiers both technical and for certain offenses. If you are denied, file a reconsideration, but you have to provide additional information to support it.

A reconsideration is not just “I don’t like that you denied me, review me again.” If you’re going to file a reconsideration, you’ve got to have a reason. You’ve got to have more information. You’ve already been denied — you’ve got to push them over. Why should they give it to you now? Give them a reason.

So what could be some of those reasons? Maybe you solved something, maybe there was a problem before that you fixed. Some of the most common ones — people had traffic warrants, failures to respond to traffic citations, maybe some other smaller charges or even serious charges either here in your county or in another county. If you resolve those favorably and maybe come out with a summary offense rather than a misdemeanor, or it gets dismissed altogether, at that point you’ve fixed the reason they denied you for.

And in the case of a traffic warrant, it could literally be that you didn’t respond to your speeding ticket. You never pled guilty or not guilty. Maybe you were convicted and didn’t finish paying your fine and now have a warrant. It could literally be as simple as paying that off and then reapplying on a reconsideration, because they can’t put you in ARD if you have active warrants. We talk directly with the DA’s office about this a lot when these things come up. We have some inroads there. We find out what the problem is, fix it, and then reapply.

Alright. Great. I’m accepted into ARD. That’s where we want to be. We’ve done all the work, put a lot of time and effort into it, the person gets accepted. What is this program in its truest sense? What is required of the client? What’s it going to look like for them?

Yeah. It does vary county to county. Normally you’re looking at about 12 months of being on ARD supervision. Here specifically in York County, the DA’s office is the one that supervises you. It’s not probation like in some other counties.

And that’s a good point — people sometimes think when they’re on ARD they’re on probation and they’re actually not. Here in York County, the DA’s office actually manages that. They keep an eye on what you’re doing.

I like to think of ARD as kind of a checklist of things you’ve got to do. Once you check that checklist off, you’re done. And keep in mind — the way we set up our clients for ARD, you’ve done most of that checklist before you ever got into the program. That’s by design. It’s going to help you get in and it’s going to make it a heck of a lot easier to complete it successfully.

So for DUI ARDs specifically: you have to do your CRN evaluation, your drug and alcohol evaluation, and if treatment is recommended, follow through and complete that successfully. You’ll have to do the DUI education classes, as well as the Mothers Against Drunk Driving victim impact panel. That’s specifically required for ARD here in York County. And we’re having our clients do all of this before you ever walk through that ARD door. That’s how we get them in.

So what are some of the things that maybe haven’t been done yet when you walk in? Things like community service and costs. You’re going to have to pay off all your costs. One of the perks of ARD is that there’s usually no fine assessed — it’s court costs. There usually is some sort of application fee that varies by county. Community service has to be done through a nonprofit, and the amount varies — usually you’re looking at between 20 to 30 hours.

Obviously the biggest one is staying out of trouble — no new criminal charges. You’ll also have to serve a license suspension depending on the tier. If you’re tier one, there’s no license suspension. If you’re middle tier or high tier, it’s 30 days. The highest tier for alcohol or drugs is 60 days. And if you’re a minor, or I think if there’s an accident, it’s 90 days.

So ARD greatly reduces a lot of the impacts like your suspension. If you get convicted of a DUI in Pennsylvania in any county, there is a statutory license suspension. This is not something the DA’s office is negotiating with you about, and it’s not something the judge adjusts based on who your attorney is. It’s statutory. The only way to actually have a direct effect on that is to do something like ARD, which gives you a statutory reduction to your license suspension.

For most people, the license suspension is the most important thing with ARD. They come in and say “I can’t lose my license, help me fix it.” And even if you do get suspended with ARD, there are still ways to keep driving through the ignition interlock program. We won’t get into that today, but there are ways to fix that too.

Tim, let’s pivot to the perks of ARD and what happens if you don’t get it. What are the mandatories in effect for DUIs if you get convicted?

So for me personally, the effect on your criminal record would be the most important thing. But obviously the punishments that come along with DUIs, the license suspensions, all of that can be very important to people too. It just depends on where your priorities are.

But it can’t be overstated how profound the effect of a conviction is on your life. You can lose professional licenses. You can lose the ability to go to certain colleges. You could lose the ability to advance in certain professions. You could be gated out entirely out of certain fields based on the kind of conviction. And very importantly, you could lose your firearm rights depending on the conviction. If you get convicted of a certain level DUI, you become a person not to possess federally and in the state of Pennsylvania.

