Opinion
Cr. A. No. 1502004036
02-22-2016
STATE OF DELAWARE v. CURTIS J. BROWN, Defendant.
Matthew C. Bloom, Esquire Deputy Attorney General Department of Justice 820 N. French Street, 7th Floor Wilmington, DE 19801 Attorney for the State of Delaware Albert M. Greto, Esquire 715 N. Tatnall Street P.O. Box 756 Wilmington, DE 19899 Attorney for Defendant
Matthew C. Bloom, Esquire
Deputy Attorney General
Department of Justice
820 N. French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware Albert M. Greto, Esquire
715 N. Tatnall Street
P.O. Box 756
Wilmington, DE 19899
Attorney for Defendant MEMORANDUM OPINION AND ORDER ON THE STATE'S APPLICATION TO SENTENCE DEFENDANT AS A SECOND OFFENDER
Before the Court is the State's Application to Sentence Curtis J. Brown ("Defendant") as a Second Offender. On February 7, 2015, Defendant was arrested and subsequently charged with Driving Under the Influence, in violation of 21 Del. C. § 4177 (the "Delaware DUI Statute"), and other driving-related offenses. On July 8, 2015, the Court held trial and found Defendant guilty. The Court postponed sentencing so the State could obtain Defendant's Pennsylvania Certified Driving Record.
On October 27, 2015, the Court heard oral argument on the instant motion. At that time, the State provided the Court with copies of Commonwealth v. Curtis Brown, No. 11-416, Ct. Com. Pl. Accelerated Rehabilitative Disposition (ARD) Program, dated April 18, 2012. Following oral argument, the Court ordered briefing on the limited issue of whether Defendant's participation in the ARD Program constituted the following application as to a Second Offense violation pursuant to 21 Del. C. § 4177B(e)(1)(d).
The parties stipulated that subparagraphs (a), (b), and (c) of 21 Del. C. § 4177B were not at issue in order for the Court to determine Defendant's Second Offender status qualification. The Court therefore outlined the following issue in its briefing schedule: "At issue . . . for which the Court shall now issue a brief schedule is the application of 21 Del. C. § 4177B(e)(1)(d) and specifically whether Brown's A.R.D. papers provided to the Court constitute the following application as to a second offense violation [quoting § 4177B(e)(1)(d) in its entirety]. Counsel is requested to provide all applicable Delaware case law, rules of statutory construction, and/or Title 21 Superior Court or Common Pleas adjudications which interpret or assist the Court [in] interpreting Brown's A.R.D. papers and whether this matter should be treated as a second offense of 21 Del. C. § 4177(a)." Letter from John K. Welch, Judge, Delaware Court of Common Pleas, to Renee Leverette, Deputy Attorney General, Department of Justice, and William J.P. Mulgrew, III, Defense Counsel, and Alberto M. Greto, Defense Counsel (Nov. 3, 2015) (on file with the Court of Common Pleas).
On November 30, 2015, the State submitted its Opening Brief, and argued that the Pennsylvania DUI Statute and Pennsylvania's ARD Program are similar to the Delaware DUI Statute and Delaware's DUI First Offender Program ("DUI-FOP"). Defendant filed an Answering Brief on December 27, 2015, arguing that the specific provision of Pennsylvania's DUI Statute that governs its ARD Program is dissimilar to the equivalent provision in the Delaware DUI Statute that governs Delaware's DUI-FOP. On January 12, 2016, the State submitted its Reply Brief, and argued that the specific sections of the statutes governing the ARD Program and the DUI-FOP are similar. This is the Court's Final Decision and Memorandum Opinion and Order after diligently reviewing the parties' submissions and applicable Delaware law.
Moreover, despite the Court's clear instruction set forth in its briefing schedule, Defendant's counsel also raised a multitude of factual and legal issues that are not presently before the Court, and therefore, the Court
I. Facts
On November 20, 2010, Defendant was arrested and charged with driving under the influence, in violation of Pennsylvania's Driving Under the Influence Statute, codified as 75 Pa. Cons. Stat. § 3802 (the "Pennsylvania DUI Statute"), and other related charges, in Delaware County, Pennsylvania.
On April 25, 2011, Defendant enrolled into the Delaware County ARD Program pursuant to 75 Pa. Cons. Stat. § 3807, and completed the program successfully.
