BETHLEHEM, Pa. — Two recent Pennsylvania Supreme Court decisions could potentially reshape how the justice system handles DUI cases — prompting mixed reactions from prosecutors and defense attorneys while raising concerns about public safety.
In Commonwealth v. Shifflett, decided May 30, the high court ruled that Accelerated Rehabilitative Disposition, or ARD, can no longer be considered a prior offense in DUI sentencing.
In short, the court found that using the pre-trial diversionary program to enhance future penalties for DUI violates defendants’ constitutional rights.
Writing for the majority, Chief Justice Debra Todd noted that ARD doesn’t involve a trial or an admission of guilt, nor proof beyond a reasonable doubt, and therefore is not a conviction.
The ruling seemingly marks a major shift in how DUI cases can be prosecuted, with the court ruling that if a driver hasn’t been previously convicted, the state can’t punish them as if they were.
But weeks later, in Ferguson v. PennDOT, the court ruled that the state Department of Transportation still can use ARD participation to trigger administrative penalties such as license suspensions or ignition interlock requirements.
The result is a legal split in which ARD doesn’t count in criminal court, but still matters in the eyes of PennDOT — a dynamic already altering how DUI cases might be handled in the Lehigh Valley.
Commonwealth v Shifflett by LehighValley Newsdotcom on Scribd
Lehigh County’s new approach
In Lehigh County, District Attorney Gavin Holihan said the Shifflett decision has led his office to re-evaluate how and when it offers ARD.
"We are aware of the recent Pennsylvania Supreme Court decision and it has changed our approach to ARD somewhat, but not drastically,” Holihan said.
"ARD’s purpose is to address cases which involve social or behavioral problems and to provide those accused with certain rehabilitative conditions to further prevent recidivism."
While the program still is available for first-time DUI offenses, Holihan emphasized that his office is being more selective and specifically reviewing each and every case independently.
He outlined new criteria being used to determine eligibility for ARD going forward, including:
- DUIs involving illegal drugs other than marijuana are not eligible for ARD.
- Drivers with a higher blood alcohol content, or BAC, will be scrutinized: “A higher BAC is not necessarily a disqualifying factor for ARD, but it contributes to our consideration of whether the person created an elevated risk to the community and whether the person is amenable to rehabilitation through the ARD program," Holihan said.
- Cases involving erratic driving, speeding or other public safety risks are less likely to qualify.
- Defendants who refused blood-alcohol testing at the time of arrest must meet added requirements — such as community service, substance abuse treatment or anger management — before being considered.
- The defendant’s behavior during the arrest matters: "Those who refuse to cooperate with law enforcement, harass or resist the police officer, or otherwise impede the normal law enforcement process will typically be denied ARD," Holihan said.
- Showing up to court intoxicated? That’s a major red flag. "People who come to court drunk or under the influence of drugs may be required to complete additional conditions prior to being offered ARD,” he said.
Deterrent 'will be diluted'
Holihan said the goal is to identify those who pose a greater risk to the public or are unlikely to benefit from the rehabilitative process ARD is designed to provide.
"We are now more selective about offering ARD and many first-time DUI offenders will not be offered ARD,” he said.
“When a first-time DUI offender is not offered ARD, we will be seeking a criminal conviction and all of the consequences that follow, including time in jail in the appropriate cases."
He warned that while the legal standard for criminal sentencing has changed, the stakes remain high.
He said he believes the high court ruling may result in an increase in the number of homicide by vehicle cases because the change treats DUI offenders more leniently.
“Pursuant to the change in the law, the penalties for subsequent DUI offenses are now lower and the license suspensions are decreased," he said.
"So many repeat offenders will get their licenses back more quickly under the new law.
“Similarly, any deterrent value created by the mandatory jail sentences will be diluted because the ARD participant will be facing their ‘first DUI’ for sentencing purposes because the ARD case is no longer considered under the new case law.”
A defense attorney’s perspective
Criminal defense attorney David Ritter of Kitay Law Offices brings a unique view to the issue — both professionally and personally.
“I’ve been hit by drunk drivers twice in my life in Lehigh County,” Ritter said. “In 2005 I was hit from behind and injured my back.
“And in 2006 I was in a very bad accident where me, my wife and my two young boys, who were 5 and 1 at the time, were in the back of a vehicle that was hit by a drunk driver. We dodged a fatality by about an eighth of a second.
"So I have back-to-back years where I got hit by drunk drivers, so I do have that perspective also in the back of my mind."
He said that while the Shifflett ruling benefits his clients, it’s certainly not a cause for celebration.
“As a defense attorney, it’s my job to represent clients and get the best result possible for them. But you know, of course, I’m not cheering them on.”
