You should answer "no" to both questions. ARD is not a conviction, guilty plea or nolo plea. And the ARD neither means you are presently under indictment nor currently a defendant in any criminal proceeding. That question refers to pending charges, and the DUI is not a pending charge.
I would further advise you to seek the expungement of the offense from your criminal history once you successfully complete ARD.
Michelle A. Fioravanti, Esq.
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First off let me note that this is the first time I can recall coming to a different conclusion than Attorney Fioravanti. I actually think that the truthful answer to both questions is Yes. My conclusion in that regard is firmest with respect to question 2. Your current participation on ARD qualifies you as "a defendant in [a] criminal proceeding." If you failed to complete your ARD for any reason and your participation was revoked, your case would continue on from the point immediately before you accepted ARD. You would not be charged again, your case would simply proceed to a different conclusion. I also think the ARD suggests a Yes to question 1 because it is a form of deferred adjudication. In any event here's the real problem that comes up in my practice again and again. If you simply answer NO to both then you will have the following two concerns. That you were arrested for a DUI is currently information available through a criminal records check with the Pennsylvania State Police and will continue to be available until such time, if ever, the records are expunged following successful completion of ARD. It may happen as a matter of course without you having to affirmatively petition for that (something you should check with your attorney), but it will not happen instantaneously. You still have three more months of supervision. Even after the State Police database is purged of information on your arrest, the FBI's records (NCIC) will continue to reflect your DUI arrest. They do not expunge arrest records. Period. So, here's the real problem with answers in the negative. If your employer now, or at some later time, has a criminal history check done, especially if it draws upon NCIC, your employer is likely to conclude that you were less than truthful when you answered the questions. My advice is to be truthful and reveal it in the best possible light; otherwise I think you'll be looking behind you for a long time. Good luck.
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