Tag Archives: ARD

HOW DOES ACCEPTANCE INTO THE ARD PROGRAM AFFECT POTENTIAL 1983 CIVIL RIGHTS CLAIMS

When an individual has been arrested and in the process his civil rights have been violated, he has the dilemma of navigating pending criminal charges and preserving any potential civil rights claim under 42 U.S.C. § 1983.

In Heck v. Humphrey, 512 U.S. 477, 478, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court confronted “the question [of] whether a state prisoner may bring a § 1983 civil rights suit for damages, and challenge the constitutionality of his conviction.  The Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Pursuant to Heck, courts must dismiss a § 1983 claim that, if successful, would “necessarily imply the invalidity of [the plaintiff’s] conviction or sentence,” unless the plaintiff can demonstrate that the conviction or sentence “has already been invalidated.” In other words, if your are convicted of the underlying criminal charge, and the conviction remains valid, you can not bring a claim for violation of your civil rights under §1983 as it would contradict the validity of the conviction.

However, what happens to an individual’s potential civil rights claim if he does not plead guilty or is not convicted but instead  agrees to a lesser adjudication that does not amount to a conviction in a criminal proceeding.

All counties in Pennsylvania offer Accelerated Rehabilitative Disposition ”ARD”. ARD is a pre-trial diversion program whose primary purpose is the rehabilitation of the offender and whose secondary purpose is the prompt disposition of charges, eliminating the need for costly and time-consuming trials or other court proceedings. Essentially, if you are charged with relatively minor crimes of a non-violent nature, i.e. DUI, minor drug possession, disorderly conduct, and have no previous criminal record, you are offered the opportunity to enter into the ARD Program. The ARD program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program. if you are accepted into the ARD program your case is essentially stayed for a period of time. During the time, the court will impose certain requirements that you must complete within that time. If the requirements are completed by the end of the ARD period, the Court will then notify you that your case is eligible to be dismissed completely and erased from your criminal record.

Often individuals with potential § 1983 claims are faced with the decision of entering into the ARD program either because they may have some level responsibility or because it may be the least expensive way of dealing with the criminal charges. If given the choice of entering into the ARD program and having no criminal record upon completion or going through an expensive trial and taking a chance at being found guilty, many people will chose ARD regardless of guilt or innocence.

Previously, the Third Circuit interpreted Heck to require a § 1983 plaintiff to show the prior criminal proceeding terminated in his favor. Gilles v. Davis, 427 F.3d 197, 209 (3d Cir.2005). Applying that rule, Gilles held that Heck barred the § 1983 First Amendment claims of a plaintiff whose underlying criminal charge had been resolved through ARD, because the ARD program is not a favorable termination under Heck.

More recent decisions have question whether Gilles is still good law.

In Muhammad ex rel. J. S. vs. Abignton Tp, Police Dept., 37 F.Supp 3rd 746 (E.D. Pa, 2014), the U.S. District Court for the Eastern District of Pennsylvania questioned Gilles’ application of Heck.  First, the Court found that Heck itself did not require a § 1983 plaintiff to demonstrate a favorable termination of his underlying criminal proceedings. The U.S. District Court also cited the Supreme Court decision two years after Gilles in Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which clarified that Heck applies “only when there exists a conviction or sentence that has not been invalidated, that is to say, an outstanding criminal judgment” or an “extant conviction,” not an “anticipated future conviction.”  Heck does not bar suit when there is in existence no criminal conviction that the cause of action would impugn. A § 1983 plaintiff may bring suit while criminal proceedings are ongoing, before any conviction—or other disposition has occurred. Wallace thus eliminated any possible reading of Heck as requiring “favorable termination” of the underlying criminal proceedings, because it clarified that Heck does not require termination at all. Following Wallace, the Tenth and Eleventh Circuits have found Heck inapplicable where a plaintiff’s underlying criminal proceeding was resolved through a pre-trial diversion programs. See McClish v. Nugent, 483 F.3d 1231 (11th Cir.2007); Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir.2009).