On February 7, 2015, Defendant was arrested and subsequently charged with Driving Under the Influence in New Castle County, Delaware. On July 8, 2015, the Court held trial and found Defendant guilty.
II. The Law
Section 4177B(e)(1) of Title 21 of the Delaware Code defines "prior or previous conviction or offense" as:
A conditional adjudication of guilt, any court order, or any agreement sanctioned by a court requiring or permitting a person to apply for, enroll in or otherwise accept first offender treatment or any other diversionary program under this section or a similar statute of any state, local jurisdiction, any federal or military reservation or the District of Columbia.When a statute is clear and unambiguous, the Court must hold the statute to its plain meaning. Moreover, "a statute's unambiguous language may not be interpreted to conflict with its plain meaning."
21 Del. C. § 4177B(e)(1)(d) (emphasis added).
State v. Thoroughgood, 2009 WL 350802, at*2 (Del. Com. Pl. Jan. 21, 2009) (citing Matter of Estate of Smith, 467 A.2d 1274 (Del. Ch. 1983).
Id. (quotations omitted)
III. Opinion
The Delaware DUI Statute "provides enhanced penalties for repeat offenders." Section 4177B(e) sets a time limit on the use of prior convictions, and defines prior offenses as it applies to sentencing under § 4177. It is undisputed that Defendant enrolled and participated in the Pennsylvania ARD Program within the five year time period under the statute. The sole dispositive issue pending before the Court is whether Defendant's participation in that program constitutes a prior offense under § 4177B(e)(1)(d). Pursuant to § 4177B(e)(1)(d), in order to determine whether the Pennsylvania ARD Program constitutes a prior offense, the Court must consider whether that program is governed by a Pennsylvania statute that is similar to § 4177B, which governs Delaware's DUI-FOP. In determining whether two statutes are similar, Delaware courts analyze the similarity of the behavior that each statute prohibits. Statutes are "similar" if they are "nearly corresponding; resembling in many respects; having a general likeness, although allowing for some degree of difference."
Stewart v. State, 930 A.2d 923, 925 (Del. 2007); see also 21 Del. C. § 4177(d).
State v. Laboy, 117 A.3d 562, 565 (Del. 2015).
State v. Johnson, 2014 WL 1677971, at *2 (Del. Com. Pl. Apr. 24, 2014) (quoting State v. Rogers, 2011 WL 1398583, at *1 (Del. Super. Oct. 9, 2001)).
Id. (citing Rogers, 2011 WL 1398583, at *2).
A. Delaware and Pennsylvania DUI Statutes Generally
It is undisputed that the Pennsylvania DUI Statute and the Delaware DUI Statute are similar as Defendant has not set forth any argument in reply to the State's position that the statutes are similar. Nonetheless, the Court will analyze whether the statutes are similar in accordance with Delaware law.
See Def.'s Answering Br. p. 5.
At the time Defendant was charged in Pennsylvania, the Delaware DUI Statute provided, in pertinent part, as follows:
(a) No person shall drive a vehicle:
(1) When the person is under the influence of alcohol;
(2) When the person is under the influence of any drug;
(3) When the person is under the influence of a combination of alcohol and any drug;
(4) When the person's alcohol concentration is .08 or more; or
(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving;
(6) When the person's blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.
21 Del. C. § 4177(a) (2011).
Pennsylvania's DUI Statute provides, in pertinent part:
(a) General impairment.—
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
(b) High rate of alcohol.—An individual may not drive, operate or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
(c) Highest rate of alcohol.—An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
In Stewart v. State, the Delaware Supreme Court conducted a comparative analysis to determine whether prior conviction of driving under the influence under a Florida statute was similar to the Delaware DUI Statute for sentencing purposes. The Court ultimately found that the statutes were similar, noting that both statutes "contemplate[] conviction for driving under the influence if a person is impaired by either alcohol or drugs," did not require a chemical analysis of blood alcohol content as a prerequisite for conviction, and provided "alternative methods for proving the offense of driving under the influence without reference to a measurement of blood alcohol concentration." In its analysis, the Court compared the alcohol concentration necessary to presumptively establish guilt for each statute, and found that other than Florida's "slightly lower quantum of proof—Florida required a blood alcohol concentration (BAC) of .08 whereas Delaware law at the time required .10 or more—the prohibitive conduct was otherwise identical.
