Arkansas’s First Offender Act — commonly referred to as Act 346 — is a sentencing option that may allow certain first-time offenders to resolve a criminal case without having a formal conviction entered against them. For the right defendant, in the right case, it can be the difference between a clean record and a permanent felony.
Act 346 is codified at Arkansas Code Annotated § 16-93-303. It is most often used in cases involving individuals who do not have prior felony convictions and who may be eligible for probation rather than immediate entry of judgment.
Important
Act 346 is not automatic and is not a right. The statute explicitly states it does not “require or compel” any Arkansas court to establish first-offender procedures. Eligibility, prosecutor agreement, and judicial approval all matter — and the decision needs to be made before entering a plea, not after.
How Act 346 Works
Under Act 346, a person may enter a plea of guilty or nolo contendere (no contest), but the court does not enter a formal judgment of conviction at that time. Instead, the court places the person on probation for a specified period of at least one year.
If the person successfully completes the terms and conditions of probation, the court may:
- Dismiss the case
- Discharge the person without entering a conviction
This means that, after successful completion of probation, the case may be resolved without a permanent criminal conviction on the person’s record.
Who Is Eligible for Act 346?
Act 346 is generally intended for individuals who have not previously been convicted of a felony offense. Eligibility depends on several factors:
No Prior Felony Convictions
The defendant generally must have no prior felony convictions, in Arkansas or elsewhere.
Plea Required — Not Trial
Act 346 requires a guilty or no-contest plea. It cannot be used after a bench or jury trial.
Prosecutor’s Agreement
Act 346 generally requires the prosecutor’s agreement — it isn’t something a defendant can demand.
Judicial Approval
Even with prosecutor agreement, the court must approve. Local practice varies significantly by judge and jurisdiction.
Qualifying Offense
Certain offenses are excluded from Act 346 sealing — most notably, violent offenses and offenses that require sex offender registration.
No Prior Use
Act 346 generally cannot be used if the defendant has previously received an Act 346 disposition.
Act 346 vs. Act 531: A Critical Distinction
Arkansas actually has two first-offender statutes, and they work very differently. Defendants and even some attorneys confuse them. Here’s how they compare:
| Feature | Act 346 | Act 531 |
|---|---|---|
| Entry of Guilt | No formal entry of guilt at plea | Finding of guilt entered at plea |
| Prosecutor Agreement | Generally required | Generally not required |
| Path to Sealing | Sealing available after successful completion | Petition to seal must be filed after probation |
| State Firearm Rights | Generally restored after completion and sealing under § 5-73-103 | Generally not restored even after sealing |
For most defendants who are eligible, Act 346 is the more favorable disposition — but it is also harder to obtain because it requires the prosecutor’s agreement.
Is Act 346 the Same as Having the Charge Dismissed?
No. When someone receives Act 346 probation, they are still required to:
- Enter a plea of guilty or nolo contendere
- Comply with all probation conditions
- Pay any ordered fines, fees, or restitution
- Complete any treatment, classes, or community service ordered by the court
- Comply with any required vocational or educational programs
Until probation is successfully completed, the case remains open and subject to court supervision. If the court finds that lack of an employable or marketable skill contributed to the offense, the statute requires the court to order the defendant to enroll in and complete a vocational, technical, or educational program — and to maintain employment for the remainder of probation or three years, whichever is shorter.
What Happens If You Violate Act 346 Probation?
If the terms of probation are violated, the court may revoke Act 346 status. If that occurs, the court can:
- Enter an adjudication of guilt for the original offense
- Impose any sentence that could have been imposed originally
In other words, what would have ended without a conviction now stays on your record permanently — and you lose the protection that made Act 346 attractive in the first place. This is why compliance with all probation conditions is critical when Act 346 is involved.
Can an Act 346 Case Be Sealed?
Yes. After successful completion of Act 346 probation and dismissal of the case, sealing is generally available under the Comprehensive Criminal Record Sealing Act of 2013.
Important Limitations Even After Sealing
A successful Act 346 disposition is powerful — but it does not erase the case for every purpose. Important limitations to understand:
Habitual Offender Status
If you pick up a new charge, prosecutors can count the deferred case toward habitual-offender enhancements.
