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COMMONWEALTH PENNSYLVANIA v. EDWARD E. LUTZ (06/26/85)

decided: June 26, 1985.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER,
v.
EDWARD E. LUTZ, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. RONALD NESTOR, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. PAUL D. CLINE, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. JOHN SHAND FRICK, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. JOSEPH P. CONWAY, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. JAMES GIAMP, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. DONALD RAY FAUST, JR., RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. MICHAEL BARRON EMERT, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, PETITIONER, V. GEORGE MACALLISTER, RESPONDENT



No. 60 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated September 4, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division at No. 492 C 1984. No. 61 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated September 18, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 1459 C 1983. No. 62 W.D. Misc. Docket, 1984, Application for Extraordinary Review and/or Petition for Review from the Order dated September 4, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 521 C 1984. No. 63 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated September 17, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 300 C 1984. No. 64 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated September 11, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 1212 C 1984. No. 66 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated September 28, 1984, entered by the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC 8406484. No. 75 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated October 16, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 1249 C 1984. No. 76 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order entered October 9, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 1102 C 1984. No. 77 W.D. Misc. Docket, 1984, Application for Extraordinary Relief and/or Petition for Review from the Order dated October 16, 1984, entered by the Court of Common Pleas of Westmoreland County, Pennsylvania, Criminal Division, at No. 442 C 1984.

COUNSEL

John J. Driscoll, Dist.Atty., Donna J. McClelland, Mary Beth Taylor, Asst.Dist.Attys., Greensburg, Robert E. Colville, Dist.Atty., Robert L. Eberhardt, Deputy Dist.Atty., Pittsburgh, for petitioner.

Bernard McArdle, Stewart, McCormick & McArdle, Greensburg, for Lutz.

Mary Baloh, Kradel and Himler, Latrobe, for Nestor and Emert.

George Lynch, Latrobe, for Cline.

Richard H. Galloway, Richard H. Galloway & Associates, P.C., Greensburg, Ross S. Bash, Delmont, for Frick.

Joseph Cassarino, Charles R. Conway, Gary A. Falatovich, Greensburg, for Conway.

Thomas W. Brown, Pittsburgh, for Giamp.

Gregory Cecchetti, Asst. Public Defender, Greensburg, for Faust.

Angelea Mitas, Office of the Public Defender, Greensburg, for MacAllister.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring and dissenting opinion in which Zappala, J., joins.

Author: Flaherty

[ 508 Pa. Page 302]

OPINION OF THE COURT

On application of attorneys for the Commonwealth, we have assumed plenary jurisdiction in the above-captioned nine cases, which have been consolidated herein for determination. Although these cases come to us in various procedural postures, the dispositive question in each is whether in a prosecution for drunk driving under the Motor Vehicle Code, 75 Pa.C.S.A. 3731, a defendant may be admitted to Accelerated Rehabilitative Disposition (ARD) over the objection of the attorney for the Commonwealth. In all of these cases, the attorneys for the Commonwealth declined to move for the defendants' admission into the ARD program, but the court, over objection of the Commonwealth, and upon motion of defense counsel, ordered that the defendants be considered for admission to the program or, in two cases, actually ordered that the defendants be admitted to ARD.*fn1

[ 508 Pa. Page 303]

THE THEORY OF ARD

ARD, accelerated rehabilitative disposition, is a pretrial disposition of certain cases, in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant's successful participation in a rehabilitation program, the content of which is to be determined by the court and applicable statutes.

Under the ARD rules, which this Court created in 1972 pursuant to our authority to supervise the lower courts, the district attorney has the discretion to refuse to submit a case for ARD, and if the case is submitted for ARD, the court must approve the defendant's admission. These rules, which appear at Pa.R.Crim.P. 175-185, also provide that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete the ARD successfully, he may be prosecuted for the offense with which he was charged. The district attorney's utilization of ARD is optional under the rules.

The impetus behind the creation of such rules was the belief, shared by the President's Commission on Law Enforcement and the Administration of Justice that some "cases which are relatively minor or which involve social or behavioral problems . . . can best be solved by programs and treatments rather than by punishment."*fn2 Comment to Pa.R.Crim.P. 185.

[ 508 Pa. Page 304]

STATUTORY CREATION OF ARD IN DRUNK DRIVING CASES

Whereas the ARD rules promulgated by this Court established ARD as an option which courts of common pleas acting upon the recommendation of district attorneys might utilize in appropriate cases, the 1982 Motor Vehicle Code mandates the creation of a statewide ARD program with respect to drunk driving cases:

Accelerated Rehabilitative Disposition

The court of common pleas in each judicial district and the Municipal Court of Philadelphia shall establish and implement a program for Accelerated Rehabilitative Disposition for persons charged with a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) in accordance with the provisions of this chapter and rules adopted by the Supreme Court.

75 Pa.C.S.A. ยง 1552. (Emphasis added).

Although the statute creates ARD programs for drunk drivers, nowhere, apart from the reference in Section 1552 to the provisions of the chapter and the rules adopted by this Court, does it specify how persons charged with drunk driving are to be admitted to these programs. The only other reference to procedural ...


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