The Act 58 Era: Why Your Prior ARD Is Now a Separate Charge, Not a Second Offense, in Monroe County

Effective December 22, 2025, Pennsylvania’s Act 58 created the separate crime of “driving under the influence of alcohol or controlled substance following diversion,” 75 Pa.C.S. § 3802(h). It did not overrule Commonwealth v. Shifflett, which bars using a prior Accelerated Rehabilitative Disposition (ARD) to raise a DUI mandatory minimum. A new DUI in Monroe County within 10 years of completing ARD must now be charged and proven as its own offense — and under Ferguson v. Department of Transportation, the ARD still counts on the civil license side.

Driving under the influence (DUI) charges carry steep penalties in Pennsylvania—and consequences of a DUI increase for repeat offenders. However, until late last year, DUI defendants who entered into (and successfully completed) an Accelerated Rehabilitative Disposition (ARD) program were not treated as repeat offenders if they got a second DUI.

ARD provides an opportunity for eligible first-time offenders to avoid the life-altering consequences of having a DUI conviction on their record. Since Shifflett, a completed ARD can no longer be used to raise the mandatory minimum sentence on a later DUI, and that is still the law. What changed is the charge: the Pennsylvania legislature passed Act 58 in December 2025 and made reoffending after diversion a separate crime.

Act 58: The Legislature’s Answer to Shifflett — a New Offense, Not a Revived Enhancement

The Pennsylvania legislature enacted Act 58 in response to the Pennsylvania Supreme Court’s decision in Commonwealth v. Shifflett, No. 26 MAP 2024 (Pa. May 30, 2025). On May 30, 2025, the Court held 75 Pa.C.S. § 3806 facially unconstitutional to the extent it allowed a prior ARD to raise the mandatory minimum sentence on a later DUI. The Court’s decision was based, in part, on the nature of ARD. Since first-time DUI defendants must decide whether to pursue ARD before trial, this means that they are not afforded the constitutional protections of trial—including the requirement that prosecutors prove their guilt beyond a reasonable doubt.

Despite the Court’s reasoning, victims’ advocates and others argued that the Court’s decision in Shifflett effectively created a “loophole” for repeat offenders who were eligible for (and chose to participate in) ARD. In response, the Pennsylvania legislature passed Act 58. Critically, Act 58 did not try to revive ARD as a sentencing enhancement — Shifflett had foreclosed that. It created a brand-new offense instead, and Shifflett remains good law.

Act 58’s New Offense: “DUI Following Diversion” (75 Pa.C.S. § 3802(h))

Act 58 creates the new offense of “driving under the influence of alcohol or controlled substance following diversion,” 75 Pa.C.S. § 3802(h). It is a separate substantive offense, not a sentencing enhancement: it makes it a crime to drive in violation of § 3802(a), (b), (c), (d), (e) or (f) within 10 years after completing an ARD program — or a substantially similar out-of-state diversion program — for a DUI. The Commonwealth has to charge it from the outset and prove both the new DUI and the prior ARD completion beyond a reasonable doubt, to a judge or a jury.

Act 58 set the grading at 75 Pa.C.S. § 3803(c):

• If the underlying new offense is under § 3802(a), (b), (e) or (f) — general impairment, high rate, minors, or commercial and school vehicles — the offense is a misdemeanor punishable by up to six months.
• If the underlying new offense is under § 3802(c) (highest rate) or § 3802(d) (controlled substances), or is a § 3802(a)(1) charge where chemical testing was refused despite a valid warrant, court order or other constitutional basis, it is a misdemeanor of the first degree — which carries a statutory maximum of five years (18 Pa.C.S. § 1104).

The mandatory minimums attached to a § 3802(h) conviction track the repeat-offense numbers rather than the first-offense ones. The exposure that Shifflett removed from the sentencing side came back on the charging side — but only if the Commonwealth charges the diversion offense and carries its burden of proof. That burden is where the defense work now lives.

Mandatory Minimums in Monroe County DUI Cases

A prior ARD cannot raise the mandatory minimum on an ordinary DUI charge — that is what Shifflett decided, and Act 58 did not change it. What Act 58 changed is the charge. A conviction under § 3802(h) carries the repeat-offense mandatory minimums rather than the first-offense ones, and those figures are as follows:

General Impairment

Second Offense (First DUI After Diversion)

• Five days in jail
• A $300 fine (up to a $2,500 fine)
• Mandatory alcohol highway safety school
• Mandatory drug and alcohol treatment

Third or Subsequent Offense (Second or Subsequent DUI After Diversion)

• Ten days in jail
• A $500 fine (up to a $5,000 fine)
• Mandatory drug and alcohol treatment

High Rate of Blood Alcohol, Zero Tolerance, and Commercial DUIs

Second Offense (First DUI After Diversion)

• Thirty days in jail
• A $750 fine (up to a $5,000 fine)
• Mandatory alcohol highway safety school
• Mandatory drug and alcohol treatment

Third Offense (Second or Subsequent DUI After Diversion)

• Ninety days in jail
• A $1,500 fine (up to a $10,000 fine)
• Mandatory drug and alcohol treatment

Fourth or Subsequent Offense (Third or Subsequent DUI After Diversion)

• One year in jail
• A $1,500 fine (up to a $10,000 fine)
• Mandatory drug and alcohol treatment

Highest Rate of Blood Alcohol

Second Offense (First DUI After Diversion)

• Ninety days in jail
• A $1,500 fine
• Mandatory alcohol highway safety school
• Mandatory drug and alcohol treatment

Third or Subsequent Offense (Second or Subsequent DUI After Diversion)

• One year in jail
• A $2,500 fine
• Mandatory drug and alcohol treatment

These are in addition to the other consequences of a DUI conviction. These can include a driver’s license suspension and mandatory ignition interlock device (IID) installation, as well as academic, professional, military, and immigration consequences. On the license side, nothing changed at all. In Ferguson v. Department of Transportation, 73 MAP 2022 (Pa. July 22, 2025), the Pennsylvania Supreme Court held that a civil driver’s license suspension is not criminal punishment, so PennDOT may keep counting a prior ARD when it computes suspension length and ignition interlock eligibility. No one should tell you an old ARD “doesn’t count anymore” — on the license track it never stopped counting.

Using Certified Records for Sentencing in Monroe County DUI Cases

Act 58 also establishes new recordkeeping requirements for DUI defendants’ successful completion of ARD. Specifically, Act 58 provides:

“Upon a defendant’s successful completion of [ARD], the court shall issue an order evidencing the completion. . . . Notwithstanding any order of expungement, the clerk of courts shall retain a certified copy of the court order evidencing a defendant has successfully completed the program . . . . The order shall be maintained for 12 years following the date of the entry . . . [and the] clerk of courts shall provide a certified copy of the order to any prosecuting attorney, court or law enforcement agency upon request.”

This ensures that, going forward, prosecutors will be able to easily determine whether a DUI defendant has completed ARD. If you are facing a second or subsequent DUI and you have completed ARD in the past, we invite you to contact us for more information.

Discuss Your Case with an Experienced Monroe County DUI Lawyer in Confidence

If you need to know more about Pennsylvania’s Act 58—or any other aspect of facing a DUI charge after ARD in Pennsylvania—we encourage you to contact us promptly. Attorney Brian C. Jordan also covers this ground on his Monroe County DUI and DWI defense page. To schedule a confidential consultation with an experienced Monroe County DUI lawyer as soon as possible, call us at 570-421-5568 or contact us online now.

Related: Does ARD Count as a Prior DUI in Pennsylvania? The Answer Changed Three Times in 2025