In Commonwealth v. Chichkin, the Superior Court held that prior acceptance of ARD does not constitute a conviction for sentencing purposes if an individual is again arrested and subsequently convicted for driving under the influence. The Court held that the portion of 75 Pa.C.S. 3806(a) that statutorily equates prior acceptance of ARD to a prior conviction for purposes of imposing a mandatory minimum sentence was unconstitutional. As a result, in most cases, an individual will now be facing either 48 or 72 hours in jail rather than 30 or 90 days, depending on their BAC, if convicted again for DUI after successful completion of ARD.

The Court did allow a prosecutor the option of presenting a fact finder with evidence beyond a reasonable doubt of the guilt of the individual in the case in which he or she accepted ARD in an effort to treat the subsequent case as a second offense for sentencing purposes. It will be interesting to see which, if any, counties attempt to do so and what level of proof the Court will require. Bucks County has already stated that they will try to meet this standard. It will also be interesting to see how a Court reacts when confronted with the reality of conducting a separate trial for sentencing purposes only.