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 can now be charged as its own offense, and a conviction requires proof of both the new DUI and the ARD completion — while on the license side, Act 58 itself makes an ARD completed within the prior 10 years relevant to the ignition-interlock rules.

Driving under the influence (DUI) charges carry steep penalties in Pennsylvania—and consequences of a DUI increase for repeat offenders. However, for part of 2025, from the Pennsylvania Supreme Court’s decision in Commonwealth v. Shifflett on May 30, 2025 until Act 58 took effect on December 22, 2025, a completed Accelerated Rehabilitative Disposition (ARD) could not be used to sentence a defendant as a repeat offender on a later DUI.

ARD, which the district attorney may grant or deny at his or her discretion, 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, critics of the decision 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. To convict under it, the Commonwealth must charge this separate offense and prove both the new DUI and the prior ARD completion beyond a reasonable doubt to the factfinder (whether a jury trial is available depends on how the offense is graded).

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.

Pennsylvania Mandatory Minimums in DUI-Following-Diversion 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 (No Accident Causing Injury or Damage)

First DUI Following Diversion

• At least five days in jail
• A fine of $300 to $2,500
• Mandatory alcohol highway safety school
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

Second or Later Offense After a DUI-Following-Diversion Conviction

• At least ten days in jail
• A fine of $500 to $5,000
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

High Rate of Blood Alcohol, Zero Tolerance, Commercial DUIs, and General-Impairment DUIs Involving an Accident

First DUI Following Diversion

• At least thirty days in jail
• A fine of $750 to $5,000
• Mandatory alcohol highway safety school
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

Second Offense After a DUI-Following-Diversion Conviction

• At least ninety days in jail
• A fine of $1,500 to $10,000
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

Third or Later Offense After a DUI-Following-Diversion Conviction

• At least one year in jail
• A fine of $1,500 to $10,000
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

Highest Rate of Blood Alcohol, Controlled Substances, and Refusal of a Breath Test or Warrant-Based Blood Test

First DUI Following Diversion

• At least ninety days in jail
• A fine of at least $1,500
• Mandatory alcohol highway safety school
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

Second or Later Offense After a DUI-Following-Diversion Conviction

• At least one year in jail
• A fine of at least $2,500
• Compliance with all drug and alcohol treatment requirements imposed under §§ 3814 and 3815

These are mandatory minimums (75 Pa.C.S. § 3804), not the maximum exposure. The maximum depends on how the offense is graded: a misdemeanor of the first degree carries up to five years (18 Pa.C.S. § 1104), and a later offense in the highest tier can be graded as a felony of the third degree (up to seven years) or of the second degree (up to ten years) (75 Pa.C.S. § 3803(b)(4.1); 18 Pa.C.S. § 1103). The lists are not exhaustive: other facts change the penalty, including a minor under 18 in the vehicle, which for a first § 3802(h) offense adds a fine of at least $2,500 and one to six months’ imprisonment (75 Pa.C.S. §§ 3803(b)(5), 3804(c.1)), and a sentence for a person with two or more prior offenses, or one prior § 3802(h)(1) offense, must generally be served consecutively to any other sentence (§ 3804(c.2)).

These are in addition to the other consequences of a DUI conviction. These can include a driver’s license suspension and ignition interlock requirements. The license side has its own rules. 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 could count a prior ARD under the law that applied before Act 58. Act 58 then removed ARD acceptance from the definition of a “prior offense” in 75 Pa.C.S. § 3806(a) and wrote ARD into the license rules directly: a § 3802(h) conviction carries a 12- or 18-month suspension depending on how it is graded (§ 3804(e)), and an ARD completed within the prior 10 years affects the ignition-interlock exception and eligibility for an ignition interlock limited license (§§ 3805(a.1), 1556(f)). No one should tell you that an ARD completed within the past 10 years “doesn’t count anymore” — on the license track it still matters.

How the ARD-Completion Record Is Kept for Future Prosecutions

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.”

The retained order is not a public record: the statute says it is not subject to public inspection or duplication, may be used solely for future prosecutions under § 3802(h), and is itself expunged 12 years after it is entered. It does not undo an ordinary expungement of the ARD case, but it does let prosecutors confirm whether a DUI defendant 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.

At our firm, partner Brian C. Jordan concentrates his practice on criminal defense and DUI matters and handles them as part of the firm through his own practice. His site covers DUI charges, ARD and the license consequences of a DUI in more detail: Brian C. Jordan, DUI lawyer in Monroe County, PA.

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. 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

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Pennsylvania law changes and every case turns on its specific facts. Consult a licensed Pennsylvania attorney about your situation.