For the Defense - Vol. 5, Issue 3 - 42

prosecutors are currently trying to figure out
ways to have a judge find that ARD is a "prior
offense" for mandatory minimum purposes. The
current Superior Court decision is in our favor on
that front, and many DUI attorneys have opined
on how to argue that issue. My discussion about
the impact of the expungement law only pertains
to the introduction of ARD acceptance when the
district attorney is asking the sentencing judge to
sentence above the mandatory minimums based
upon a prior ARD disposition.
"Expunge" is defined as "[t]o remove
information so that there is no trace or indication
that such information existed."3 As with many
legal definitions, we must read a bit more
because there is almost always more to the
story. Here, the expungement law mandates
that prosecutors retain certain information
regarding ARD acceptance. More specifically,
the "prosecuting attorney and the central
repository shall, and the court may, maintain
a list of the names and other criminal history
record information of persons whose records are
required by law or court rule to be expunged
where the individual has successfully completed
the conditions of any pretrial or post-trial
diversion or probation program or where the
court has ordered expungement."4 The law
mandates that the prosecutor retain certain
information, but the law also limits how the
information can be used. The information can be
retained "solely for the purposes of determining
subsequent eligibility for such programs,
identifying persons in criminal investigations
or determining the grading of subsequent
offenses."5 Therefore, there are three permitted
purposes or uses for the retained information.
Clearly, the district attorney is likely to going
to reference the ARD at sentencing as part of
a "prior offense" argument, so the sentencing
judge is probably going to be aware of the
ARD disposition. However, you can argue that
the expungement law prevents the judge from
considering the ARD disposition for discretionary
sentencing purposes. As a discretionary
consideration, ARD would NOT increase the
grading, so it would not fall under Section
9122(c), and should not be considered by the
sentencing judge.

Chichkin Impact on ARD
The Superior Court decisions have also impacted
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For The Defense l Vol. 5, Issue 3

how district attorneys are handling ARD cases
across the Commonwealth. In speaking with
defense attorneys across the state, I believe
that prosecutors have adopted one of three
approaches: 1) no change, taking a "business as
usual" approach; 2) deny ARD in all DUI cases;
or 3) allow ARD but require the signing of an
additional ARD-DUI Stipulation of "prior offense"
form. I am sure that there are other variations
and quirks being used in the counties across
Pennsylvania. Some counties may have tightened
or restricted the ARD consideration factors,
meaning some prosecutors may be denying ARD
in more cases. Some counties may still allow ARD
but prohibit the person from expunging the
record upon completion of ARD. I recommend
that everyone continues to follow the PACDL
listserv and attend PACDL CLEs that discuss these
post-Chichkin issues.
Some county prosecutors have stayed the
course and are utilizing the ARD program as
usual. Those counties are in the minority. For
practitioners in those counties, you are lucky.
I have heard that the district attorney in some
of those counties accept the Chichkin holding,
meaning ARD cannot be used as a "prior
offense" for mandatory minimum purposes, but
the prosecutor will try to introduce the prior
acceptance of ARD as an aggravating factor at
the time of sentencing. To be clear, the district
attorney will not be seeking increased mandatory
minimums based upon prior ARD participation,
but the prosecutor will seek an increased
sentence above the mandatory minimums
based upon an ARD acceptance. For example,
as discussed supra, with the highest tier DUI,
a first offense carries a mandatory minimum
sentence of seventy-two hours, second offense
carries a mandatory minimum sentence of ninety
days, and a prosecutor may seek a sentence of
forty-five days or sixty days on a first offense
DUI if the client had a prior ARD. Hopefully the
client expunged the records, and hopefully the
sentencing judge agrees with my argument that
the expungement law prohibits the judge from
considering the prior ARD as a sentencing factor.
Some district attorneys have responded to
Chichkin by denying ARD in all DUI cases. There
have been many discussions about the possibility
of filing Motions to Compel and trying to have
the trial court approve ARD. The district attorneys
are going to argue that they have wide discretion
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