And I do not want to understate this — not only as it relates to your Second Amendment rights — but one of the biggest things with ARD is it’s a clean sweep. All of those indirect issues that come up in life when you have a criminal record — your professional licenses, whether you can stay in school, whether you continue driving — all of those indirect impacts are literally wiped away. It’s huge. It’s worth its weight in gold. And we haven’t even gotten to the fact that there are certain penalties for DUIs you’re going to be spared from altogether.

Life is easier without a criminal record, ten times over. You get to treat it as though it never happened. That’s the point of expungement. You don’t have to disclose it. It gets expunged. It’s gone. Nobody can see it.

With DUIs right now though, there is a small caveat. You do get expungement, but it’s almost like a public expungement. Law enforcement and courts can still see that you did ARD for 10 years. And it is also on your driving record — there’s no getting around that. PennDOT is required to maintain a record of your driving history. There’s no look-back window on that driving history.

Most times when you go for a job or an interview or a background check, they’re looking at your criminal record, and that’s what gets expunged. That’s the great perk. Police can see it because of JNET — the system they use when looking at criminal information that goes through several different databases. Police have access to that on the side of the road. They can access your criminal record, your PennDOT record, and even your out-of-state driving record through it.

The clerk of courts maintains records for 10 years because of the new statute. And if you’ve had ARD within 10 years and you pick up another DUI, that counts as a second offense under the new statute 382(h). The statute specifically authorizes them to prove the existence of that ARD within 10 years based on clerk of courts documents. So clerk of courts is now maintaining those records for 10 years, and then even those records are expunged or destroyed.

So your PennDOT record after 10 years will be the only thing that shows you had a DUI, and only police and PennDOT can see that. Of course, if you’re going to be a truck driver or in employment that checks your driving record, they’re going to see it. And insurance companies check your driving record when you go to get insurance as well.

And I just want to caveat again — ARD is not just for DUIs. There are other crimes: retail theft, criminal mischief, first-time lower level offenses that you can get ARD for, and you still get all of these great perks. Getting it expunged, it not being on your record, future employers not seeing it, colleges not seeing it. I don’t want that to be lost just because we’ve been talking a lot about DUIs.

Tim, let’s also talk about — with ARD, you are not convicted of the crime. It is a diversion program. It literally takes you out of the straight line of the justice system from charged to final disposition. It puts you over here in this other category. You’re never convicted of the crime. This is not you pleading guilty to get into ARD. I hear that a lot from people: “Do I have to plead guilty and say I did it to get ARD?” No, you don’t.

Now there is a nuance there. Some counties do require you to stipulate to the facts to some degree. And that actually is one of the changes caused by the law change a few months ago — you do now have to at least acknowledge or take accountability for the facts.

And that gets into something we’re going to talk about in a moment — the new DUI section that allows them to still prosecute you as a second-time offender if you get a future DUI, even if you got your conviction vacated and expunged because you did ARD on your first one.

But before we get into that — the financial side of ARD. How much money you’re paying to the court system is a lot lower with ARD. Simple reason: you’re not convicted of the crime. And with DUI specifically, there are mandatory fines when you’re convicted. With ARD, they cannot statutorily fine you. They can still assess court costs, so money’s money, but it is cheaper because you don’t have the fine plus the court costs. You just have the court costs. That saves people sometimes thousands of dollars.

Now the other major thing — with DUIs, if you get convicted in Pennsylvania, first offense even, you’re hitting a mandatory prison sentence right out of the gate. You could have never been in trouble before in your life and you’re going to get a mandatory prison sentence if you don’t handle it correctly. It’s literally in the statute as to what the penalty has to be. With ARD, you’re not convicted, so they cannot assess that mandatory penalty against you. You completely avoid jail.

Now the caveat to this is that a lot of times we can take that mandatory jail time even on a conviction and get somebody house arrest instead of jail time — home confinement versus jail confinement. You still have to do the right stuff to get that, but with ARD you don’t have to worry about it either way because you’re not convicted of the crime.

So Tim, for a first offense DUI, let’s just lay out the mandatories so people know what they’re dealing with.

So the first offense, assuming it’s tier one — the lowest level of impairment — there is no mandatory jail sentence. There is a six-month probationary period and I believe a $300 mandatory minimum fine. And that’s a very low number of DUIs — maybe 5% or less. Most of those are refusals without a search warrant. Just a general impairment situation.

