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HomeMy WebLinkAbout03-1198WILLIAM R. COON, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND, PENNSYLVANIA No. i~)~.~ - //4 ~ LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGF AND NOW comes the Appellant, William R. Coon, through his attorney, Nathan C. Wolf, Esquire, and respectfully avers the following: 1. Appellant resides at 335 Hollowbrook Drive, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Appellant received Notice dated January 2, 2003, stating that as a result of his serving his one-year suspension of his drivers license, pursuant to his conviction for DUI, his driving license is to be restored on March 28, 2003, so long as he complies with the Restoration Requirements Letter. A true and correct copy is attached hereto as Exhibit "A". 3. In its pertinent parts, the letter states Defendant must make arrangements to have the Guardian Interlock installed at least thirty (30) days before March 28, 2003, and until such is done, he will be ineligible for restoration. 4. The letter also states that if he does not apply for or receive a Guardian Interlock License, he will receive an additional one (1) year license suspension. 5. The Pennsylvania Department of Transportation is acting under Chapter 70 of the Judicial Code including, Section 7003 and the related statutes, which were made law by Act 63 of 2000. 6. Appellant asserts that the Pennsylvania Department of Transportation is violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution. 7. The actions of the Commonwealth, and the application of the statute also violates the Due Process Clause of the United States Constitution. 8. Appellant's constitutional challenges have been previously decided by this Court. In Commonwealth v. Mockaitis, 54 Pa. D.C. 4th 115, (Court of Common Pleas, Cumberland County, 2001) Defendant's identical challenges were found to be meritorious, and it is the law of this County that enforcement of this act is unconstitutional. A true and correct copy is attached hereto as Exhibit "B". 9. In Watterson v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, --- A.2d ---, 2002 WL 31986405, 1055 C.D. 2002, filed on February 7, 2003 of this year, the Commonwealth Court made it clear that not only are attempts by the Department to impose the guardian interlock requirements without the Court's order, void ab initio, but that the time of restoration is the appropriate time to raise issues involving the constitutionality of Act 63 of 2000. A true and correct copy is attached hereto as Exhibit "C". 10. Since, according to current case law, this matter is ripe for review, and it is filed at a time when departmental action, being the thirty (30) day requirement prior to restoration, has been taken, this Court has the power to act and review the Department's actions. 11. The enforcement of Act 63 of 2000 being unconstitutional in Cumberland County, Appellant requests that this Honorable Court direct the Department of Transportation issue him a license forthwith, without any special requirements. 12. Appellant requests that this directive be enforced pending the outcome of this Appeal. WHEREFORE, Defendant respectfully requests this Honorable Court find that the Department of Transportation has violated the Due Process Clause of the United States Constitution, Article I, Section 26 of the Pennsylvania Constitution, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and direct that the Department of Transportation issue a standard drivers license on or after March 28, 2003, the date of Appellant's restoration, and that the Department of Transportation be enjoined from enforcing Act 63 of 2000 in Cumberland County. Date: March 18, 2003 Respectfully submitted, Suites 201/202 Carlisle, PA 17013.3052 (717) 243-6090 Supreme Court ID # 87380 Attorney for Defendant EXHIBIT 'A' COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA i7125 01/02/03 WILLIAM R COON 355 HOLLOWBROOK DR CARLISLE PA 17013 DRIVER'S LICENSE NUMBER: 23665256 BIRTH DATE: 07/23/75 ELIGIBILITY DATE: 03/28/03 Dear MR. COON This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving priviIege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You wiiI be notified by the Department of Transportation (PennDOT) that your driving priviiege has been restored. Only after that may you drive. An ELIGIBILITY DATE is listed above. This is the date you are eligible to have your driving privilege restored, provided no other violations are processed against your driving record. This date is effective regardiess of any other dates listed within this letter. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a $75.