See 930 A.2d 923.
The Court looked to the Superior Court's comparative analysis in State v. Rogers, 2001 WL 1398583 (Del. Super. 2001), aff'd, 798A.2d 1042 (Del. 2002) (TABLE).
Id. at 926 n. 9.
Id. at 926-27.
As stated supra, the sole dispositive issue before the Court is whether Defendant's participation in Pennsylvania's ARD Program constitutes a prior offense under § 4177B(e)(1)(d). In Stewart, the Court held that "a prior offense under a 'similar statute' may be established under Title 21, section 4177B(e) of the Delaware Code without reference to the facts and circumstances of that offense." Likewise, this Court is not concerned with the facts and circumstances of the prior offense in this matter, and will limit its analysis to determining whether the Pennsylvania DUI Statute is similar to the Delaware DUI Statute in light of the rationale in Stewart.
Stewart, 930 A.2d at 926.
Under Delaware law at the time of Defendant's arrest, the Delaware DUI Statute and Pennsylvania DUI Statute both prohibit individuals being impaired by either alcohol or drugs while driving, do not require a chemical analysis of blood alcohol content as a prerequisite for conviction, and provide a method for proving that a person was driving under the influence without reference to a BAC level. Although the statutes differ in the amount of time in which chemical testing must be completed—Delaware requires testing to be completed within a four-hour-window whereas Pennsylvania requires testing to be completed within a two hour window—ultimately, the prohibited conduct for both statutes indicates that a person's alcohol concentration must not be above .08. Similarly, the fact that the Pennsylvania DUI Statute separates BAC levels into three tiers and the Delaware DUI Statute does not is of no consequence for the Court's analysis because the rationale behind delineating the BAC levels goes to sentencing, and has no bearing on the ultimate objective of prohibiting driving while impaired. The Pennsylvania DUI Statute and the Delaware DUI Statute need not be identical; for sentencing purposes, § 4177B(e)(1)(d) requires that the statutes be similar. Therefore, the Court finds that the Pennsylvania DUI Statute and the Delaware DUI Statute are similar for sentencing purposes under 21 Del. C. § 4177B(e)(1)(d).
B. The Delaware DUI-FOP Statute and the Pennsylvania ARD Statute
The Court now turns to its analysis in determining whether the Pennsylvania ARD Program is governed by a Pennsylvania statute that is similar to § 4177B. Both Pennsylvania and Delaware have established DUI diversionary programs that offer a deferred adjudication to first offenders who enroll in an alcohol rehabilitation program and places no adjudication of guilt upon successful completion of that program. Delaware offers a DUI-FOP pursuant to § 4177B (the "Delaware DUI-FOP Statute"), and Pennsylvania offers an ARD Program pursuant to 75 Pa. Cons. Stat. § 3807 (the "Pennsylvania ARD Statute").
Section 4177B provides, in pertinent part: (a) Any person who:
(1) Has never had a previous or prior conviction or offense as defined in paragraph (e)(1) of this section;may qualify for the first offense election at the time of arraignment. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and shall place the accused on probation upon terms and conditions, including enrollment in a course of instruction or program of rehabilitation established pursuant to § 4177D of this title. If the accused elects to apply, the application shall constitute a waiver of the right to speedy trial. If the person elects not to apply, or if is not accepted, the person shall promptly be arraigned for a violation of § 4177 of this title. If a person applies for or accepts the first offense election under this section, such act shall constitute agreement to pay the costs of prosecution for the case, and the court shall assess such costs and impose them as a condition of probation. If a person accepts the first offense election under this section, such action shall constitute a waiver of the right to an administrative hearing as provided for in § 2742 of this title and shall act to withdraw any request previously made therefor. For the purposes of this section, costs of prosecution shall be $250 and any additional costs as established by the appropriate court schedules; and (b) If a term or condition of probation is violated, including failure to appear for evaluation at an assigned evaluating agency, the person shall be brought before the court, or if the person fails to appear before the court, in either case, upon a determination by the court that the terms have been violated, the court shall enter an adjudication of guilt and proceed as otherwise provided under § 4177 of this title. (c) Upon fulfillment of the terms and conditions of probation, including satisfactory completion of the course of instruction and/or program of rehabilitation, and payment of all fees, the court shall discharge the person and the proceedings against the person and shall simultaneously with said discharge and dismissal submit to the Division of Motor Vehicles a written report specifying the name of the person and the nature of the proceedings against the person which report shall be retained by the Division of Motor Vehicles for further proceedings, if required. (d) The driver's license and/or driving privileges of a person applying for enrollment in an education or rehabilitation