Chichkin & Moroz: PA Supreme Court Decision Makes ARD a PA Prior

Written by Timothy Czekaj

In an opinion filed on Oct. 4, the Superior Court of Pennsylvania explained that a precedent regarding DUI sentencing would change, impacting future DUI cases, following a close vote of five justices to four.

The ruling in Commonwealth v. Moroz essentially means the Superior Court reversed itself when it previously overturned a holding from Commonwealth v. Chichkin, changing what it means to complete Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) program.

What is ARD?

ARD is typically available to Pennsylvania residents facing non-violent, minor offenses. The program prevents some charges from appearing on qualifying offenders’ records, provided they complete the requirements.

ARD operates like probation. And while the details of each ARD vary, participants could be tasked to complete counseling, community service, pay costs, or abstain from alcohol or drugs.

Like probation, ARD participants are monitored, and failure to comply typically results in the original charge resuming and once again being prosecuted by the Commonwealth.

Chichkin Changed DUI Penalties for Subsequent Offenses

Under Pennsylvania Statutes (75 Pa. C.S. § 3806), ARD acceptance in a DUI case counts as a prior offense. If someone is convicted of a DUI within 10 years of a prior offense, they could face increased sentencing under 75 Pa. C.S. §3804.

So, if a past ARD participant is arrested for a second instance of DUI within ten years of accepting ARD, they’ll face steeper penalties.

However, in Commonwealth v. Chichkin, the court vacated the sentencing for  Chichkin’s “second” offense after his ARD participation. If convicted of his second DUI offense in 10 years, Chichkin could be sentenced to imprisonment of at least five days, a fine of at least $300 up to $2,500, attend an alcohol highway safety school, and comply with all drug and alcohol treatment requirements imposed by 75 Pa. C.S. §3814 and §3815.

The court ruled the sentencing violated constitutional protections guaranteed under another case (Alleyne v. United States), and Chichkin was sentenced under first-offense standards. This changed the long-standing precedent that anyone with a prior ARD who committed another DUI would have the prior ARD count as a prior offense.  Suddenly, prosecutors had to overlook a previous ARD, and most were not happy about it.  Some counties stopped offering ARD to DUI offenders altogether, which is a ridiculous but judicially permitted remedy.

Commonwealth v Moroz Decision was Based on Chichkin

In Richard Moroz’s case, the Commonwealth of Pennsylvania appealed the “judgment of sentence” entered in Centre County Court of Common Pleas in 2020.

Moroz was arrested in July 2019 for a DUI, then arrested in August 2019 for a second DUI. He entered the ARD for the first charge in February 2020 and negotiated a guilty plea for the second charge.

Moroz hadn’t been sentenced before the Chichkin opinion was released. Still, when he was sentenced, the court relied on Chichkin’s opinion logic: someone who participates in ARD for DUI will be sentenced for a first-time offense for a second DUI within ten years instead of the enhanced sentencing like normal.

However, the Commonwealth filed an appeal against that sentencing in March 2021, which was decided this October. The court found in favor of the Commonwealth, throwing out Moroz’s initial sentencing and overruling its own previous decision in Chichkin. Moroz will face enhanced sentencing for multiple DUIs within ten years.

The Superior Court, for the moment, has reversed Chichkin: anyone who completes the ARD program will have a first offense going forward, meaning they’ll face steeper penalties for subsequent DUI offenses.  Prosecutors are once again “happy” and reinstating ARD programs but stay tuned. In an unusual procedural dual, the Pennsylvania Supreme Court also finds itself weighing the same decision, once again, that the Superior Court just ruled on. The case pending is Commonwealth v. Verbeck. This case has already been argued, and a decision is imminent. Essentially, the same question regarding whether an ARD counts as a prior offense is before the court. To sum it all up, Chichkin said ARDs no longer count as a prior offense, Moroz reversed that decision to make them count again, and Verbeck could change it all again, or keep ARDs counting as priors.

Is ARD Beneficial after Moroz?

Although it might seem pointless to participate in ARD if you still face enhanced sentencing for multiple DUIs, the program can help you with first-time offenses. It can shorten your license suspension, lower fines, clear your record, or help reduce incarceration. If one never gets a second DUI, ARD counting as a prior offense will never matter.

The change the court made with the Moroz decision isn’t permanent: there are chances for appeals and other cases dealing with similar legal implications for ARD participants as mentioned above. ARD isn’t always the right option for everyone, but a criminal defense attorney will be able to help you explore that option.

Going Forward: Understanding Precedent and Calling a Lawyer

If you’re facing a DUI offense, your best option may be to turn to a criminal defense attorney. They’ll be able to explain your options with ARD and how that could affect your sentencing. Knowing the maximum penalty is critical when weighing your options.

As an experienced DUI defense attorney in Perry County, PA, Tim Czekaj, with Czekaj Law, LLC, has a detailed knowledge of Pennsylvania law and local court systems. If you’re charged with a DUI in the area, call (717) 275-9770 or submit a request here to schedule a free consultation.