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order shouId be made payable to PENNDOT. PROOF OF INSURANCE -Within 30 days of your ELIGIBILITY DATE, provide a copy of one of the following to PENNDOT to show that ail motor vehicies currently registered in Pennsylvania in your name are insured: *Insurance ID card *Deciaration page of your insurance policy *Insurance Binder *An appiication of insurance to the PA Auto Insurance Plan If you do not own a motor vehicle currently registered in Pennsyivania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicies currently registered in Pennsylvania" Please inciude your name, address, driver's iicense number and date of birth on the statement. TERM SUSPENSION/REVOCATION LICENSE NO. : 23665256 -You have a 1 YEAR(S) suspension/revocation that began (or will begin) on 03/28/02. Credit for serving this suspension/revoca- tion began (or will begin) on 03/28/02 and wii1 end on 03/28/03. The suspension/revocation resulted from a vioiation on 02/OI/Oi of Section 373I, DRIVING UNDER INFLUENCE IGNITION INTERLOCK You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). Approximately 30 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. -Interlock Installation Services - 1-800-452-1739 -Consumer Safety Technoiogy, Inc. - 1-877-777-5020 -Nationai Interiock, Inc. (serving Eastern PA) - 1-866-3~2-~98~ -American Court Services (serving Central/Western PA) - 1-888-565-6227 -Guardian InterIock Systems - 1-800-~99-099~ -Draeger Interiock, Inc. - 1-800-332-6858 You will need to provide the vendor the following court information before the System can be installed. COUNTY CUMBERLAND CTY COURT NUMBER 00818 COURT TERM 2001 Please retain a copy of this letter to assist you in this process. If you choose not to install the Ignition Interlock System in your vehicie(s), your driving privilege wili remain suspended for an additionaI year. This letter identified the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the MAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at the beginning of this letter, on all documents you send to PENNDOT. Thank you. P.S. REMEMBER, your ELIGIBILITY DATE is 03/28/03. EXHIBIT 'B' · .Page .2.of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.P1.) (Cite as: 54 Pa. D. & C.4th 115) Court of Common Pleas of Pennsylvania, Cumberland County. Commonwealth V. Mockaitis No. 00-1692. February 12, 2001. Motor vehicles - Driving under the influence - Ignition Interlock Act - Constitutionality - Equal protection - Due process Because the Ignition Interlock Act violates the constitutional guarantees of equal protection and procedural due process, the court relieved defendant of any obligation to comply with the Act. Motion for partial post-sentence relief granted. Defendant pled guilty to driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1)(4)(ii). Because it was his second DUI offense, defendant's sentencing order, in compliance with the Ignition Interlock Act, 42 Pa.C.S. §§ 702-703, contained the following provision: "[a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of the defendant's operating privileges by the Department of Transportation." Defendant filed a motion to modify his sentence to delete this provision. He asserted that the Ignition Interlock Act was unconstitutional because it violated the guarantees of equal protection and due process. The Act requires the courts to order a person convicted of a second or subsequent DUI offense to install an approved ignition interlock device on all cars owned by that person. Moreover, the Act requires a recidivist DUI offender who seeks the restoration of his or her driving privileges to apply to PennDOT for an ignition interlock restrictive license, which restricts the person to operating only motor vehicles equipped with the devices. During the year following restoration of the person's operating privileges, he or she is precluded from operating a vehicle within the Commonwealth unless it is equipped with an approved ignition interlock device. Moreover, an offender who owns multiple vehicles must install the device on all of his or her vehicles. Defendant asserted that the Ignition Interlock Act Page 1 violates the equal protection clauses of the state and federal constitutions. The court determined that the Act should be analyzed using a rational basis standard because the privilege to operate a motor vehicle is neither a fundamental right nor an important right. Therefore, the court was required to determine whether the Act was enacted to promote a legitimate state interest and whether the Act is reasonably related to promoting that interest. The first prong of the rational basis test was met, the court determined, because the Commonwealth has a legitimate state interest in suspending the licenses of persons convicted of DUI. However, the court determined that the Act did not satisfy the second prong of the test because it treats persons differently on the basis of their ownership of motor vehicles. Specifically, an offender convicted of a second or subsequent DUI offense may obtain a restricted license after a one-year suspension if he or she owns a motor vehicle and it is equipped with an ignition interlock device. However, if the offender does not own a motor vehicle or leases a motor vehicle, he or she must wait two years before his or her driving privileges are restored. The Act's disparate treatment of individuals on the basis of their ownership of motor vehicles "does not bear a fair and substantial relationship to the object of the legislation[,]" the court determined. Moreover, "[l]egislation that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender[,]" the court stated. Rather, the court determined that the legislative goal would be satisfied by a law that restricts recidivist DUI offenders from operating a motor vehicle unless it is equipped with an ignition interlock device· The court also agreed with defendant that the Act violates the guaranty of procedural due process by suspending an offender's operating privileges for an additional year if PennDOT does not receive a certification from the sentencing