Ritter agreed that Shifflett may prompt more DUI cases to go to trial, particularly when first-time offenders are denied ARD.
“I think there may be clients who then wish to pursue a trial if they are disappointed when they hear that they are not going to be offered ARD for the first offense,” he said.
“However, as the defense counsel, I would also have to explain to them that in most cases, it's going to be a judge trial. Most of the cases are not entitled to a jury trial.
“But in those circumstances, if they choose to go to trial, the sentencing if they are found guilty would then be completely in the discretion of the judge.
"There is no plea agreement in place or acceptance of responsibility that they can argue ways in their favor, if they plead guilty to a first offense DUI and get a sentencing recommendation, for perhaps the mandatory minimum in jail.”
He added that the legal uncertainty and evolving county-by-county policies on ARD may take some time to clear.
“I don’t think the dust has completely settled yet on how that’s going to play out."Defense attorney David Ritter on the fallout from Commonwealth v. Shifflett
“I don’t think the dust has completely settled yet on how that’s going to play out,” Ritter said.
“Of course, any client I have that comes to me and now is dealing with a second offense, and I hear that their first offense was handled by ARD, they do get the benefit of going into court and it being a first offense DUI sentence if they plead guilty.”
Still, he praised Holihan’s thoughtful approach.
"I’ve known him for a long time and I respect his desire to make sure that the community is safe and to protect all people," Ritter said.
"And, my goodness. When people come into my office, the first thing I give them is a four-letter answer. I tell them Uber and Lyft, you know?"
Possible legislative reversal
In Harrisburg, lawmakers already are responding to the high court’s ruling.
State Rep. Rob Kauffman, R-Franklin, has introduced a bill to create a “Driving Under the Influence Treatment Program” — a revamped version of ARD that would address the high court’s ruling and be legally structured to count as a prior offense for sentencing.
“ARD is a longstanding and successful pretrial diversion program intended for low-level offenders with little or no prior criminal history,” Kauffman said in a memo to colleagues.
He called ARD "one of the most successful diversionary programs in this Commonwealth."
The memo said the bill "will 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."
The bill proposes that, upon successful completion of ARD, an offender’s record can be expunged. However, the courts can treat participation in the program as a prior offense if the offender is subsequently charged with another DUI.
Ritter said he believes that proposal could bring things full circle.
“One of two things are going to happen,” he said. “Either the individual district attorneys are going to stop giving ARD, or the Legislature is going to jump in, and we could be back to it counting as a first offense if you come back for the second.”
DUI rates and public perception
Holihan said DUI arrests continue to increase in Lehigh County — something he discussed with LehighValleyNews.com for its "Road Ahead" report earlier this year.
At the time, prosecutors said impaired driving was one of the most persistent threats to public safety in the Lehigh Valley.
Last week, Holihan expressed concern that public perception of the recent high court ruling may weaken the deterrent effect of DUI laws.
“A mandatory minimum sentence applies to all convictions for DUI,” he said. “Because ARD is no longer a conviction, the mandatory sentences essentially start with a second DUI charge.
“Anyone who participated in the ARD program who gets a subsequent DUI arrest will now face the mandatory minimum for a first offense.
"Prior to this change in the law, the same person would have faced a higher mandatory minimum sentence.”
He said it will now be more difficult to establish that a driver is a habitual offender (three DUI convictions in five years) who should have their license suspended.
“In the past there was an assumption that a first offense DUI would automatically qualify for ARD. One general thing we can tell the public is that this is no longer the case in Lehigh County.”Lehigh County DA Gavin Holihan
“In the past there was an assumption that a first offense DUI would automatically qualify for ARD. One general thing we can tell the public is that this is no longer the case in Lehigh County.”
He said when it comes to fines and costs, ARD still will cost about $2,800 and a conviction can cost upward of $5,000.
Hearing the costs, Ritter said, most of his clients facing a DUI charge realize the gravity of the charge and ARD steers them in the right direction.
“Most of the people that I deal with come in very humble," he said. "They’re saying, ‘I made a mistake and I need help.’”
After nearly three decades practicing law, Ritter said the vast majority of ARD participants never reoffend.
“They get through it, they made their mistake, and you don’t see them again. And they get the record expunged. That is fantastic.”
Numerous attempts were made to reach the Northampton County District Attorney's Office for comment on this report.
On its website, the county says first time offenders facing a DUI charge may be eligible for ARD if they met these required standards for the program:
- No prior DUI offenses in the past 10 years.
- No serious injury — if accident occurred.
- Good driving record — an absence of excessive moving violations.
- There were no passengers under the age of 14 in the vehicle at the time of the offense.
