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DUI following diversion in Pennsylvania

Title: Had ARD Before? Pennsylvania's New "DUI Following Diversion" Charge Explained

Search title: DUI After ARD in Pennsylvania: The New 3802(h) Charge | The DUI GUY

Meta description: Pennsylvania's Act 58 created a new crime: DUI within 10 years of completing ARD. The DUI GUY, Paul Aaroe, explains the penalties and the defenses.

Category: PA dui, DUI Law

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If you completed ARD for a DUI and you are arrested again, your new case will not look like a first offense. Since December 22, 2025, Pennsylvania has a separate crime for it. Here is how it works and where I see the fights.

How we got here

In 2025 the Pennsylvania Supreme Court decided Commonwealth v. Shifflett, 335 A.3d 1158 (Pa. 2025). The court held that a prior ARD could not be used as a "prior offense" to raise the sentence on a later DUI. ARD is not a conviction. Nobody proved the first case beyond a reasonable doubt.

The legislature answered with Act 58 of 2025. It passed both chambers without a single no vote, and the Governor signed it on December 22, 2025. It took effect that day.

The new charge: 75 Pa.C.S. § 3802(h)

Act 58 did two things at once. It took ARD out of the definition of a prior offense in § 3806. Then it created a new offense, DUI following diversion. A person commits it by driving under the influence within 10 years after completing ARD, or a similar program in another state.

So the prior ARD is no longer a sentencing add-on. It is part of the new charge.

The penalties

A first DUI following diversion is sentenced at the second-offense level. The mandatory minimums in § 3804 are:

In the highest tier the charge is a first-degree misdemeanor. The sentence must run consecutively to other sentences. A later DUI is then graded and sentenced as a third offense, which in the top tier is a felony.

How the Commonwealth proves the old ARD

Many people had their ARD expunged and assume it is gone. It is not gone for this purpose. Under Act 58 the clerk of courts keeps a certified copy of the ARD completion order for 12 years, and PennDOT keeps its record for the same period. Either one can be used to prove the prior ARD.

ARD itself changed

Before a judge admits you to ARD on a DUI, there must now be a colloquy on the record. The judge confirms you understand what you are giving up and that a later DUI within 10 years will be charged under § 3802(h). ARD is still usually the right choice for a first offense. You should make that choice knowing the price of a second arrest.

Driving on a DUI suspension

Act 58 also rewrote § 1543(b). A first conviction for driving while suspended for DUI now carries a flat 60 days and a $500 fine. A second carries 90 days and a $1,000 fine.

Where the defenses are

• Does § 3802(h) reach an ARD completed before December 22, 2025? The act has no clause that says so either way.
• Was the prior ARD entered with the warnings the law now requires?
• Can the Commonwealth produce a proper certified record?
• Was the new arrest within 10 years of completing ARD, not of the first arrest?
• Every ordinary DUI defense still applies: the stop, the field tests, the blood or breath test, and the refusal warnings.

Frequently asked questions

Does ARD count as a prior DUI in Pennsylvania? Not as a "prior offense" under § 3806. Instead, a DUI within 10 years of completing ARD is charged as a separate crime, DUI following diversion, with second-offense penalties.

What is the penalty for a DUI after ARD in Pennsylvania? The mandatory minimum is 5 days, 30 days or 90 days in jail, depending on the tier, plus fines and a license suspension in most cases.

My ARD was expunged. Can it still be used? Yes. Certified records are kept for 12 years for use in a § 3802(h) prosecution.

Does the new law apply to an ARD I finished years ago? The act does not say, and it is an issue to raise in your defense. Talk to a DUI lawyer about your dates before you plead to anything.

Can I get ARD a second time? Generally not within 10 years of a prior ARD or DUI conviction.

Paul M. Aaroe, II, the DUI GUY™, of Aaroe Law Offices, PC, defends DUI cases in Northampton, Lehigh, Monroe, Carbon and Montgomery Counties. Call (610) 559-7401 for a free case evaluation. This post is general information, not legal advice.