program pursuant to subsection (a) of this section shall forthwith be revoked by the Secretary for a period of 1 year. If the person is accepted into the education or rehabilitation program the period of revocation shall be for 1 year from the date of the initial revocation. If the person is not accepted for enrollment, or if the person is found by the court to be in violation of the terms of enrollment, the revocation under this section shall continue until sentence is imposed. This revocation shall not be concurrent with or part of any period of revocation established under any other provisions of this subchapter and shall be effective as of the date of sentencing for a period of 1 year. ... (f) The Attorney General may move the sentencing court to apply this section to any person who would otherwise be disqualified from consideration under this section because of the applicability of:
(2) Had not accumulated 3 or more moving violations within 2 years of the date of the offense in question on the person's driving record according to the records of the Division of Motor Vehicles of the person's state of residence; and
(3) Was not, with respect to the offense in question, involved in an accident resulting in injury to any person other than the person's own self; and
(4) Did not have an alleged alcohol concentration of .15 or more at the time of driving or within 4 hours of driving;
(5) Was not driving without a valid license or under a suspended or revoked license at the time of the offense in question; and
(6) Is not subject to the enhanced penalties of § 4177(d)(10) of this title for carrying a child on or within that person's vehicle while driving under the influence;
(1) Paragraph (a)(1) of this section, if any prior offense as defined in subsection (e) of this section is not within 10 years of the offense for which the person is being sentenced; or
(2) Paragraphs (a)(2), (a)(3), (a)(4), (a)(5) and (a)(6) of this section.
Section 3 provides, in pertinent part: (a) Eligibility.--
(1) Except as set forth in paragraph (2), a defendant charged with a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) may be considered by the attorney for the Commonwealth for participation in an Accelerated Rehabilitative Disposition program in a county if the program includes the minimum requirements contained in this section.
(2) The attorney for the Commonwealth shall not submit a charge brought under this chapter for Accelerated Rehabilitative Disposition if any of the following apply:
(i) The defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under section 3802 within ten years of the date of the current offense unless the charge was for an ungraded misdemeanor under section 3802(a)(2) and was the defendant's first offense under section 3802.
(ii) An accident occurred in connection with the events surrounding the current offense and an individual other than the defendant was killed or suffered serious bodily injury as a result of the accident.
(iii) There was a passenger under 14 years of age in the motor vehicle the defendant was operating.
In Stewart, when the Court compared DUI offense statutes, it analyzed the similarity of the behavior that each statute prohibited. In considering this rationale, as well as a plain reading of the language set forth in § 4177B(e)(1)(d), it follows that the comparative analysis the Court must conduct at this time calls for an examination of whether the objective of the diversionary programs established under the two statutes are similar.
Defendant argues that the Delaware DUI-FOP Statute and the Pennsylvania ARD Statute are dissimilar for three reasons: (1) the eligibility qualifications for entry into the respective diversionary programs; (2) the effect of enrolling into the respective programs concerning a defendant's driving privileges, and; (3) the consequences of violating the conditions set forth by the respective programs. The State counters those arguments individually, but ultimately, it takes the position that "the programs operate in substantially similar manners and serve identical purposes" despite there being some "degree of difference in the statutes."
State's Reply Br. p. 5.
After carefully reviewing the parties' arguments and applicable Delaware law, the Court finds Defendant's argument to be unpersuasive, and instead finds the State's position meritorious. The Pennsylvania ARD Program is a diversionary program designed as a first offender program. In fact, Chapter 3 of the Pennsylvania Rules of Criminal Procedure provide a "procedural framework for the utilization of [the ARD Program]," and the Explanatory Comment to this Chapter provides the following:
The primary purpose of this program is the rehabilitation of the offender . . . These rules contemplate that ordinarily the defendants eligible for the ARD program are first offenders who lend themselves to treatment and rehabilitation rather than punishment and that the crime charged is relatively minor and does not involve a serious breach of the public trust. The program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program.Thus, the objective of the Pennsylvania ARD Program is to defer adjudication for first offenders who enter into a rehabilitative program and provide first offenders an opportunity to have no adjudication of guilt provided successful completion of that program. This objective parallels the intent and rationale of the Delaware FOP.
