Section 17 Probation vs. ARD in Pennsylvania for First Time Offenders

When a person has no prior criminal record and then gets charged with a possessory drug offense, there are usually two options that they should consider as a way to resolve the case: Probation without verdict (aka Section 17) and ARD (accelerated rehabilitative disposition). Both of these programs are designed for first-time offenders as a way to resolve cases without a resultant conviction or criminal record. In both circumstances, defendants have the opportunity to have their records expunged upon successful completion of the program. However, failure to complete the program, or a violation of the program’s rules, will result in criminal charges against the defendant. These charges will not be expunged and will be reflected on the defendant’s record. Read on to learn about the differences between Section 17 and ARD and which one is best for your case.

Pennsylvania’s Section 17 Probation for First Time Offenders

Section 17, although authorized by the Pennsylvania statutes at 35 P.S. Sec 780-117, is a probationary program that is not offered in all counties in Pennsylvania and has different components depending on the county where you are charged. When a defendant (the person charged with a crime) enters a plea under the Section 17 statute, they are in fact pleading guilty to the crime, but the verdict or conviction is being held in abeyance for the period of time that they are on probation. When a plea is held in abeyance, it is not made official or given any effect until later. If they successfully complete the probation, which can be reporting or non-reporting, they will have the Section 17 drug charges dismissed and be eligible for expungement. However, if they are unable to complete the probationary program without obtaining new charges, they will be sentenced in accordance with their plea and have a criminal record.

Section 17 has advantages as well as disadvantages. The benefit of Section 17 is that you can end up with your record expunged so that you will have a clean criminal record. The downside is that if you fail to satisfy all the requirements of Section 17, you will automatically be guilty of the charges against you because you already pled guilty. It is crucial that, once you begin Section 17, you fulfill all the conditions required of you by the court. Different counties will have different rules and requirements, so it is also important that you speak with an attorney who can help you understand your county’s requirements.

Who is Eligible for Section 17 in Pennsylvania?

Defendants eligible for Section 17 in Pennsylvania are typically first-time offenders who have committed a relatively minor drug offense. The offense must be a non-violent one and the defendant must show they are drug dependent. Drug dependency can be demonstrated through the testimony of a medical or psychiatric physician.

Anyone who fits this description may be eligible for Section 17 in Pennsylvania at the discretion of the court. However, a defendant who meets any of these specific criteria will be considered ineligible and may not participate in Section 17:

• Having gone through Section 17 previously
• Having a misdemeanor or felony conviction in any state
• Being placed on ARD
• You have pled guilty or no-contest to multiple offenses based on different conduct from different crimes such that they could be tried separately under 18 Pa.C.S. § 110
• You are a dangerous juvenile offender
• You are charged with violating a certain clause of the Controlled Substance, Drug, Device and Cosmetic Act.

If you think you might be eligible, or if you are not sure, contact an experienced attorney at Young, Marr, Mallis & Associates. One of our Philadelphia drug paraphernalia possession lawyers will help you determine in Section 17 is a viable option for you.

When is Section 17 Probation Used in Pennsylvania?

For example, suppose a person is sitting in his vehicle at a park after the park is closed. A police officer is on routine patrol and decides to drive through the park as part of his nightly duties. As he pulls into the park, the person sees the police car and starts to pull away. The person was going to smoke marijuana in his car at the park, but never got the opportunity because the police officer pulled in and he didn’t want to get caught so he tried to pull out of the park. As the person is pulling away, the officer puts his overhead lights on and performs a traffic stop. He immediately says he smells the odor of unburnt or raw marijuana and asks to search the car. The person consents to the search, because the officer explains that the law in Pennsylvania allows him to search the car upon detecting the odor of marijuana.

During the search, the officer finds a smoking device, grinder, and a baggie with a couple of grams of marijuana. The officer questions the person about whether he has smoked recently, to determine if he should have the person perform field sobriety tests to charge a DUI. The person denies any recent use, there is no odor of burnt marijuana, the person appears fine, so there is no further investigation for DUI and the police officer simply charges possession of a small amount of marijuana and possession of drug paraphernalia for the grinder and pipe.

Now, after receiving the charges in the mail, the person (defendant) must decide whether he should fight the case by requesting a trial, or take advantage of either the Section 17 or ARD program to resolve his case. In any county he can request a trial, which would then make him ineligible for any of the programs. However, if he wants to ensure that he will resolve the charges without any criminal record he must use one of the programs in accordance with the rules of that individual county.

