Pennsylvania Man Given Permission to Enter ARD Program, Despite Being Convicted of a Prior Felony Which was Expunged

A recent Pennsylvania Superior Court decision upheld a ruling by the Court of Common Please, York County, allowing a defendant with a prior felony conviction to enter an Accelerated Rehabilitative Disposition (ARD) Program; following his arrest for Driving Under the Influence. Brian Fleming was arrested and charged with two counts of Driving Under the Influence and a summary traffic offense in March of 2007. He applied for acceptance into the ARD program, which is a program for first-time offenders who would like to avoid the lengthy process of a trial and accept some alternate consequences. On the application for ARD, one of the questions asks whether the defendant has a record of any crime committed, juvenile or adult, which would result in the application being rejected. Fleming answered the question honestly, stating that he had a prior felony drug conviction in the state of Maryland in 1998, which was immediately expunged from his criminal record.

Upon conducting a criminal background search of Fleming, the Commonwealth discovered the felony conviction on his record. Fleming was therefore rejected as a candidate for ARD. Fleming, who truthfully believed the conviction had been expunged, immediately contacted Maryland authorities who issued an immediate order to expunge his record. He then appealed the rejection of his ARD application, and the Court of Common Pleas, York County, ordered his acceptance into the program; to which the Commonwealth promptly appealed to the Superior Court.

The Superior Court determined that Fleming answered the question on his ARD application truthfully, and based on the resulting facts, ruled that the felony conviction should have been expunged at the time he applied for ARD; the order was issued as soon as Fleming discovered it had not already been expunged, as he believed. The Court took into consideration Maryland State law regarding expunction and determined that the expunged conviction was a “prohibited consideration” for the district attorney in rejecting Fleming’s application. The Court ruled that the district attorney’s office may keep a list of people who have participated in an ARD program, for the purpose of ensuring that a defendant can not enter the program more than once; however a prosecutor may not consider a defendant as a recidivist offender when the previous conviction has been expunged.

Expunction

Expunction is the process of obtaining a court order which directs law enforcement agencies to destroy criminal records. There are certain criteria which must be met in order to do so. An experienced criminal defense attorney understands the process of expunction and will take the steps necessary to help clear your record.

If you have been arrested and you would like the arrest information expunged from your criminal record, or if you are currently charged with an offense, it is imperative that you contact an experienced criminal defense attorney immediately. For a confidential consultation, and to determine the best course of action for your situation, contact our office via phone at (215) 563-9800, or via e-mail at Marc@nefflawoffices.com.