If you refuse the blood test, it’s important to keep in mind you actually get a license suspension just for refusing. But again, if you get ARD on a refusal, you’re heightened scrutiny, so you’ve had to do all the work to get it. You might go in on what they call tier one because they didn’t get a warrant — you just refused on implied consent. But you’re going to get another license suspension packed on for 60 days because they don’t have your blood. That’s also in the statute.

And if they did do their homework and got a warrant and later obtained blood at the highest tier, or if you refused the warrant, it’s presumed that you’re at the highest tier of impairment. Which means you’re actually getting double-whacked. You’re getting a 12-month suspension on the refusal and you’re getting another full suspension on top of that.

Again, please listen to our episode last week where we unpacked all of that because we made recommendations in different scenarios about how you should engage with police on the side of the road with that blood test. You don’t want to find yourself in that circumstance wishing you’d known what to do.

Now, this is where the jail time comes in — tier two. Tier two is 48 hours mandatory minimum. So two days in jail or two days on house arrest if you do the right things. And it’s up to six months — two days to six months of mandatory jail time. That’s the maximum for first offense DUIs, and that maximum could be for probation or for confinement.

And then tier three — 72 hours. Three days. And again, up to six months. The fines: $500 for tier two, which is the .10 to .159 range — that’s middle tier. And then the highest tier is .16 or over, or drugs. The fine for that is $1,000 mandatory minimum.

Alright. Tell me lastly about the new section in the law that got enacted just a few months ago at the very end of last year, very beginning of this year — subsection 3802(h).

So 382(h) is a brand new crime. They defined a new set of elements that essentially includes all of the DUI elements, but as an additional element, the Commonwealth would prove that you had accelerated rehabilitative disposition for a DUI offense within the last 10 years. And in order for them to prove that, they can introduce clerk of courts documents — the records of your ARD. There are actually several other ways they can prove it as well.

And if they can prove that, then it is treated as a subsequent DUI offense. It elevates the grading and the number of offenses. It’s important to know that if you got a DUI and had previously had ARD within the last 10 years, and you caught that second DUI within the window between the Shift opinion and the enacting of the statute, that would be an ex post facto offense. You can’t be convicted of this 382(h) offense for something that happened before the statute was enacted. This only affects people who get a DUI after this statute was enacted.

Alright. Great. Tim, I really appreciate that. Justin, I appreciate you as well and everything that you imparted upon people today.

In conclusion — there is a big takeaway here with ARD. It is such a benefit. If you can take advantage of it with your case, do it. It is a clean sweep. It saves careers. It saves jobs. It saves futures. But you’ve got to do the right stuff to get it. And that’s because of these major changes in the law that require knowledge and require understanding of what you need to implement, and implement early, to get to that outcome in your case.

You have to be proactive. There are things that you need to do. So again, get to us as early as you can. And if you know you’re going to be charged with a DUI, don’t wait to receive your charges — which could come a month or two later. Call us right away. We’re happy to at least get you started or impart the knowledge so you’re not spending another month wondering what you should be doing and wishing you’d used that time wisely.

Get to us early. Help yourself. A lot of this is guided and controlled by you. And having the knowledge to do it is what wins cases.

Alright, for anybody who’s watched to the end, I’m going to let you in on a little secret. We’re trying to do something a little fun here. We’re calling it the Search and Find Challenge. Every week we’re going to be changing up something in our studio — it might be something really subtle, a little piece of equipment, maybe we move something, add something, or take something away. I want everybody who’s listened this far to know this little secret because we’re going to do a little challenge.

And I’m going to tell you only this time what that thing was. When you saw Justin talking, you probably saw in the corner of his screen a little snail with a little lantern. And whatever the knickknack or thing is that we have is going to somehow relate back to something we’re talking about in the episode. I want you, the listener, to leave a comment in the comment section about what you think it is.

I’m going to randomly look through those comments and select a listener to send some Kearney Law or Now We Defend podcast swag to. It might be a hat, a shirt, a tote bag, a coat. We’re going to do this on an ongoing basis because I’d like to have some fun with this and have everybody kind of join in. You know, we’re lawyers — we’re always looking at those little intricate details that help win cases. So that’s why we want to do this and let you in on the fun a little bit.

Thank you so much for watching the Now We Defend podcast. This has been a great episode. We’re looking forward to doing another one for you guys next week. We’re trying to drop episodes every single week, so keep an eye out. Thanks for listening.