Criminal History Scoring
The case still counts in criminal history assessments and sentencing-score calculations on future cases.
Witness Impeachment
Under Arkansas Rule of Evidence 609, the disposition can sometimes be used to challenge credibility when testifying.
Federal Consequences
Federal agencies — immigration, military, security clearance investigators — often treat the underlying plea as a conviction regardless of state-court outcome.
Professional Licensing
Some professional licensing boards require disclosure of pleas, even when the case was ultimately dismissed.
Future Use of Act 346
Generally, Act 346 cannot be used a second time — making the first opportunity especially important.
How Act 346 May Affect Firearms Rights
Act 346 can be important in cases where firearms rights are a concern, but the timing matters significantly.
While on probation: A person on Act 346 probation is generally prohibited from possessing firearms as a condition of probation. Possession during this period can constitute a violation and may result in revocation of Act 346 status — and the underlying conviction being entered.
After successful completion and sealing: Under Ark. Code § 5-73-103, a person whose record has been sealed under Act 346 is generally not treated as having a felony conviction for purposes of state firearm restrictions. However, federal firearm law operates separately — federal agencies and federal background checks may treat the underlying plea differently. Anyone whose firearm rights matter to them should consult an attorney about both state and federal implications before relying on a sealed Act 346 disposition.
Frequently Asked Questions
Does Act 346 apply automatically?
No. Act 346 is not automatic and not a right. It must be requested and approved by both the prosecutor and the court. It is typically negotiated during plea discussions, before any plea is entered.
Can Act 346 be used for felonies?
Yes. Act 346 can be used for both misdemeanors and certain felonies. However, eligibility depends on the specific offense, your history, and the prosecutor’s willingness to agree.
What offenses are excluded from Act 346 sealing?
The most significant exclusion is for sex offenses requiring registration under the Sex Offender Registration Act of 1997. Even after Act 346 probation is successfully completed, those cases are not eligible for sealing.
Will my employer know about an Act 346 plea?
During the probation period, the case appears on background checks. After successful completion and sealing, most private employers will not see the case — but federal employers, professional licensing boards, and certain other entities may still have access.
What if I get arrested again while on Act 346 probation?
A new arrest during Act 346 probation can trigger revocation. The court may enter the original conviction and impose any sentence that could have been imposed originally — meaning you face both the new charge and the consequences of the deferred case.
Can I take my case to trial and still use Act 346 if I lose?
No. Act 346 requires a guilty or nolo contendere plea — it cannot be used after a bench or jury trial. This is an important strategic consideration: choosing trial means giving up the Act 346 option.
Can Act 346 be used more than once?
Generally, no. Act 346 is intended for first-time offenders, and prior use of Act 346 typically disqualifies a defendant from receiving it again. Some out-of-state deferred dispositions may not count as a prior Act 346 use, but this depends heavily on the facts.
Does Act 346 affect immigration status?
Federal immigration authorities sometimes treat a guilty or nolo contendere plea as a conviction, even when the state court does not formally enter judgment under Act 346. Non-citizens should consult both a criminal defense attorney and an immigration attorney before entering any plea.
Bottom Line
Act 346 can provide a meaningful opportunity for certain first-time offenders to resolve a case without a permanent criminal conviction — but it requires careful navigation. The decision to pursue Act 346 must be made before entering a plea, requires prosecutor and court approval, and carries real conditions during the probation period.
For the right defendant in the right case, it is one of the most powerful tools in Arkansas criminal law. For the wrong case, it can mean accepting probation conditions for an outcome that wasn’t truly available to begin with — or worse, ending up with a permanent conviction after a revocation.
Wondering If Act 346 Applies to Your Case?
The decision to pursue Act 346 has to be made before any plea is entered — and the trade-offs aren’t always obvious. An experienced defense attorney can review your case and explain whether this disposition is realistic and worth pursuing.
This post is provided for general informational purposes only and does not constitute legal advice. Reading this content does not create an attorney-client relationship with Wesley Rhodes, Attorney at Law. Laws and procedures change; the information above reflects Arkansas law as of the date of publication. If you need legal advice about your specific situation, consult a qualified criminal defense attorney promptly.