For the Defense - Vol. 5, Issue 3 - 41

is extreme. For example, a first-time offender
of DUI in the highest range of penalties, such
as a violation of 75 Pa.C.S. 3802(c), would face
a mandatory minimum sentence of seventy-two
hours incarceration, $1,000.00 fine, and a twelvemonth license suspension. A second offense in
the highest tier of DUI would carry a mandatory
minimum sentence that included ninety days in
jail, $1,500.00 fine, and eighteen-month license
suspension, and the conviction would be severe
enough to trigger the Federal firearm prohibition
under 18 U.S.C. 922(g). Clearly, whether or not
a client has a "prior offense" has an incredible
impact on the penalties that will be imposed by a
sentencing judge.
In Chichkin and Rosche, the creative criminal
defense attorneys from the Defender Association
of Philadelphia challenged the constitutionality
of the "prior offense" definition as set forth in
section 3806. In the cases, the Superior Court held
"the particular provision of 75 Pa.C.S. § 3806(a),
which defines a prior acceptance of ARD in a
DUI case as a 'prior offense' for DUI sentencing
enhancement purposes, offends the Due Process
Clause and is therefore unconstitutional."2 The
holding is relatively straight forward, meaning
ARD acceptance for a DUI no longer constitutes
a "prior offense" of DUI. The decisions directly
impacted the defendants involved by eliminating
a "prior offense" from sentencing consideration,
and the decisions will have a ripple effect on DUI
cases throughout the Commonwealth.

Impact on Sentencing Proceedings
When these joint opinions were issued,
defense attorneys across the state applauded
and championed the win because it directly
benefited many of our clients, but we also were
apprehensive as we waited for the response
from prosecutors. The reaction has varied from
county to county. With repeat offender DUI
cases that are scheduled for sentencings, some
district attorneys have accepted the recent
decisions and do not try to use ARD as a "prior
offense." In other counties, district attorneys
still argue that ARD acceptance is a "prior
offense" and that the Superior Court decision
was wrong. In such situations, at the time of
sentencing, the prosecutor introduces evidence
of ARD acceptance, argues that Superior Court
decision was wrong in Chichkin and Rosche, and
requests that the judge sentence the defendant

accordingly. The judge, bound by the Superior
Court precedent, rejects such an argument,
imposes a sentence, and the district attorney
then appeals to the Superior Court. In other
counties, prosecutors are trying to present the
underlying evidence of the prior ARD at the time
of sentencing to allow a judge to find that the
defendant had a prior offense. It is basically a
trial on the prior offense at sentencing. Leonard
Sosnov has drafted a template Motion in Limine
to prohibit prosecutors from introducing evidence
related to the prior ARD case at the time of
sentencing to prove that the defendant had a
"prior offense." The Motion has been circulated
on the PACDL listserv, and I would highly
recommend that everyone handling a DUI case
obtain a copy.
The battle over whether or not the district
attorney can prove a "prior offense" to increase
the mandatory minimum penalties has been
discussed relatively frequently in DUI-defense
attorney circles. I have not heard as much
discussion on whether or not prosecutors can
introduce evidence of the prior ARD acceptance
as a factor for the judge to consider when
determining the appropriate sentence to impose.
Basically, some prosecutors who cannot use ARD
as a "prior offense" to increase the mandatory
sentences are going to argue to a judge that the
judge can still consider the prior ARD acceptance
and impose sentences above the mandatory
minimums. A sentencing judge is legally
permitted to consider ARD dispositions and nonconviction information at the time of sentencing.
In Chichkin, the Court cited Commonwealth v.
Knepp, 453 A.2d 1016 (Pa. Super. 1982), and
stated "a trial court is permitted to consider
the defendant's prior acceptance of ARD as a
sentencing factor in determining the appropriate
sentence within the guidelines range, so long as
the court does 'not ignore the presumption of
innocence nor regard the prior arrest information
as evidence of criminal conduct.'"
It is important to note that the Knepp decision
pre-dates the expungement law at 18 Pa.C.S.
§ 9122. I believe that a strong argument can
be made that the expungement law would
prohibit a prosecutor from informing a judge at
sentencing about a prior ARD disposition. I again
emphasize that this argument is limited to the
introduction of ARD acceptance for discretionary
sentencing purposes. In my experience, most
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