court that an iginition interlock system has been installed on each motor vehicle owned by the offender. In the court's view, by requiring the common pleas courts to determine the eligibility of offenders for the reinstatement of their operating privileges, the Act's certification requirement turns the courts into agents for PennDOT. Because there is no mechanism for an offender to seek certification, nor is there a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · .Page .3.of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.Pl.) (Cite as: 54 Pa. D. & C.4th 115) P~e2 mechanism for an offender to challenge a court's decision regarding certification, the Act does not provide procedures that satisfy due process of law. Given the Ignition Interlock Act's constitutional deficiencies, the court vacated that portion of defendant's sentence that required his compliance with the Act. '117 M.L. Ebert Jr., district attorney, for Commonwealth. Timothy L. Clawges, for defendant. BEFORE: BAYLEY, OLER AND GUIDO, JJ BAYLEY, J. On October 10, 2000, defendant, David Matthew Mockaitis, entered a plea of guilty to a count of driving under the influence in violation of the Vehicle Code at 75 Pa.C.S. §3731(a) (1)(4)(ii). It was defendant's second offense. On November 13, 2000, defendant was sentenced to pay the costs of prosecution, a f'me of $300, and undergo imprisonment in the Cumberland County Prison for a term of not less than 30 days nor more than 23 months. [FNI] As required by Act 63 of 2000, the sentencing order contained the '118 following provision: "[a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of the defendant's operating privileges by the Department of Transportation." FN2. Defendant does not challenge the other provisions in the sentencing order. FN3. Under Rule 1410(B)(3)(a), the motion must be decided within 120 days of the date of filing unless an extension of 30 days is granted under subparagraph (3)(b). Act 63 of 2000 was enacted on June 27, 2000. The Act is titled, "An Act amending title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, providing for the use of ignition interlock systems and for restitution or identity theft." The Act establishes chapter 70 of the Judicial Code titled "Ignition interlock devices," and provides in pertinent part: "Section 7002. Ignition interlock systems for driving under the influence .... "(b) Second or subsequent offense-In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. §3731, the court shall order the installation of an approved ignition interlock device on '119 each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed .... FN1. The minimum term of 30 days imprisonment was mandated by the Vehicle Code at 75 Pa. C.S. § 3731 (e)(1)(ii). On November 16, 2000, pursuant to Pa.R. Crim.P. 1410(B)(1)(a)(v), defendant filed a timely optional post-sentence motion to modify his sentence by deleting this provision. [FN2] He maintains that Act 63 of 2000 is unconstitutional. The issues have been briefed and argued and are ready for decision. [FN3] "Section 7003. Additional driver's license restoration requirements. "In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. §1548 (relating to requirements for driving under influence offenders): "(1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. §3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-state offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · .Page .4.of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.Pl.) (Cite as: 54 Pa. D. & C.4th 115) P~e3 owned by the person has been equipped with an approved ignition interlock system. "(2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. §1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicle equipped with an approved interlock ignition system. '120 "(3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. "(4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. §1951(d) that does not contain the ignition interlock system restriction. "(5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. §3731 or a similar out-of-state offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). "Section 3. The provisions of 42 Pa.C.S. ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effective date of this section .... "(emphasis added) Section 4 of the Act provides that these provisions take effect on September 30,2000. Initially, the Commonwealth maintains that defendant lacks standing to challenge the constitutionality of Act 63 of 2000. A statute may not be challenged in the abstract. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). The Commonwealth suggests that it is speculative as to what prejudice defendant will suffer, if any, '121 from an application of Act 63. We disagree. The restriction imposed by the sentencing order prohibits defendant from having his operating privilege restored for two years unless, after completing a f'n'st year of suspension, he obtains a restrictive license for a second year. There is nothing abstract about the prohibition contained in the sentencing order. Defendant has standing to challenge the statute. Defendant maintains that Act 63 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution, and Article 1, Section 26 of the Pennsylvania Constitution. Equal protection claims under the United States and Pennsylvania constitutions are analyzed using the same standards. Commonwealth v. Albert, 563 Pa. 133, 758 A.2d 1149 (2000). Legislation must be examined according to one of three tests: strict scrutiny, intermediate scrutiny, or, the most deferential, rational basis. Smith v. Coyne, 555 Pa. 21, 722 A.2d 1022 (1999). In Smith, the Supreme Court of Pennsylvania stated: "Strict scrutiny is applied to classifications affecting a suspect class or fundamental right. Intermediate scrutiny is applied to important rights and 'sensitive' classifications. In all other cases, the challenged legislation will be upheld unless there is no rational basis for its enactment." The privilege to operate a motor vehicle is not a fundamental right. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Nor is it an important right that triggers the application of the heightened intermediate scrutiny test. Commonwealth v. McMullen, 756 A.2d '122 58 (Pa. Super. 2000). Statutes dealing with the suspension or prohibition of operating privileges are analyzed under the rational basis standard. Frantz v. PennDOT, 168 Pa. Commw. 35, 649 A.2d 148 (1994). Act 63 creates a classification based upon ownership of a motor vehicle. [FN4] We are satisfied that this is neither a suspect nor sensitive classification requiring heightened scrutiny. [FN5] Therefore, we will examine the statute using the rational basis standard. FN4. An offender convicted of a second or subsequent driving under the influence offense may obtain a restricted license after a one-year suspension if he or she Copt. © West 2003 No Claim to Orig. U.S. Govt. Works · Page 5. .of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.P1.) (Cite as: 54 Pa. D. & C.4th 115) Page 4 owns a motor vehicle and it is equipped with an ignition interlock device. If the offender does not own a motor vehicle, or leases a motor vehicle, he or she must wait two years before driving privileges are restored. If the offender owns two or more vehicles, he or she must have an ignition interlock installed on all of the vehicles. FN5. Suspect classes are limited to race, national origin, and for purposes of state, as opposed to federal law, alienage. Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672 (1998). Sensitive classes are limited to gender and legitimacy. Id. In Curtis v. Kline, 542 Pa. 249, 257, 666 A.2d 265, 269 (1995) the Pennsylvania Supreme Court stated: "In applying the rational basis test, we have adopted a two-step analysis .... First, we must determine whether the challenged statute seeks to promote any legitimate state interest or public value. If so, we must next determine whether the classification adopted in the legislation is reasonably related to accomplishing that articulated state interest or interests." (citations omitted) The first prong of the analysis is clearly met. Suspending the licenses of persons convicted of driving under '123 the influence is a legitimate state interest. A classification which treats persons differently based upon their ownership of motor vehicles is another matter. The Supreme Court of Pennsylvania stated in Curtis v. Kline, supra at 254-56, 666 A.2d at 267-68: "The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly .... However, it does not require that all persons under all circumstances enjoy identical protection under the law .... The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment .... and does not require equal treatment of people having different needs .... The prohibition against treating people differently under the law does not preclude the Commonwealth from restoring to legislative classifications .... provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation .... In other words, a classification must rest upon some ground of difference which justifies the classification and has a fair and substantial relationship to the object of the legislation .... "Judicial review must determine whether any classification is founded on a real and genuine distinction rather than an artificial one .... A classification, though discriminatory, is not arbitrary or in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification .... In undertaking its analysis, the reviewing court is free to hypothesize '124 reasons the legislature might have had for the classification .... If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom of the distinction...." (citations omitted) (emphasis added) Applying the above analysis to Act 63, we are satisfied that to treat offenders differently based upon the number of vehicles owned by each creates an arbitrary classification which does not bear a fair and substantial relationship to the object of the legislation. Legislation that prohibits a multiple DUI offender from operating a vehicle that is not equipped with an ignition interlock device would be reasonable. Legislation that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender. Likewise, to require the offender to actually own a vehicle that is equipped with the device in order to secure a restricted license bears no reasonable relationship to the object of the legislation. It does not take long to come up with numerous examples of just how arbitrary and unreasonable the classification in Act 63 is when applied to owners of multiple vehicles. It makes no sense, nor does it serve any legitimate purpose, to require an offender's spouse, or other person the offender owns a vehicle with, to operate that vehicle equipped with an ignition interlock device