Section 17 in Different Counties

If he is in Montgomery County, he must do a Section 17 because they do not offer ARD for possessory drug offenses. In Bucks County he can decide which program makes the most sense for his specific situation. In Chester County, a Section 17 is not offered, and they do not use ARD for these types of drug offenses either. Generally, a defendant in Chester will resolve the case at the preliminary hearing with community service and a reduction from a misdemeanor drug offense to a non-traffic citation of disorderly conduct. If not, the person trying to keep a clean record will be forced to apply for the much more intensive “drug court program” as the only way to attempt to refrain from having a criminal record. In both Lehigh and Northampton Counties, the Section 17 program is not offered, so the defendant will be forced to use the ARD program if he wants to ensure he will stay conviction free.

Pennsylvania’s ARD Program

Pennsylvania’s ARD program is designed to identify defendants who may be responsive to drug treatment and rehabilitation. The cases of these defendants are diverted from the criminal justice system. This system allows defendants to avoid a trial and saves the time, money, and effort of the state.

Being placed in the program does not happen automatically. Defendants who want to participate in the ARD program must make a request to do so. This can be done by filing a petition to the District Attorney’s Office of the county your case is in prior to your preliminary hearing. Anyone involved in your case, such as police or victims, may comment on your application. Once you have been approved, you are placed on probation and must complete community service among other conditions. Once you have completed ARD, you can then petition the court to expunge your record.

ARD can be used for any misdemeanor, non-violent offense, and is therefore often used for possessory drug offenses. In contrast to Section 17, when a defendant is placed on ARD, they do not plead guilty prior to their probationary program. Thus, if they get charged with a new offense while they are on their ARD probation, they can go to trial on the original charge or plead guilty; the choice is preserved since a plea was never entered. However, in some cases, if there is a choice, it is better to use a Section 17 for an initial drug case because it may be possible to use an ARD for a subsequent drug case, however it does not work in the reverse order.

The Difference Between Section 17 and ARD in Pennsylvania

The requirements of the programs vary; however, both will result in either automatic expungement or expungement eligibility upon successful completion. One important factor is that in most counties, the defendant is required to appear but waive their preliminary hearing (cannot contest the charges even at the initial hearing level). Specific program requirements vary but, generally Section 17 requires a letter from a doctor stating the defendant has been evaluated for abuse of the drug in question and is drug dependent. (These letters are not difficult to get and are not always required). In some cases, that may mean the person has to engage in drug treatment in order to complete the program. However, in most cases a Section 17 is simply non-reporting probation for anywhere from a minimum of 30 days to a maximum of one year.

ARD does not require a letter, but there is usually a requirement for a number of community service hours ranging from 10 to 24 hours, depending on the county involved. ARD may be reporting or non-reporting, and the non-reporting is usually just a once-a-month check-in requirement by phone or internet. Both programs require the payment of all court costs in order to complete the program and have the charges dismissed. Some counties require all costs to be paid up front, and others let the defendant pay the costs over the course of the probationary period. The costs generally range from $1100.00 to $2000.00 depending on the program and the county. There are no fines associated with either program, but obviously the costs are high and are meant to be prohibitive.

One of the interesting facts to consider is that even though ARD and Section 17 are meant to be, “one bite at the apple” programs, there are circumstances whereby an individual can get, “an additional bite at the apple”. An experienced attorney will know if that is a possibility based on the facts and the location of the case.

Which Program is Better in Pennsylvania?

Each program, ARD and Section 17 probation, have their pros and cons. If you live in a county where both options are available, you will need to discuss with an attorney whether you meet the eligibility requirements for either program. If you are eligible, you will have to make a decision based on the circumstances of your case.

For Section 17 probation, you will initially plead guilty to the charges against you. However, your guilty plea is held in abeyance while you complete the Section 17 program. If you complete the program successfully, your record is expunged. If you fail to complete the program, you must serve the penalty for the charges to which you have already pled guilty.

ARD is similar to Section 17; however, you do not have to plead guilty. This may seem like a more appealing option because if you fail to complete the program, you may still have the opportunity to have your case heard at trial. However, once you’ve gone through ARD, you cannot go through ARD or Section 17 on subsequent drug charges.

To fully weigh each program’s pros and cons, speak with a qualified and experienced criminal defense attorney at Young, Marr, Mallis & Associates.

Our Pennsylvania Drug Possession Defense Lawyers Can Help

Someone charged with a possessory drug offense should speak to an experienced criminal defense attorney who practices in the appropriate county in order to get the best outcome for their case. A Northampton County DUI defense attorney will help you determine if you are eligible for ARD or Section 17 and if it is a good option for you. They will also help you make your application for the program and figure out the steps necessary to have your record expunged.

Were you charged with drug possession in Pennsylvania with or without a prior criminal record? Our experienced and dedicated Philadelphia drug possession lawyers can help. For a free consultation with an experienced criminal defense attorney at Young, Marr, Mallis & Associates, call our Pennsylvania office today at (215) 372-8667.