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COMMONWEALTH PENNSYLVANIA v. BRENT ALLEN KIEHL (06/02/86)

filed: June 2, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BRENT ALLEN KIEHL, APPELLEE



Appeal from the Order of August 8, 1983 in the Court of Common Pleas of Clarion County, Criminal No. 72, C.R. 1983.

COUNSEL

William M. Kern, District Attorney, Clarion, for Commonwealth, appellant.

David M. Speer, Clarion, for appellee.

Olszewski,*fn1 Hester and Shiomos,*fn* JJ.

Author: Olszewski

[ 353 Pa. Super. Page 354]

Appellee, Brent Allen Kiehl, was arrested February 19, 1983 and charged with driving under the influence of alcohol, a violation of section 3731(a)(1)(4) of the Pennsylvania Vehicle Code of 1976 as amended, 75 P.S. ยง 3731(a)(1)(4). Appellee filed a request for acceptance into Accelerated Rehabilitative Disposition (ARD). The district attorney summarily rejected appellee's request, citing none of the reasons set forth in the statute for excluding the defendant from the program but merely saying he was philosophically opposed to it. Appellee filed a rule to show cause and the lower court on its own motion admitted appellee to ARD. This appeal followed.

The sole question before us is "whether in a prosecution for driving (under the influence) 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." Commonwealth v. Lutz, 508 Pa. 297, 302, 495 A.2d 928, 930 (1985). This question was answered in the negative by our Supreme Court in Commonwealth v. Lutz. Id. In that case the Court stated:

Id., 508 Pa. at 310, 495 A.2d at 935.

Thus, while the district attorney has sole discretion to move for a defendant's admission into ARD, the prosecutor may not summarily reject a person from consideration for admission. The Lutz Court noted that in all of the cases before it, "the prosecutors (had) openly specified their reasons for not submitting the cases for ARD . . . ." Lutz, 508 Pa. at 310, 495 A.2d at 934. For these reasons we reverse the order of the court below and remand this case for a hearing to allow the district attorney to openly specify the reasons for not submitting this case for ARD.

Reversed and remanded. Jurisdiction relinquished.

Disposition


*fn1 Case assigned to Judge Peter Paul Olszewski for opinion writing ...


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