Pa. R. Crim. P. Ch 3.
It is clear that the primary objective of the Delaware FOP is to provide a rehabilitation program for individuals who have violated § 4177 and are facing the possibility of a driving under the influence conviction for the first time. In Rogers v. State, the Delaware Supreme Court stated that "the obvious legislative purpose of [the Delaware FOP] was to permit first offenders to choose between adjudication of the charge through the judicial system or administrative processing without adjudication of guilt if successful in the rehabilitation program." In Tarr v. State, the Supreme Court also noted that the goals of the program "are to address the many facets of a serious problem without recourse to criminal sanctions." Therefore, the objective behind the Delaware FOP mirrors that of the Pennsylvania ARD Program in that it aims to rehabilitate first offenders and provides an alternative approach to an adjudication of guilt.
457 A.2d 727, 733 n. 11 (Del. 1983) (quoting State v. Bakke, Cr. A. S79-04-0051A (June 20, 1979) (Walsh, J.)).
Tarr v. State, 486 A.2d 672, 675 (Del. 1984).
Not only are the objectives of the Delaware FOP Statute and the Pennsylvania ARD Statute similar, but they also achieve these objectives in a similar manner. Upon entering the respective programs, defendants are placed on probation, and enroll in instructive or rehabilitation courses. Throughout the duration of both programs, defendants are subject to the court's supervision and are evaluated for substance abuse. Although the Pennsylvania ARD Statute and Delaware FOP Statute may differ in specific eligibility requirements or effect of failing to successfully complete their respective diversionary programs, such difference are of no consequence because the ultimate objective and the way in which that objective is achieved is similar—"it is a deferred adjudication available to first offenders who commit to an alcohol rehabilitation program and for whom there is no adjudication of guilt, provided they successfully complete the program, [at which point,] [t]he offender is effectively discharged from the program and the case is dismissed." Therefore, the Pennsylvania ARD Statute and the Delaware FOP Statute are similar as they are "resembling in many respects" and have a "general likeness" despite having "some degree of difference."
State v. Dean, 2014 WL 3048724, at *2 (Del. Super. 2014) (comparing the Delaware DUI-FOP program to Maryland's PBJ equivalent, which places certain conditions unique to a driving under the influence charge).
Johnson, 2014 WL 1677971, at *2 (citing Rogers, 2011 WL 1398583, at *2).
IV. Order
The Court finds that the Pennsylvania DUI Statute and the Delaware DUI Statute, and the Pennsylvania ARD Statute and Delaware DUI-FOP Statute, are similar within the meaning of 21 Del. C. § 4177B(e)(1)(d). Therefore, the State's Application to Sentence Defendant as a Second Offender is GRANTED.
IT IS SO ORDERED this 22nd day of February, 2016.