The Third Circuit has yet to reconsidered Gilles in light of Wallace. However, the Muhammad Court found Gilles to be more limited than it first appears.  The Court found  that Gilles interpreted Heck to have held that “a § 1983 malicious prosecution claim was subject to the common law requirement that the plaintiff show the prior criminal proceeding terminated in his favor applied this requirement on the basis that the plaintiff’s § 1983 claim sounded in malicious prosecution:”  However, the favorable-termination requirement is not be relevant to all § 1983 claims.  The Court found that the reasoning and holding of Gilles appears limited to § 1983 claims that, like malicious prosecution, hinge on the plaintiff’s innocence of the criminal charge. Where the individual does not necessarily contest probable cause for his arrest (as is possible in § 1983 claims for selective prosecution or excessive force), the claims are not barred by the Gilles’ decision since Gilles did not consider those claims and, therefore, it’s reasoning does not apply.

The U.S District Court in Muhammad found that the U.S. Supreme Court clearly held that Heck bars only those claims that would invalidate an existing conviction, and as there was no conviction (juvenile entered into a consent decree), Gilles (to the extent it remains good law) was limited to § 1983 claims that contest probable cause for an underlying criminal charge.

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ARD 101

ARD means Accelerated Rehabilitative Disposition.

ARD is for first time non-violent offenders, or non-violent offenders, who have not committed any crimes in a decade or more, and with the latter it usually has to be a minor offense.

ARD is usually a one time chance for an alleged offender to pay fines, restitution if applicable, perform community service, and usually be on non-reporting probation. Once all conditions, requirements to complete ARD have been met, ones case is dismissed and then one can petition the court to expunge their record.  Wipe the slate clean so that one can pass a criminal background to get a job.

Unfortunately, there are no set guidelines in Pennsylvania regarding who is eligible for ARD.  ARD eligibility is determined by the District Attorney in each and every county of Pennsylvania, that’s right, there are different standards for ARD eligibility in each and every county.  ARD is also determined on a case-by-case basis.

However, the usual custom for most counties is for one to waive their preliminary hearing and speedy trial rights.  The Speedy Trial Rights are waived because District Attorneys are overwhelmed with a mountain of ARD applications and it takes a long time in some counties to make a determination.

If, one has a preliminary hearing than one will beyond a doubt not even be considered for ARD.  Although, some counties will still allow one to get ARD if one has a preliminary hearing as long as one has a very good reason to have one.  But, it would be a rare and a long shot to get ARD, if one had a preliminary.

Community service, fines, and cost associated with ARD are determined by the charge or charges and circumstances of the case.

ARD is not a conviction.  ARD simply holds ones charge or charges in limbo until ARD is successfully completed.

Once ARD is successfully completed one can petition the court to expunge their record.

One can go it alone, or the best way is to have an advocate on your side.

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DUI Courts – Proof second chances work & save the state money

I came across a recent article about the Blair county DUI court. This is something many of us in the criminal defense community have been arguing to get in every county for some time. Sure, many counties offer “ARD” or “IPP” or “STOP” programs, but those are primarily administered through the District Attorneys office of each county and usually have many restrictions that vary from county to county that can preclude a person from qualifying.  That in turn puts someone charged with a misdemeanor in the same place as someone charged with murder or rape.

Aside from the obvious benefits to the participants, these courts have proven to save a considerable amount of money versus sending someone to jail.  This needs to be at the forefront of the legislature.  The law differentiates between crimes – e.g. murder, rape, assault, DUI, etc., but all end up having the same punishment – jail.  We treat crimes differently, so it’s time to set up courts to handle the problems differently.

