Aug 9, 2025 By Mike Jones 7 min read

A recent decision by the state Supreme Court has upended how some prosecutors and defense attorneys are approaching first-time offenses for driving under the influence.

In a May 30 opinion, the court ruled that anyone who successfully completes the accelerated rehabilitative disposition program for DUI would not face a harsher sentence if they get a second. The ARD program is a way for first-time offenders to wipe their record clean if they adhere to the conditions set by the judge.

The ruling is significant because Pennsylvania has a tiered system for sentencing, with one of the components being the number of times a person has been convicted of DUI.

With the high court’s ruling no longer viewing ARD as a first offense, some district attorneys are not offering the program for defendants who were found with drugs in their system or charged with the highest tier of DUI, meaning their blood-alcohol level was at least double the state limit.

“It opened up a big can of worms on this,” Washington defense attorney C.J. Blackwell said. “It truthfully is a mess. … Both the prosecutor’s office and defense attorneys are pulling their hair out.”

District attorneys have discretion on how to handle DUI cases, but with ARD no longer considered a first offense for the purpose of sentencing, Washington County District Attorney Jason Walsh has decided to only offer it for the lowest-tier DUI cases.

“There may be 67 different ways because there are 67 counties with 67 different DAs,” Walsh said. “Sometimes, the defense bar outthinks itself. This system has been in place with ARD, but I guess the defense bar didn’t like it. Sometimes you need to see the forest through the trees. You’re going to get another ARD? You’re forcing DAs to change, and it’s all discretionary.”

Walsh is also clawing back offers to defendants who were arrested before the May 30 ruling but had been working through the process of applying for ARD following their preliminary hearings. In response, Washington defense attorney Keith Emerick has filed petitions for about a dozen defendants asking Washington County Judge Jesse Pettit to review the fairness of revoking the plea deals after the fact. The petitions also question whether defendants who waived their right to a preliminary hearing should have a chance to contest their case now that Walsh’s office has pulled back the offer.

“The problem is plea negotiations are considered almost like civil contracts. And with contract law, if you reach a deal with somebody and someone acts in accordance with that deal, you can enforce that afterward,” Emerick said. “These folks took steps they wouldn’t otherwise have taken because the DA made that offer. And now the DA is trying to pull the rug out from under them.”

His motion argues the district attorney’s office should be forced to honor the agreement, or that a judge should impose a 12-month continuance, presumably to give enough time to allow the state Legislature to find a solution to the conundrum. If those options are not agreeable during the Sept. 3 hearing before Pettit, then Emerick is arguing that the clients should be able to go back and challenge the charges at their preliminary hearing since they waived that proceeding before the rules of the game had changed.

Emerick said the situation has been especially tense when first-time DUI defendants have appeared in court expecting to be accepted into the ARD program only to be told it was no longer available.

“I’ve seen people learn this is happening to them first-hand in court, and they’ve responded angrily,” Emerick said. “It’s a substantial rug-pull.”

For Walsh’s part, he said the Supreme Court decision has put district attorneys across the state in a box with how people who commit multiple DUI offenses should be treated by the law. District attorneys have the discretion on who they can offer the ARD program to, so it is up to each individual county to make its own policy on the matter.

“How many breaks can the law give (defendants)? I’m going to try to be as fair with the new ruling as I can be,” Walsh said. “I think other counties will fall in line.”

But besides Westmoreland County, most of the other neighboring district attorneys – including in Fayette and Greene counties – aren’t changing how they offer ARDs. Fayette County District Attorney Michael Aubele said he saw no reason to change his policy because it ultimately is up to the state Legislature to find a solution to the problem.

“There is a push for a change in the law (with) some change in the statute to the way we used to do it,” Aubele said. “My opinion is that any changes to how we treat ARDs should come from the Legislature. I’m not here to legislate. I’m not doing any changes to my policy. … But we are hoping that the Legislature comes in to make necessary changes to the statute.”

The main reason Aubele said he is not changing his policy is because by not offering a defendant ARD, the prosecutor’s office is automatically assuming that person will reoffend instead of being rehabilitated by the process. He pointed out that it’s the second offense that is the problem, and the person should not be punished for an offense they may never commit.

“I understand what some of these guys are doing, some of the necessity of it, and I’m not going to question the decisions by other district attorneys,” Aubele said. “At the same time, I feel some of the policies and suggestions that have come down have been more geared toward punishing people for first-time offenses rather than second-time offenses.”

Meanwhile, Blackwell is currently working in Washington County to file petitions for defendants who went through the initial ARD program but are now facing harsher sentences from their second-offense DUIs. He said since ARD is no longer considered the first offense, those defendants should be treated in accordance with the ruling so the subsequent DUI charge should really be considered the initial offense.

“I’m sure the legislature has this very high on its priority to fix,” Blackwell said. “There are some interesting challenges that can be lodged.”

But without the option for ARD available in some counties, Connellsville defense attorney Shane Gannon suggested that many defendants might vigorously challenge their DUI charges rather than accepting a plea deal.

“I think it’s a fairness thing,” Gannon said. “People have been offered ARD for that (in the past) and to pull it just because of a decision? Is it fair to those who have just bad timing? But I think you’re going to see a lot of defense attorneys contest it.”

That would undoubtedly gum up the courts and likely require the district attorney’s office to spend countless hours on DUI cases, Gannon said. But that might be the only tool defendants and their attorneys have in fighting against district attorneys who are unwilling to offer ARD in some cases.

“Before, did you want to turn down ARD and lose it? But if it’s not even there, what do you lose (contesting the charges in court)? I think it’s our only way to combat it,” Gannon said. “If I have a client who is ARD eligible, I’ll fight it and make (the prosecutor) go through the process. And I think a lot of other attorneys would, too.”