Can the District Attorney Deny My ARD Application?

Posted by Joseph D. Lento | Jul 27, 2017 | 0 Comments

When a person is arrested and charged with a crime in Pennsylvania for the first time in his or her life, the person will be known as a "first-time offender."  Unlike people who have prior criminal contacts, especially convictions, a first-time offender may be afforded consideration from the prosecution in how they may be able to resolve their case.  Although anyone can have the misfortune to be arrested due to a lapse of judgment or an honest mistake, some groups in Pennsylvania may have more to lose - employees who are subject to criminal background checks, professionals who have to maintain a professional license such as doctors, nurses, and so forth, college students, and the list goes on. 

What is a pre-trial diversion program in Pennsylvania?  How can it help with my criminal case?

Anyone can make a mistake, but how that mistake is addressed and resolved can determine how burdensome any consequences may be.  An effective defense attorney will understand what options may be available for both first-time offenders, and also others who may have the possibility of being afforded a second chance by the prosecution.  Different District Attorney's Offices throughout Pennsylvania have various pre-trial "diversion" programs intended to allow a person to resolve his or her criminal case in a more agreeable manner. 

What is ARD in Pennsylvania?

Although these pre-trial diversion programs vary by county, there is one pre-trial diversion program that exists statewide.  This program is known as the Accelerated Rehabilitative Diversion program - "ARD" for short" - and acceptance into the ARD program can mean the difference between a future without additional burden, or one that is hindered by a criminal conviction and criminal record.

How can I get ARD for my criminal case?

Knowing what criteria the District Attorney will consider in whether ARD is granted or denied to a defendant is critical to submitting the strongest possible application for ARD.  An effective defense attorney will know what kinds of case would be appropriately resolved through ARD, and in seeking such a resolution, will not submit a "barebones" application of a defendant's behalf, but rather, a comprehensive application that documents anything and everything positive about a defendant with the hope and goal being the the defendant will be granted ARD, and therefore, a second chance.

Who decides if I will be granted ARD for my charges?

The District Attorney, or more accurately, the assistant district attorneys who effectuate the policies of the elected District Attorney, had broad discretion over whether a person who is seeking to resolve his or her case through Accelerated Rehabilitative Disposition, also known as "ARD."

Per the Rules of Pennsylvania Criminal Procedure, the District Attorney upon his or her motion or at the request of the defendant's attorney may "move" before or after the filing of an information for the admission of a defendant into the ARD program.  It should be noted that only the District Attorney may move for a defendant to be admitted into ARD.  In addition, because resolving a criminal case through the ARD program is considered a privilege and not a right, a defendant may not move for acceptance into ARD with the District Attorney's approval.   As importantly, especially in instances when ARD is denied for a defendant, the Court itself may not order that a defendant be placed in an ARD program over the objection of the District Attorney's Office.

Although it may seem unfair at times, the reasoning behind the broad discretion afforded the District Attorney in granting or denying a defendant ARD is that it ensures that no defendant will be admitted to ARD unless the District Attorney (the party in Pennsylvania criminal court proceedings that represents the interests of the Commonwealth of Pennsylvania) determines that a particular defendant's case is best handled by suspending prosecution pending the successful completion of ARD.

What is the purpose of ARD in Pennsylvania?

Generally, the purpose of ARD is to avoid the need for protracted criminal court proceedings in cases which are "relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment."  The foregoing language is an important consideration in the kinds of cases that will be appropriately resolved through ARD.  The language itself is from the "Committee Introduction to the Pennsylvania Rules of Criminal Procedure 310-320 which govern Accelerated Rehabilitative Disposition in Pennsylvania.

Does the District Attorney have the final say in deciding whether ARD will be granted?

Although the scope of the District Attorney's discretion in granting or declining to admit a defendant into the ARD program is broad, it is not without limits.  As decided by the Pennsylvania Superior Court in the case of Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986), a criminal defendant may not request to be admitted into the ARD program after a conviction, and the District Attorney cannot move for a defendant's admission to ARD after a defendant's conviction. 

An additional consideration is that if the reason that a defendant is denied ARD is capricious, or does not comply with established Pennsylvania law, the decision of the District Attorney's Office can be challenged when appropriate. The District Attorney may not reject a person from consideration for admission to ARD merely because he or she was "philosophically" opposed to the proposition.  In addition, the reasons for not allowing a defendant to resolved his or her charges through ARD should be openly and specifically stated.

Pennsylvania courts recognize that the judgment about who can benefit from ARD is subjective.  Accordingly, because of this subjective judgment, Pennsylvania courts also recognize that the District Attorney may err on the side of caution in deciding whether or not to allow ARD which is generally allowable.  For example, the Pennsylvania Superior Court has upheld decisions made by the applicable District Attorney rejecting defendants for ARD faced with the following circumstances: 1) A defendant who had a prior (13-year-old) conviction in the case of Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 3737 (1986); 2) A defendant who had a blood alcohol content (BAC) of 0.245% in a DUI case.

Can I "appeal" my rejection from ARD?

To establish an abuse of discretion in refusing a defendant for ARD, the defendant must show that the District Attorney used criteria for admission to ARD "wholly, patently, and without doubt unrelated to the protection of society and/or to the likelihood of a person's success in rehabilitation, such as race, religion, or other such prohibited considerations."  For example, in a non-DUI case, a defendant was excluded from ARD solely because of the defendant's potential inability to pay restitution due to the defendant being indigent.  The Pennsylvania Superior Court held that an inquiry should have been made into the reasons for the defendant's prospective inability to pay rather than summarily denying the defendant's application for ARD.

Can I be denied ARD for my DUI case?

Under present Pennsylvania law, specifically § 3807(a)(2) of the Pennsylvania Consolidated Statutes, the District Attorney may not allow a person charged with a DUI offense to resolve his or her case through ARD it any of the following conditions apply:

  • The defendant has been found guilty of, or accepted ARD for, a charge brought under 3802 within 10 years of the date of the current offense, unless the charge was for an ungraded misdemeanor under § 3802(a)(2) and was the defendant's first offense under § 3802
  • An accident occurred in connection with the events surrounding the defendant's current offense and an individual other than the defendant suffered serious bodily injury as a result of the accident.
  • There was a passenger under 14 years of age in the motor vehicle (car, SUV, truck, and so forth) that the defendant was driving (operating).

Philadelphia ARD Attorney | Lawyer to Help Get ARD for Pennsylvania Criminal Charges

If you or a loved one is charged with a crime for the first time in Pennsylvania, the prospect of ARD should be explored (in many, if not most instances); it is better to have options, especially when faced with a challenge, and if criminal charges can be resolved through ARD, such a resolution can allow for a person to have a second chance.

Whether you or a loved one is trying to deciding if ARD is the best way to resolve a case in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, or if trying to make the chances of getting ARD as strong as possible, contact attorney Joseph D. Lento today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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