County DUI court a model for others
January 28, 2014
By Phil Ray (pray@altoonamirror.com) , The Altoona Mirror
HOLLIDAYSBURG – Montgomery County Judge Cheryl Austin is a Navy veteran, a former assistant district attorney and is in her third year on the bench.  “I’m always looking for a challenge,” she said last week when she led a group into the Blair County Courthouse and sat with Judge Daniel J. Milliron as he presided over the local DUI Court.  She called the experience “enlightening” and said she could understand how the court handling driving under the influence cases is “rewarding” for both the judge and the participants.  Judges Cheryl Austin and Daniel J. Milliron discuss DUI courts on Jan. 21. Austin said the local DUI court system is a great model for what she would like to see in Montgomery County.  For her, it was an opportunity to learn about Blair’s handling of repeat drunken driving offenders who, as Milliron said, have a “problem” with alcohol or drugs.  Austin’s latest challenge, she said, is to find a way to expedite the more than 2,500 DUIs that come through the Montgomery County Court of Common Pleas annually.  The DUIs comprise about 25 percent of Montgomery County’s criminal caseload, and, as Blair once experienced, the county’s judges are concerned about drivers who get arrested for additional DUIs while awaiting for the disposition of their first offense.  Those drivers, as Blair found out just a few years ago, are not only a hazard on the roads, but the results can sometimes be fatal.  Milliron and Blair County President Judge Jolene G. Kopriva decided to focus on the problem by separating the cases of those arrested for DUI from the rest of the criminal caseload and to speed up the disposition of the cases, offering a variety of alternatives to jail, like the DUI Court or the Intermediate Punishment Program.  Montgomery County is following the same path. As of Jan. 1, Austin is receiving all of the county’s DUI cases, and her task is to improve the system.  It was suggested Austin visit with Milliron because over the past nine years, he and Kopriva have put together one of the most successful DUI programs in the state, according to P. Karen Blackburn, the specialty court administrator for the Pennsylvania Supreme Court.  It used to take 16 months or more for a DUI case to move through the Blair court system. That time has dropped to three or four months, Millliron said.  His DUI Court has become popular because it focuses on the most serious cases in which the accused have been arrested three or four times with high rates of alcohol, and, in more recent years, drugs.  These defendants in the normal system face a year in a State Correctional Institution. The DUI Court is their last stop before going “upstate,” as it’s called.  All of those in Milliron’s court do some jail time but much less time than would be the norm, and after jail, they wear a Secure Continuous Remote Alcohol Monitoring (SCRAM) device that reports their location and alcohol content.  They also receive inpatient and outpatient treatment, from agencies like Pyramid Healthcare in the Altoona area.  The treatment program depends on the needs of the defendant as determined by a treatment team.  Art Heinz, a spokesman for the Pennsylvania Supreme Court, last year wrote an article in the newsletter of the Administrative Office of the Pennsylvania Courts discussing the Blair DUI Court.  “The wide-sweeping changes” in the way Blair handles DUIs has cut the average time between a DUI arrest and a plea from more than 16 months in 2006 to just three months in 2012, Heinz reported.  The number of those who have gone through the Milliron court is approaching 200. The participants go through three phases, each six months in length, and they must earn their way to the next phase.  In the first two phases, the individuals must appear before Milliron for a review every two weeks. When they graduate to Phase III, they must appear before him once a month.  Blackburn explained this past week that most DUI offenders have jobs, so it makes sense to treat them in the community and to keep them out of jail.  Putting them into a state correctional facility or the county prison is expensive, and a trip behind bars for a length of time can mean a loss of job and even a loss of family, which is exactly what Milliron does not want to see.  “I’m trying to change behavior,” Milliron said is his goal in an interview last week.  