CIVIL VERDICTS - PREMISES LIABILITY * Estate of Joan DeMarco v. The Marquis - Decedent business tenant of apartment/office complex owner murdered by former employee of defendant in violent assault during office burglary. Plaintiff's estate alleged negligent security theory of liability against defendant. Settlement negotiated with responsible insurance company in excess of One Million Two Hundred Thousand ($1,200,000.00) Dollars prior to trial. * Khaled Bakar v. Home Properties, Inc. - Plaintiff was standing on third floor balcony of friend's apartment owned by defendant, when the floor suddenly collapsed causing plaintiff to fall to ground. Plaintiff sustained fractured ribs, non-displaced tibia fracture and herniated disc, which was treated with physical therapy and multiple epidural injections. Montgomery County jury returned a verdict in the amount of Seven Hundred and Sixty Nine Thousand ($769,000.00) Dollars. Plaintiff filed Motion for Delay Damages which was granted and case was settled for Nine Hundred Thousand ($900,000.00) Dollars. * CIVIL VERDICTS - AUTOMOBILE ACCIDENTS * Riccardo v. Kim - Plaintiff sustained fractured cervical vertebrae at C5-6 level which required two surgeries and metal screws, arising from a two vehicle automobile accident. Out-of-court settlement negotiated with responsible insurance carriers in amount of Four Hundred Thousand ($400,000.00) Dollars prior to trial. * Estate of Robert Kane v. Joseph Falco - Decedent killed while passenger in one-car accident where intoxicated driver lost control of vehicle. Wrongful death claim settlement negotiated with responsible insurance company in the amount of Six Hundred and Sixty Thousand ($660,000.00) Dollars prior to trial. * Vinnie Moss v. Baldi Transportation/Erie Insurance Company - Plaintiff awarded Two Hundred Thirty Five Thousand ($235,000.00) Dollars by jury after trial. Defendant trucking company bankrupt and uninsured. Uninsured motorist claim settlement negotiated with plaintiff's insurance company in the amount of Two Hundred Thousand ($200,00.00) Dollars. * CIVIL VERDICTS - LIQUOR LIABILITY * Gerald & Irene Kane v. Dublin Wine and Spirits and Commonwealth of PA - Plaintiff husband and wife sustained multiple injuries in head-on collision with drunk driver. Husband-plaintiff sustained head injury resulting in brain hemorrhage and coma, with substantial recovery. Wife-plaintiff sustained broken ankle. Out-of-court settlement successfully negotiated against defendants prior to trial. Husband's claim - Two Hundred Forty Thousand ($240,000.00) Dollars. Wife's claim - Ninety Thousand ($90,000.00) Dollars. (Bucks County)* Edward Pisarek v. Adriatric Club - Plaintiff police officer assaulted while on duty by intoxicated bar patron skilled in martial arts. Plaintiff sustained permanent partial hearing loss and multiple lacerations. Non-jury trial verdict in favor of plaintiff and against defendant in amount of One Hundred Fifty Thousand ($150,000.00) Dollars. (Philadelphia County) CIVIL VERDICTS - PRODUCT LIABILITY* Keith Rosenberger v. Galoob Toys, Inc. - Plaintiff sustained temporary partial loss of vision in one eye with increased risk of future glaucoma, when struck in eye by defendants' children's toy, while plaintiff demonstrated newly purchased toy for child. Out-of-court settlement successfully negotiated against defendants in the amount of One Hundred Fifty Thousand ($150,000.00) Dollars prior to trial. (Montgomery County)* Raymond Cost v. Caterpillar, Inc. - Plaintiff sustained partial amputation of his lower leg, when his foot was crushed in an unguarded pinchpoint of rotating couplings inside engine area, while plaintiff was performing maintenance of defendant's heavy trash compactor/metal shearer. Out-of-court settlement successfully negotiated against defendant in the amount of Four Hundred Seventy Five Thousand ($475,000.00) Dollars prior to trial. (Montgomery County)

Does ARD Count As a Prior DUI Offense in Pennsylvania? Not anymore.

The Pennsylvania Superior Court has ruled that the portion of Pennsylvania’s DUI statute which defines acceptance into ARD  as a “prior offense” for sentencing enhancement purposes is unconstitutional.

Drug Driving PhotoIn Pennsylvania, a person charged with a first offense DUI is generally eligible for pretrial diversionary program called Accelerated Rehabilitative Disposition (ARD). One of the primary benefits of ARD is that upon successful completion of the program, the defendant is entitled to have the DUI charges dismissed and the corresponding criminal/arrest record expunged. ARD does not, and has never resulted in a conviction or finding of guilt.

Nevertheless, under prior Pennsylvania law, a DUI that was dismissed through the ARD program was treated as a prior conviction for purposes of the mandatory minimum sentence enhancement for repeat DUI offenders. That means that a person who successfully completed ARD would be sentenced as a second time offender for a subsequent DUI offense committed within 10 years of the prior DUI arrest.

The difference between the mandatory  minimum sentence for a first offense DUI and a second offense is significant. For example, the mandatory minimum for a first offense DUI with a blood alcohol content (BAC) level of .16 and above is 72 hours, and the maximum sentence is six (6) months.  For a second offense though, that same charge carries a mandatory minimum of ninety (90) days in jail and a maximum potential sentence of up to five (5) years in jail.

We, like many Pennsylvania DUI lawyers, have always felt that classifying an ARD as a “prior conviction” was completely inconsistent with the fact that ARD results in a dismissal, and is not in anyway an admission of guilt, a finding of guilt, or proof of any misconduct on the part of the defendant. Indeed, a person who is completely innocent of DUI may nevertheless choose to participate in the ARD program simply to avoid the risk, however slight, of conviction at trial.

Fortunately, on May 20, 2020, the Pennsylvania Superior Court issued its opinion in Commonwealth v. Chichkin, 2020 Pa. Super. 121, declaring that the provision of the DUI statute which treats prior ARD disposition as a “prior offense” violates the Due Process Clause of the United Stated Constitution.  Accordingly, a sentencing judge may no longer increase a person’s sentence for DUI based solely on that person’s prior acceptance of ARD, without proof beyond a reasonable doubt that the person actually committed the prior DUI offense.  As a practical matter, it will be extraordinarily difficult, if not impossible, to prove that a person committed a prior DUI offense where the charges have been disposed of through the ARD program.  However, that is a a topic for a separate blog post.

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