/s/
John K. Welch, Judge
(b) Evaluation and treatment.-- (1) A defendant offered Accelerated Rehabilitative Disposition for a violation of section 3802 is, as a condition of participation in the program, subject to the following requirements in addition to any other conditions of participation imposed by the court: (i) The defendant must attend and successfully complete an alcohol highway safety school established under section 1549 (relating to establishment of schools). A participating defendant shall be given both oral and written notice of the provisions of section 1543(b) (relating to driving while operating privilege is suspended or revoked). (ii) Prior to receiving Accelerated Rehabilitative Disposition or other preliminary disposition, the defendant must be evaluated under section 3816(a) (relating to requirements for driving under influence offenders) to determine the extent of the defendant's involvement with alcohol or other drug and to assist the court in determining what conditions of Accelerated Rehabilitative Disposition would benefit the defendant and the public. If the evaluation indicates there is a need for counseling or treatment, the defendant shall be subject to a full assessment for alcohol and drug addiction in accordance with the provisions of section 3814(3) and (4) (relating to drug and alcohol assessments). (iii) If the defendant is assessed under subparagraph (ii) to be in need of treatment, the defendant must participate and cooperate with a licensed alcohol or drug addiction treatment program. The level and duration of treatment shall be in accordance with the recommendations of the full assessment. Nothing in this subparagraph shall prevent a treatment program from refusing to accept a defendant if the program administrator deems the defendant to be inappropriate for admission to the program. A treatment program shall retain the right to immediately discharge into the custody of the probation officer an offender who fails to comply with program rules and treatment expectations or refuses to constructively engage in the treatment process. (iv) The defendant must remain subject to court supervision for at least six months, but not more than 12 months. (v) The defendant must make restitution to any person that incurred determinable financial loss as a result of the defendant's actions which resulted in the offense. Restitution must be subject to court supervision. (vi) The defendant must pay the reasonable costs of a municipal corporation in connection with the offense. Fees imposed under this subparagraph shall be distributed to the affected municipal corporation. (vii) The defendant must pay any other fee, surcharge or cost required by law. Except as set forth in subparagraph (vi), (viii) or (ix), a fee or financial condition imposed by a judge as a condition of Accelerated Rehabilitative Disposition or any other preliminary disposition of any charge under this chapter shall be distributed as provided for in 42 Pa.C.S. §§ 3571 (relating to Commonwealth portion of fines, etc.) and 3573 (relating to municipal corporation portion of fines, etc.). (viii) The defendant must pay the costs of compliance with subparagraphs (i), (ii) and (iii). (ix) The defendant shall pay a cost of $25 which shall be forwarded to the State Treasurer for deposit in the Emergency Medical Services Operating Fund. (2) The defendant shall be subject to a full assessment for alcohol and drug addiction if any of the following apply: (i) The evaluation under paragraph (1)(ii) indicates a likelihood that the defendant is addicted to alcohol or other drugs. (ii) The defendant's blood alcohol content at the time of the offense was at least 0.16%. (3) The assessment under paragraph (2) shall be conducted by one of the following: (i) The Department of Health or its designee. (ii) The county agency with responsibility for county drug and alcohol programs or its designee. (iii) The clinical personnel of a facility licensed by the Department of Health for the conduct of drug and alcohol addiction treatment programs. (4) The assessment under paragraph (2) shall consider issues of public safety and shall include recommendations for all of the following: (i) Length of stay. (ii) Levels of care. (iii) Follow-up care and monitoring. (c) Insurance.-- (1) This subsection shall only apply to a health insurance, health maintenance organization or other health plan required to provide benefits under section 602-A of the act of May 17, 1921 (P.L. 682, No. 284)1, known as The Insurance Company Law of 1921. (2) If an individual who is insured by a health insurance, a health maintenance organization or other health plan, that is doing business in this Commonwealth, the individual may not be deprived of alcohol and other drug abuse and addiction treatment or coverage within the scope of that plan due to the identification of an alcohol or other drug problem which occurs as a result of an assessment under this section. (d) Mandatory suspension of operating privileges.--As a condition of participation in an Accelerated Rehabilitative Disposition program, the court shall order the defendant's license suspended as follows: (1) There shall be no license suspension if the defendant's blood alcohol concentration at the time of testing was less than 0.10%. (2) For 30 days if the defendant's blood alcohol concentration at the time of testing was at least 0.10% but less than 0.16%. (3) For 60 days if: (i) the defendant's blood alcohol concentration at the time of testing was 0.16% or higher; (ii) the defendant's blood alcohol concentration is not known; (iii) an accident which resulted in bodily injury or in damage to a vehicle or other property occurred in connection with the events surrounding the current offense; or (iv) the defendant was charged pursuant to section 3802(d). (4) For 90 days if the defendant was a minor at the time of the offense. (e) Failure to comply.-- (1) A defendant who fails to complete any of the conditions of participation contained in this section shall be deemed to have unsuccessfully participated in an Accelerated Rehabilitative Disposition program, and the criminal record underlying participation in the program shall not be expunged. (2) The court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in the Rules of Criminal Procedure if the defendant: (i) fails to meet any of the requirements of this section; (ii) is charged with or commits an offense under 18 Pa.C.S. (relating to crimes and offenses); or (iii) violates any other condition imposed by the court.