That’s the tough part – to convince an alcohol or drug abuser to “stay clean” and to get them to realize the responsibility they have to themselves and to others – he explained. “The responsibility of the DUI Court is not to look good or create statistics. The purpose is to make the roads safe and save lives,” Milliron said. A whirlwind of a court As Austin and Milliron took the bench in the county’s largest courtroom last week, it was cold and snowy outside, but inside the action was fast and intense. In a matter of less than an hour, Milliron called 24 participants before the bench, four panels of five and one panel of four persons. Some of the participants had done well the past couple of weeks and were given gift cards. Two men had done so well, they asked outright, “When do I go to Phase III?” Others had experienced relapse, which is part of trying to change behavior, Milliron explained. The holidays were a problem. It is a festive time – a time for some to celebrate in a way unacceptable in DUI Court. A tall, middle-aged man with gray hair was called forward by the judge. He was in an orange prison suit because he had relapsed. He tested “hot” for cocaine and alcohol, the judge was told. The judge used the case to emphasize a couple of points. The participant had not admitted that he relapsed, and Milliron said to him, “Truthfulness, accountability are the keys to the program.” He was in orange, the judge said, because he didn’t admit to what he did. The man fessed up, stating, “The cocaine, I take responsibility for.” The alcohol in his system, he believed, did not come from drinking but from cough medicine. As a sanction, Milliron delayed his graduation to Phase III, and he concluded, “You’ve got to quit hanging around the wrong people.” Then came a man wearing a sweatshirt that said, “Phillies.” He was a graduate of the DUI court who had relapsed. He was sent back to prison for two days and will now spend another 90 days in the program. He’ll be wearing a SCRAM device. He replied to the judge: “I deserve it. I’d rather learn now than end up where I was.” “The number of success stories is staggering,” Milliron said when interviewed. When someone graduates from the program, that person addresses others going through the process. Just two weeks ago, a woman told the other participants that entering the DUI program “was the most significant decision I ever made.” A male graduate said the program turned his life around. Milliron said a third graduate “looked like a different person.” That spirit of optimism was seen in others who stood before Milliron last week. A woman said she was beginning to think about graduate school. Another woman had done so well that Milliron said he would meet with her, prepare a resume with her and begin the process of helping her get her a job. For a young man named Brad, the day was not a good one. Milliron washed him out of the DUI program and sentenced him to 130 days in the county prison because, in the past 21 months, he relapsed five times despite outpatient treatment through Pyramid and inpatient treatment at a treatment facility in Eagleville, Centre County. According to the Blair County Parole and Probation Office, he “exhausted all resources available to him from the DUI Court program.” Milliron said the 26-year-old complained he only had one beer, but as the judge concluded, in his court, “One beer is a huge deal.” Despite the inmate’s failure to get through the DUI program, the judge insisted that he will stay in jail until he completes an in-prison drug and alcohol program. Moving forward Montgomery County Assistant District Attorney Bradford Richman, a former Philadelphia prosecutor, said four attorneys in his county are assigned to the DUI cases, and he said the new way to handle cases is just beginning. “Blair County is certainly a model,” he said. What type of program will be forged in Montgomery County remains to be seen. He said of the his view in Blair County, “It [the DUI Court] seems to be an excellent program driven by judges and other [very dedicated] people.” The next step will be to determine what parts may be workable in his county, which has a population of nearly 800,000 and a 23-judge court system, much larger than Blair’s five-judge system. Judge Austin said DUIs are a “major issue” in Montgomery County, and her first step will be to expedite cases. In the initial stages, her DUI Court will not focus on treatment. Milliron’s court receives grants from PennDOT, the Pennsylvania Commission on Crime and Delinquency and some federal funds, which help provide the treatment. Right now, Austin said, “I see it [DUIs] as a safety issue.” Milliron and Austin agreed that a key to Blair’s success has been the experience of the parole and probation officers and the employees of the Blair County Drug and Alcohol Program, a nonprofit agency that monitors the participants daily. Jennifer Ruffley, of the parole and probation department, has been with Blair’s program for eight years, and she simply said, “It works.” Yes, she said, there are relapses. “They are only human,” she said of the participants. Milliron, who has been a judge for 11 years, including nine as an elected judge, said his effort to have participants gain insight into themselves – “What motives behavior … The reason we do it [drink],” – takes a big part of his time as a judge. His program has a 3 percent recidivism rate or rearrest for DUI. He said, “Besides the people, it [the DUI Court] may be the only thing I miss when I’m gone.”

