Commonwealth v. Stranges

WIEAND, Judge,

dissenting:

I respectfully dissent. The policy of the District Attorney of Bucks County which refuses to consider for Accelerated Rehabilitative Disposition (ARD) any person charged with driving while under the influence of alcohol if he or she was involved in an accident with another occupied vehicle, irrespective of fault, is arbitrary, bears no relation to the protection of society or the potential for successful rehabilitation of the offender, and is contrary to the intent of the legislature as manifested in the provisions of 75 Pa.C.S. §§ 1552 and 3731. I would affirm the trial court which held that the District Attorney had abused his discretion by denying ARD to Jeffrey Stranges under the circumstances of this case.

At or about 1:38 a.m. on April 23, 1988, Stranges was operating a Ford pickup truck in a westerly direction on Route 563 in Rockhill Township, Bucks County. Proceeding in the opposite direction was an International Scout being operated by Marc H. Zeigler. Suddenly and without prior warning, the Zeigler vehicle crossed the center line of the highway and struck the oncoming Stranges truck. In the ensuing collision, both drivers were injured and removed by ambulance to Grandview Hospital. Only Stranges was injured seriously. Blood samples taken at the hospital revealed that Stranges had a blood alcohol content of .13%, and Zeigler had a blood alcohol content of .15%. Investigating police charged both drivers with driving while under the influence of alcohol. In addition, Zeigler was charged with a lane violation.

*70 At the preliminary hearing, a charge that Stranges had violated 75 Pa.C.S. § 3731(a)(1) 1 was dismissed, but a charge that he had violated 75 Pa.C.S. § 3731(a)(4) by driving while the alcohol by weight in his blood exceeded O. 10. was returned to court. Stranges then requested the District Attorney to consider him for ARD, but Stranges was rejected solely because of the District Attorney’s policy that ARD would not be considered for persons accused of driving while under the influence of alcohol if they had been involved in an accident with another occupied vehicle. Appellant then filed a petition to compel admission to ARD, on which the court held a full hearing. At this hearing, the arresting police officer testified that the accident had been the fault of Zeigler, the other driver, and recommended that Stranges be admitted into the ARD program. He said that because of ditches along the side of the road he was unable to say that Stranges could have avoided the accident. Indeed, there was no evidence whatsoever that appellee’s consumption of alcohol had been related in any way to the happening of the accident. The court found that the district attorney had abused his discretion by blindly applying a policy which refused to consider a first offender for the ARD program if the offender had been involved in an accident.

In 1982, the legislature mandated an ARD program in each judicial district for persons charged with driving while under the influence of alcohol. 2 The only restrictions which the legislature placed on the availability of ARD in such cases were as follows:

*71 The attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:

(1) the defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense;

(2) the defendant committed any other act in connection with the present offense which, in the judgment of the attorney for the Commonwealth, constitutes a violation of any of the specific offenses enumerated within section 1542 (relating to revocation of habitual offender’s license); or

(3) an accident occurred in connection with the events surrounding the current offense and any per son, other than the defendant, was killed or seriously injured as a result of the accident.

75 Pa.C.S. § 3731(d) (emphasis added). It is evident from this statutory language that the legislature did not deem the mere happening of an accident a sufficient basis on which to bar ARD unless a person other than the defendant “was killed or seriously injured as a result of the accident.” Despite this clear expression of legislative intent, the District Attorney in Bucks County has rewritten the statute to prohibit the availability of ARD for any DUI defendant who has been involved in an accident with another vehicle, even where the accident was a minor fender bender and the defendant was free from fault in causing the accident. Because of this policy, the District Attorney in Bucks County refuses even to consider whether society and/or the offender will be better served by admitting an accused to ARD under such circumstances. I am unable to join my distinguished colleagues who perceive in such a policy neither arbitrariness nor an abuse of discretion.

The Supreme Court, in Commonwealth v. Lutz, 508 Pa. 297 , 495 A.2d 928 (1985), held that the decision to submit a case for ARD was vested in the sound discretion of the *72 district attorney. In this manner the Court sought to ensure that

no 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. Society has no interest in blindly maximizing the number of ARD’s passing through the criminal justice system, and the criminal defendant has no right to demand that he be placed on ARD merely because any particular offense is his first. Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society’s representative in the case, the district attorney, acting in conjunction with the court, and subject always to the restrictions set out in Section 3731(d) (concerning persons who may not be admitted to ARD) determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.

Id., 508 Pa. at 307 , 495 A.2d at 933 (emphasis added).

The discretion vested in the District Attorney, however, is not unlimited. In addition to the restrictions imposed by statute, the discretion of a district attorney is limited by his or her obligation to decide in each particular case whether ARD is “preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.” Id. It constitutes an abuse of the district attorney’s discretion to apply “some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation____” Id., 508 Pa. at 310 , 495 A.2d at 935 . See also: Commonwealth v. Ebert, 369 Pa.Super. 318, 322 , 535 A.2d 178, 180 (1987) (district attorney’s reasons for denying ARD must relate to *73 protection of society or to likelihood of candidate’s successful rehabilitation).

In the instant case, the district attorney refuses to consider the possibility that appellee can be rehabilitated by participation in ARD and the public benefitted thereby. He does so because of a policy adopted by him which is unwarranted by statute or judicial decision. According to this policy, even a driver having a blood alcohol content of 0.10% will not be considered for ARD in Bucks County if he or she should be so unfortunate as to be struck in the rear while stopped at a stop light. Such policy is arbitrary and, in my judgment, violates the exercise of discretion required in individual cases by the Supreme Court in Lutz . See: Commonwealth v. Martin, 466 Pa. 118 , 351 A.2d 650 (1976) (where judges agreed on policy that sentence for sale of heroin would be imprisonment for three to ten years, without consideration being given to defendant’s individual characteristics, sentence imposed pursuant to such policy was illegal). The District Attorney’s policy in this case is also contrary to the manifest intent of the legislature.

I agree with the trial court that to apply such a policy blindly, as the district attorney did in this case, was an abuse of discretion. I would affirm the order of the trial court.

. The language of 75 Pa.C.S. § 3731(a)(1) makes it criminal for a person to operate a motor vehicle while he or she is "under the influence of alcohol to a degree which renders the person incapable of safe driving."

. The statutory mandate is as follows:

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. § 1552.