Prosecutor’s Denial of ARD Upheld by Superior Court

Posted in ARD on September 6, 2020

Many first-time DUI offenders participate in a pretrial diversionary program called Accelerated Rehabilitate Disposition (ARD) that allows a person to have the charges dismissed and expunged upon completion of the program requirements.   Whether a person is approved to participate in ARD is generally up to the District Attorney in the particular county, and the District Attorney’s authority was recently reiterated in a Pennsylvania Superior Court decision.

ARD Consideration

In this particular case, Commonwealth v. Briganti, the man applying for ARD was a first-time DUI offender in Pennsylvania, but he had previously been charged with a DUI in Ohio.  In the Ohio case, the driving under the influence charge was dismissed, and the man pleaded guilty to a less severe traffic offense.  The man submitted an application for ARD consideration, and the prior DUI charge was disclosed on the application.  The district attorney denied ARD because the man was previously charged with driving under the influence in Ohio.  The man’s defense attorney filed a motion with the court and tried to have a judge force the district attorney to approve ARD.  The judge denied the defense request and refused to overrule the prosecutor’s denial of ARD.  The man’s case proceeded to a trial, he was convicted, and he was sentenced to the mandatory minimum penalties for a DUI offense.  He then appealed the denial of ARD to the Pennsylvania Superior Court.

Appeal of ARD Denial

The Superior Court’s ruling emphasized that ARD is a privilege and not a right, meaning that just because a person is a first time DUI offender does not mean that the person is entitled to an ARD disposition.  The Court clearly reiterated the idea that the district attorney can deny ARD for first time offenders and also stated that the district attorney’s decision can only be overruled IF the prosecutor considered criteria or issues that were “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.”  Therefore,  as long as the district attorney does not consider a person’s race, religion, or some other non-relevant factor, the prosecutor’s decision cannot be reversed by a judge. The Superior Court did not find any evidence that the Potter County District Attorney had considered any improper factor, so the Court denied the man’s appeal and upheld his conviction and sentence.

ARD Reconsideration

Many people think that it is unfair that the ARD decision is made by the prosecutor and not a judge because the judge is supposed to be fair, impartial, and expected to “do the right thing.”  Regrettably, in Pennsylvania, the law is very clear district attorneys make the ARD decision.  In cases in which ARD is denied, it is extremely important to find out the precise reason for the denial and to then try to neutralize those issues or concerns.  For example, if a client has an extremely high blood alcohol level or other indicators of alcohol abuse, it is important to have the client commence counseling immediately.  Confirmation of attendance at counseling is then sent to the prosecutor to show that the client is being proactive in fixing the underlying alcohol problems.  Hiring an experienced DUI defense attorney does not guarantee that ARD will be approved, but hiring a good lawyer does substantially increases the likelihood of success because the attorney knows what to do to increase the probability that ARD will be approved.