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OCCUPATIONAL LIMITED LICENSE (OLL) – What You Need to Know

Many people always ask when they have their driver’s license suspended if they can qualify for the Occupational Limited License (OLL), or more commonly called the bread and butter license since people use it to drive to and from work.
 
I pulled this fact sheet directly from PennDOT’s website in an effort to answer some common questions.
 
OCCUPATIONAL LIMITED LICENSE (OLL)

June 2013 FACT SHEET

Q: What is an Occupational Limited License?
A: An Occupational Limited License (OLL) is a limited driver’s license issued to a driver whose Pennsylvania driving privilege has been suspended. If your driving privilege has been revoked, disqualified, cancelled or recalled, you are not eligible for an OLL. If you have never been licensed by this or any other state, you are also ineligible to apply. An OLL authorizes driving a designated motor vehicle, under certain conditions, only when it is necessary for the driver’s occupation, work, trade, medical treatment or study.

Q: What types of suspensions are NOT eligible for an OLL?
A: If you are currently, or about to be suspended for any of these violations, you are not eligible for an OLL.

  • Passing a School Bus
  • Racing on Highways
  • Homicide by Vehicle
  • Fleeing a Police Officer
  • Driving Without Lights
  • Homicide by Vehicle/DUI
  • Reckless Driving
  • Accidents Involving Death or Injury
  • Accidents Involving Death or Injury while not properly licensed
  • Leaving Scene of an Accident Driving Under the Influence (possible exceptions see below)
  • Failure to Respond to a Citation
  • Driving while Suspended (possible exceptions see below)
  • Refusal to Submit to Chemical Testing (possible exceptions see below)
  • Unsatisfied Judgment as a result of a motor vehicle operation – (Unless judgment is satisfied or an agreement is made under 1772(b), 1774, or 1775)
  • Failure to Maintain Financial Responsibility

  • Removal or falsification of identification number

  • Dealing in vehicles with removed or falsified numbers
  • Dealing in titles and plates for stolen vehicles
  • Application for certificates of title or registration
  • Altered, forged or counterfeit documents and plates
  • Unsatisfied Judgment as a result of a motor vehicle operation – (Unless judgment is satisfied or an agreement is made under 1772(b), 1774, or 1775)

  • Failure to Maintain Financial Responsibility

  • Removal or falsification of identification number

  • Dealing in vehicles with removed or falsified numbers
  • Dealing in titles and plates for stolen vehicles
  • Application for certificates of title or registration
  • Altered, forged or counterfeit documents and plates

Q: Does a DUI violation qualify for an OLL?
A: A DUI conviction qualifies only if the violation is your first offense and given a one year suspension. However, the OLL cannot be issued until the 60 days have been served for the suspension of the DUI.

Q: Does a DUI violation which results in an 18 month suspension qualify for an OLL?

A: It qualifies only if you have no more than one prior DUI offense within the past ten years, have served 12 months of the 18 month suspension, have satisfied all restoration requirements and have the ignition interlock installed on your vehicle.

Q: Does a refusal to submit to chemical testing qualify for an OLL?

A: It qualifies only if it results in an 18 month suspension, have no more than one prior DUI offense within the past 10 years, have served 12 months of the 18 month suspension, have satisfied all restoration requirements and have the ignition interlock installed on your vehicle.

Q: Does an underage alcohol offense violation qualify for an OLL? A: You qualify only if the violation is your first offense.

