A Springettsbury Township police officer accused of crashing his patrol car while drunk on duty was rejected from a probationary program, but his attorney is seeking to have the rejection overturned.
Gary D.S. Utter, a seven-year officer, was denied into the Accelerated Rehabilitative Disposition program -- a program for nonviolent, first-time offenders.
York County District Attorney Stan Rebert rejected Utter on Dec. 4 "based on the circumstances of the case," according to court records. Rebert did not elaborate in the court records and could not be reached for comment Tuesday.
Utter, 37, of Stewartstown, was charged with driving under the influence by state police after crashing a 2005 Crown Victoria into a wall on the morning of Aug. 23 in the 2000 block of Mount Zion Road, less than a mile from the Springettsbury Township Police Station.
Utter's blood-alcohol level was 0.123 percent, according to a test taken at Memorial Hospital. The level at which a driver in Pennsylvania is considered drunk is 0.08 percent.
Utter's attorney, Harry Ness, filed a motion Dec. 30 appealing Rebert's decision to a York County Common Pleas Court judge.
Ness said Tuesday that Rebert's reason was vague, allowing people to "read between the lines" that Utter was denied because he was an on-duty police officer.
Based on the handling of the 1998 case of Robert Gano -- an off-duty state trooper charged with drunken driving -- Rebert knows he cannot treat Utter differently because he is a police officer, Ness said.
Rebert approved Gano for ARD, a decision later rejected by Judge John Chronister and subsequently overturned by the state Superior Court. The appeals court ruled police officers cannot be held to a higher standard.
"You can't treat someone differently because they are a cop. You can't treat one cop better than you treat another cop. Stan has no problem allowing cops into the program," Ness said.
As a first-time, nonviolent offender, Utter qualifies for ARD, Ness said. Utter has been through a 30-day inpatient treatment program -- more than he would get if convicted of DUI or admitted into ARD, he said.
And Utter was not drinking on duty but still had the aftereffects from the night before, he said.
"The program is for people who make a mistake for the first time," he said.
Utter is currently on a paid leave of absence. If convicted of DUI, Utter could lose his ability to serve as a police officer.
Ness said Utter's drinking was triggered by his July 2007 killing of Ronald T. Whitaker Sr., a prisoner in custody. Utter is named in a wrongful death civil suit filed by Whitaker's family, which is pending in federal court.
While being held for robbing a grocery store, Whitaker tried to hang himself with his shoelaces. Utter revived Whitaker, and Whitaker became violent. During the struggle, Whitaker grabbed Utter's nightstick and was going for Utter's gun when Utter shot him.
"That was brought it (the drinking) to a head for him," Ness said.
Rebert ruled the shooting was justified and cleared Utter in October 2007.
THE GANO CASE
In 1998, off-duty state police Trooper Robert Gano was arrested on suspicion of drunken driving after crashing his car into several parked cars in Penn Township. He applied for and was approved to ARD by York County District Attorney Stan Rebert.
He was later accepted into ARD along with 43 other people by York County Judge John Chronister. After reading about Gano the next day in the paper, Chronister removed Gano from ARD, saying law-enforcement officers should be held to a higher standard than the average citizen.
Gano appealed. The Pennsylvania Superior Court held that Chronister was wrong and that police officers cannot be held to a higher standard.
Rebert has previously said that the Gano case is the legal standard.
"That's pretty much the ruling case. The Supreme Court said cops could be denied ARD if you are convicted of an infamous crime. But they cannot be held to a higher standard," he has said.