so that offender can operate a similarly equipped '125 separate Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · .Page .6.of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.Pl.) (Cite as: 54 Pa. D. & C.4th 115) Page 5 automobile. [FN6] Nor is it rational to have the offender's child, attending college, equip a vehicle being used at school with such a device, simply because it is titled in the parent's name. Perhaps the most absurd result occurs in situations where the offender owns several vehicles which are operated solely by employees. A plumber with multiple service vehicles comes to mind. It serves no rational purpose to have all of those vehicles equipped with an ignition interlock device. [FN7] FN6. We are not aware if it is even possible for an ignition interlock device to be programmed to operate using the breath samples of more than one person. FN7. We have considered the possibility that an offender might be more likely to drive his or her unequipped vehicle in violation of a restricted license. However, this does not provide a rational basis for the classification. Ownership of the vehicles will not make the offender more or less likely to violate the law. If the offender cannot obtain a restricted license because of the inability to afford an ignition interlock device on all of his or her vehicles, is that person any less likely to violate the law by driving without a license? The classification is no less arbitrary or unreasonable when applied to non- owners. An offender who is a member of a household in which all of the vehicles are leased, rather than owned, is prohibited from obtaining a restricted license. An offender who drives a vehicle titled in the name of a spouse, the student who drives a vehicle titled in his parent's name, and the employee using a company-owned vehicle, are all prohibited from obtaining a restricted license, even if the owner of the vehicle is willing to allow it to be equipped with an ignition interlock device. Again, it serves no rational purpose to require that the vehicle actually equipped with the device be owned by the offender. '126 In summary, limiting multiple DUI offenders following a one-year license suspension to a restricted license during a second year that prohibits them from operating a motor vehicle unless it is equipped with an ignition interlock device would be sufficient to accomplish the goal of the legislation. Adding the requirement that the offender actually own a vehicle, and that every vehicle owned by the offender be equipped with the device, is arbitrary, unreasonable, and therefore, unconstitutional. Defendant further maintains that Act 63 violates the due process clause of the United States Constitution. Defendant's conviction for driving under the influence will result in a ono-year suspension of his operating privilege under the Vehicle Code at 75 Pa.C.S. §1532(b)(3). Act 63 adds a second year to the suspension unless the Department of Transportation receives a certification from the sentencing court that an ignition interlock system has been installed on each motor vehicle owned by a defendant. In Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994), the Supreme Court of Pennsylvania stated that a license suspension is a collateral civil consequence and not a criminal penalty even when the suspension is triggered by a criminal conviction. See also, PennDOT v. McCafferty, 563 Pa. 145, 758 A.2d 1155 (2000). By amending the Judicial Code, the legislature in Act 63 has turned the courts of common pleas into an agent for the Department of Transportation in determining eligibility for the reinstatement of an operating privilege. The court is not merely notifying the department of a defendant's conviction as it does to trigger a one-year suspension under 75 Pa.C.S. §1542 (b)(3). Rather, the court determines eligibility for a restricted license, which '127 the department must issue if the court determines that defendant is eligible, but cannot issue absent that determination. In Sweeney v. Tucker, 473 Pa. 493, 507-508, 375 A.2d 698, 705 (1977), the Supreme Court of Pennsylvania stated: "[The] basic precept of our form of government is that the executive, the legislature and the judiciary are independent, co-equal branches of government .... The dividing lines among the three branches 'are sometimes indistinct and are probably incapable of any precise definition.' ... Under the principle of separation of the powers of government, however, no branch should exercise the functions exclusively committed [to the] other branch." (citations omitted) (emphasis added) Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · Page 7 of 7 54 Pa. D. & C.4th 115 2001 WL 1846970 (Pa. Com.Pl.) (Cite as: 54 Pa. D. & C.4th 115) Unlike the preparation of a presentence report when court personnel compile information for the court to use in exercising sentencing authority, and which is subject to challenge for accuracy by the defendant and the Commonwealth in the framework of an adversarial criminal case, Act 63 requires that the court exercise an executive function in furtherance of the collateral civil consequence to defendant of a license suspension for a conviction for driving under the influence. There is no mechanism for a defendant to seek a certification from the court that an ignition interlock system has been installed on each motor vehicle owned. Nor