Q: Does a driving while under suspension violation qualify for an OLL?
A: If your driving record shows that this suspension occurred only as a result of a prior indefinite suspension due to an unpaid citation or non-payment of a judgement, failure to attend a Departmental hearing or failure to undergo a Special Point Examination, you may be eligible. However, the OLL cannot be issued until three (3) months have been served for the suspension for driving while under suspension.

Q: Can a suspended CDL driver get an OLL?
A: Yes, you would be eligible for a non-commercial OLL only.

  • ARD Ordered Suspension for DUI
  • Controlled Substance, Drug, Device & Cosmetic Act Violations
  • Underage Alcohol Violations (possible exceptions see below)
  • Any Serious Traffic Offense (Chapter 37, Subchapter B)
  • Any Violations Relating to Accidents and Accident Reports (Chapter 37, Subchapter C)
  • Failure to take and pass a required examination

Q: What are the first things I must do in order to qualify?
A: If your suspension is in effect, you must surrender your driver’s license if you have not done so already. If your driver’s license has expired, you must submit an application for renewal, along with the appropriate fee. All fines, costs and restoration fees must be paid at the time of petition.

Q: Will I have enough time to apply and receive the OLL prior to my suspension date?
A: If the DL-15 form is received and approved prior to the effective date of your suspension, one of two things will happen:

  1. If the effective date of suspension is less than 15 days from the process date, the Department will delay the start of your suspension for 15 days and issue an interim license;

  2. If the effective date is greater than 15 days from the process date, the Department will not delay the suspension but will issue an interim license. The interim license provides you with a continuous driving privilege while the surrender of your regular driver’s license is used for the processing of your OLL.

    Note: Credit toward your suspension will begin upon the new effective date or after, if you delay in submitting your license to the Department.

Q: What is the cost?
A: A fee for applying for an OLL is $50.00 and is non-refundable.

Q: After I apply, what happens next?
A: Within 20 days of receiving your petition, the Department will inform you in writing whether or not you qualify for an OLL. If you qualify, you will receive an OLL camera card to obtain a photo OLL. You are to carry your photo OLL and DL-15A together at all times.

Q: When does my OLL expire?
A: The OLL is valid for the length of your suspension term. After your driving privilege has been restored, the Department will return your valid regular driver’s license.

Q: Can the OLL be extended?
A: Maybe, if you are given a suspension due to the result of a Departmental Hearing or if you were convicted of a point related violation which resulted in an “add on” suspension. The Department will notify you and send you the application to extend your OLL. (DL-31OLL)

Q: What happens if I commit a violation while driving on an OLL or if a violation is placed on your record after receiving the OLL?

A: If you are convicted of an offense for which the penalty is a cancellation, disqualification, recall, suspension, or revocation of your driving privilege, the Department will recall your OLL and you must surrender the OLL to the Department.

Q: Can I apply for any permit after my OLL has been issued to me?
A: No, you may apply for any permit upon restoration of your regular driving privileges.

Q: Can I get another OLL if I am suspended again?
A: You may be issued only one (1) OLL every five (5) years.

Q: Can I take any action in the event that my OLL is recalled or my request is denied?
A: Yes. You may file with the Department a petition for an Administrative Hearing accompanied by a non-refundable processing fee of $100.00. Additional information regarding this filing process will be provided upon request. “Hardship or extraordinary medical circumstances DO NOT qualify you to receive an OLL.”

Q: Where do I write to get further information about an OLL or get a petition (Form DL-15)? A: You may write to the following address:

PA Department of Transportation Bureau of Driver Licensing OLL/PL Unit
P.O. Box 68689

Harrisburg, PA 17106-8689

or visit the Driver Vehicle Services website at http://www.dmv.state.pa.us.

Note: You may submit one check or money order for all required fees made payable to: PennDOT

This Fact Sheet is for information purposes only and not a complete resource, all users of this Fact Sheet are advised to consult the Vehicle Code at Section 1553, 75 Pa. C.S. 1553, relating to Occupational Limited License.

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