The first time a defendant gets to test the evidence that the Commonwealth has against them in a criminal case in Pennsylvania is at what is called a “preliminary hearing”. At this hearing, the Commonwealth must prove that the chances are more “probable that not” that the defendant has committed the crime he has been charged with. If they cannot meet this threshold the case is dismissed. Very often a lawyer will counsel his client to “waive” their preliminary hearing in exchange for the police’s “giving” them something – like dropping the amount of the client’s bail or withdrawing some of the charges in the criminal complaint. In the DUI setting, it used to be that the defendant could waive his preliminary hearing and the cop would, in turn, drop a third tier DUI down to a second, or a second down to a general impairment DUI. This would often be a great service for the client who was under the belief that they were headed off to ARD because the “lowering of the tier” would result in less drivers license suspension time than they would have otherwise have gotten had the cop just left the old DUI level alone. Not so anymore.
In my years as a Montgomery County dui lawyer, I have seen many policies implemented, and then reimplemented, by the Montgomery County DA’s office regarding ARD. Plainly speaking – its always in flux. But, for what its worth, here is the latest: When a district attorney has a case assigned to them where the tier for the DUI was “adjusted” in exchange for a waiver of the preliminary hearing at the district court, the DA will simply “add back” the original charge to the criminal information for purposes of prosecution at the Common Pleas level. For this reason, the scenario in the opening paragraph rarely works anymore. This does a few things:
- It effectively negates the agreement arrived at between the defendant and the police at the district court level;
- It deprives the defendant of his preliminary hearing;
- It could expose the defendant to more jail time if he is not ARD eligible; and
- When the client is eligible for ARD, the client may suffer a loss of his driving privileges because of the bringing back of charges the client thought he was rid of.
Is it fair? No. Is it policy? For the most part. The moral of the story: A defendant may waive his preliminary hearing in exchange for a police officer dropping the level of his DUI. Just don’t expect the DA’s office to honor it when it gets to Norristown. For this reason….why do it at all? For any questions regarding Montgomery County ARD, or anything DUI for that matter, feel free to contact my office anytime at (610) 239-8870.