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HomeMy WebLinkAbout98-1616 criminalCOMMONWEALTH VS. RICHARD EUGENE ADAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1616 CRIMINAL CHARGE: DRIVING UNDER THE INFLUENCE AFFIANT: SGT. STEVEN KINGSBOROUGH IN RE' DEFENDANT'S PETITION TO COMPEL ARD BEFORE HESS, J. AND NOW, this ORDER day of February, 1999, the motion of the defendant to compel his admission into the ARD program is DENIED. BY THE COURT, Jonathan B irbeck, Esquire Chief Deputy District Attorney Paul Bradford Orr, Esquire For the Defendant :rlm ,, COMMONWEALTH VS. RICHARD EUGENE ADAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1616 CRIMINAL CHARGE- DRIVING UNDER THE INFLUENCE AFFIANT: SGT. STEVEN KINGSBOROUGH IN RE' DEFENDANT'S PETITION TO COMPEL ARD BEFORE HESS, J. OPINION AND ORDER This case is before us on the defendant's petition for admission into the Accelerated Rehabilitative Disposition (ARD) program for driving under the influence of alcohol. The defendant has been denied admission into the ARD program for DUI offenders by the district attorney based on two previous convictions for driving under the influence of alcohol, one in October of 1971 and another in November of 1974. The defendant contends that convictions so remote should not be considered by the district attorney in determining eligibility for ARD, and that in doing so the district attorney has abused his discretion. The roles for ARD procedure are set forth in Rules 175-185 of the Pennsylvania Rules of Criminal Procedure. The Rules provide that the attorney for the Commonwealth has the discretion to move to submit a case for ARD and that the court must approve this motion. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (Pa. 1985). "The roles do not provide that other parties may submit a case for ARD consideration." Id__ at 305,495 A.2d at 932. We believe it is well settled that "[a]dmission to an ARD program is not a matter of right, but a privilege." Id__. at 307, 495 A.2d at 933 (citing Commonwealth v. Armstrong, 495 Pa. 506, 512, 434 A.2d 1205, 1208 (1981)). Further, we believe it is also well settled that "the decision to 98-1616 CRIMINAL submit the case for ARD rests in the sound discretion of the district attorney." Commonwealth v. Darkow, 426 Pa. Super. 219, 222, 626 A.2d 1173, 1174 (1993). It is clear that the defendant does not have standing under the Rules of Criminal Procedure to move for his own admission into the ARD program. However, the defendant has alleged in his petition that the district attorney has committed an abuse of discretion by failing to move for his admission into the ARD program. The defendant's lack of standing does not preclude our review of the question as to whether the district attorney has committed an abuse of discretion. The district attorney's decision concerning which defendants should be admitted into ARD is given great deference by the court, and will only be questioned if there is an abuse of discretion. See Id. An abuse of discretion may only be found if the district attorney denies a defendant admission on grounds that are "wholly, patently, and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations." Id__~. The defendant has alleged none of these "obviously prohibited considerations" in his'petition. Additionally, we can find no authority for the proposition that it is an abuse of discretion for a district attorney to consider previous DUIs that occurred over 20 years ago in deciding whether to move for a defendant's admission into ARD. Under 75 Pa.C.SA. Section 3731 (d), the defendant may not be admitted to ARD if he or she has been admitted to ARD within the past seven years, but this "does not foreclose the Commonwealth from examining conduct of the 98-1616 CRIMINAL defendant which falls outside of the perimeters of the established time period." Darkow at 224, 626 A.2d at 1176. In the case sub judice, the district attorney requires that a defendant must meet six general criteria in order to participate in the ARD-DUI program' 1. the defendant has had no prior ARD disposition or conviction for a prior DUI offense; 2. that no statutory exclusion exists in the defendant's case; 3. the defendant was not on probation or parole at the time of the current offense; 4. the defendant did not cause serious victim impact; 5. the defendant has had no prior felony conviction within 15 years to the date of the defendant's present charge; and 6. any other criteria deemed appropriate based on the factual circumstances of the defendant's present case. The district attorney has chosen not to move for the defendant's admission based on his failure to meet the first requirement that "the defendant has had no prior ARD disposition or conviction for a prior DUI offense." [N]o criminal defendant will be admitted to ARD unless the party to the case who represents the interests of the Commonwealth, the district attorney, has made the determination that a particular case is best handled by suspending the prosecution pending the successful completion of a diversionary ARD program. Lutz at 307, 495 A.2d at 933. In this county, the district attorney has chosen to disqualify from ARD persons with prior 3 98-1616 CRIMINAL driving under the influence convictions regardless of the remoteness of those convictions in time. We are satisfied that this is not an abuse of discretion. ORDER AND NOW, this day of February, 1999, the motion of the defendant to compel his admission into the ARD program is DENIED. BY THE COURT, Jonathan B irbeck, Esquire Chief Deputy District Attorney Kewn ~.'Hess, J. / Paul Bradford Orr, Esquire For the Defendant 'rim