is there a mechanism for a defendant to challenge entitlement to a certification. If, as the agent for the Department of Transportation, the court makes ap. improper certification, the department is without recourse. '128 The function of the judicial branch is to apply and interpret the law in an adversarial framework. In PennDOT v. McCafferty, supra, the Supreme Court of Pennsylvania stated that the suspension of an operating privilege, even though driving is a privilege and not a right, requires adherence to procedural due process under the Fourteenth Amendment to the United States Constitution. Thus, defendant's interest in the operation of a motor vehicle is a protected one. That requires procedures that constitute due process of law. Ingraham v. Wright, 430 U.S. 651 (1977). The executive function engrafted upon the court by Act 63 of 2000 does not provide procedures that satisfy due process of law. For the foregoing reasons, we conclude that Act 63 of 2000 does not meet constitutional requirements. Accordingly, the following order is entered. [FN8] P~e6 (2) The provision in the sentence of November 13, 2000, providing that "lain approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of defendant's operating privileges by the Department of Transportation, is vacated. (3) All other provisions in the sentence of November 13, 2000, shall remain in full force and effect. END OF DOCUMENT FN8. This resolution makes it unnecessary to address defendant's further claim that Act 63 of 2000 violates Article III, Section 3 of the Pennsylvania Constitution by containing more than one subject. ORDER And now, February 12, 2001, it is ordered: (1) The motion of defendant for partial post-sentence relief, is granted. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works EXHIBIT 'C' . Page .2.of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) Only the Westlaw citation is currently available. Commonwealth Court of Pennsylvania. Keith R. WATTERSON, V. COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant. No. 1055 C.D.2002. Submitted Sep. 13, 2002. Decided Feb. 7, 2003. Page 1 Department of Transportation did not have independent authority, under statute setting forth additional driver's license restoration requirements, to require licensee who had been convicted of driving under the influence (DUI) to install ignition interlock devices on all vehicles he owned as a requirement to restoring his license, even though court of common pleas failed to comply with statutory mandate of requiting court to order installation of interlock devices after second DUI conviction; ignition interlock requirement could only be imposed by court order, and court did not issue order. 42 Pa.C.S.A. §§ 7002(b), 7003. Timothy P. Wile, Asst. Counsel In Charge, Harrisburg, for appellant. P.J. Redmond, West Chester, for appellee. Licensee who had been convicted of driving under the influence (DUD appealed Department of Transportation's refusal to restore his driver's license until he installed ignition interlock devices on all vehicles he owned. The Court of Common Pleas, Chester County, No. 02-01842, Gavin, J., found in favor of licensee. Department appealed. The Commonwealth Court, No. 1055 C.D. 2002, James Gardner Colins, President Judge, held that Department in absence of a court order did not have statutory authority to require installation of interlock devices. Affirmed. Renee L. Cohn, J., dissented and filed opinion. BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge and COHN, Judge. OPINION BY President Judge COLINS. [FN1] *1 The Department of Transportation, Bureau of Driver Licensing appeals from an order of the Court of Common Pleas of Chester County that denied the Bureau's motion to quash the statutory appeal of Keith R. Watterson and sustained Watterson's appeal from the Bureau's requirement that he place an ignition interlock on all vehicles he owns before it will restore his license. We affum the trial court. Ill Automobiles ~::~144.3 48Ak144.3 Most Cited Cases Assuming that licensee's appeal was untimely, equitable relief in the form of an appeal nunc pro tunc was appropriate in case in which Department of Transportation acted without authority of law in imposing a license restoration requirement that licensee install ignition interlock devices on all vehicles he owned after his second conviction for driving under the influence (DUI). 42 Pa.C.S.A. §§ 7002(b), 7003. [21 Automobiles ~=:*144.3 48Ak144.3 Most Cited Cases Watterson's operating privilege was suspended for three months on July 23, 1991, as a condition of his acceptance of accelerated rehabilitative disposition after he was charged with driving under the influence on March 12, 1991. Watterson's license was subsequently suspended for one year after he was convicted of driving under the influence on January 23, 2001. The trial court did not order Watterson to install an ignition interlock device as required by Section 7002(b) of the Judicial Code, 42 Pa.C.S. § 7002(b). [FN2] The Department, however, in a notice dated April 13, 2001, notified Watterson that, in addition to the one-year suspension of his operating privileges, he was required to install ignition interlock devices on all vehicles he owned before the Department would restore his operating privileges. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · Page 3. .of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) Page 2 On February 28, 2002, Watterson filed an appeal from the Department's refusal to restore his license until he had complied with the Department's ignition interlock requirement. At the hearing before the trial court, the Department moved to quash the appeal on the grounds that it was untimely because, according to the Department, Watterson should have appealed as soon as he received the notice of suspension sent on April 13, 2001. Watterson claimed that he did not receive that notice because he had moved before he was sentenced for the January 23, 2001 conviction. The Department countered that it had processed a change of address for Watterson on January 11~ 2001. The trial court did not decide the issue of timeliness, but instead denied the motion to quash on the grounds that only the trial court has the authority to impose the ignition interlock requirement and that the Department cannot impose it absent a court order. Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth.2002). The Department brought this appeal. The questions the Department presents for our review are whether the trial court erred when it denied the Department's motion to quash the appeal as untimely and whether the Department has an independent mandate to impose the ignition interlock requirement where it is not ordered by a court of common pleas. [FN3] Although Schneider had two DUI offenses and pursuant to Section 7002(b), the trial court was required to order installation of an ignition interlock device, that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation. Section 7002 provides that only "the court shall order the installation of an approved ignition interlock device...." 42 Pa.C.S. § 7002(b). Because this provision gives a court the sole authority, PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so. 790 A.2d at 366 (footnote and emphasis omitted). The Department argues that 42 Pa.C.S. § 7003 gives it the independent authority to impose the ignition interlock requirement. We disagree. The ignition interlock requirement may only be imposed by an order of the court of common pleas, Schneider. The Department lacks the power to act pursuant to Section 7003 [FN4] absent a court order issued pursuant to Section 7002. The Department lacked the power to impose the interlock requirement in this matter because the court of common pleas never entered an order that would allow it to act. The Department's requirement is void ab initio. Accordingly, the order of the Court of Common Pleas of Chester County in this matter is affirmed. [1] We find no error in the trial court's nunc pro tunc consideration of the merits of Watterson's appeal, even though it may have been untimely, because, as we explain below, the requirement imposed on Watterson was imposed without the authority of the law and was void ab initio; equitable relief, if necessary, is appropriate in such an extraordinary circumstance. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001). ORDER AND NOW, this 7th day of February 2003, the order of the Court of Common Pleas of Chester County in this matter is affirmed. DISSENTING OPINION BY Judge COHN. *2 [2] We f'md that the trial court acted correctly in relying on Schneider to strike the ignition interlock requirement imposed on Watterson by the Department. In Schneider, we considered the case of a motorist who had been convicted of a second DU1 offense where the court did not impose an ignition interlock requirement, but the where the Department had attempted to impose it independently. The facts are the same in the case before us. In deciding Schneider we said Respectfully, I dissent. My view requires me to restate the facts in detail. On July 23, 1991, Keith R. Watterson's (Licensee) operating privilege was suspended for three months as a condition of his acceptance into an accelerated rehabilitative disposition program due to a charge of driving under the influence (DUI) on March 12, 1991, in violation of Section 3731(a) of the Vehicle Code, 75 Pa.C.S. § 3731(a). On August 29, 2000, Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · .Page .4.of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) Page 3 he was again arrested for DUI, and was subsequently convicted on January 23, 2001. He completed the one-year suspension mandated by Section 1532(b)(3) of the Vehicle Code, 75 Pa.C.S. § 1532(b)(3). The Common Pleas Court, however, did not order the installation of an ignition interlock device as a condition to the restoration of Licensee's operating privilege. In a suspension notice dated April 13, 2001, the Department of Transportation, Bureau of Driver Licensing (Bureau), notified Licensee that, as a consequence of his DUI conviction on January 23, 2001, his operating privilege was being suspended for one year, effective January 23, 2001. That same notice also stated: *3 As a result of your conviction for driving under the influence, you are required by law to have all vehicle(s) owned by you equipped with an approved ignition interlock system before your driving privilege can be restored. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. You will receive more information regarding this requirement approximately 30 days before your eligibility date. [FN1] (Certified Record, Commonwealth's Exhibit # 1.) On January 11, 2002, the Bureau processed a change of address form for Licensee. At that time, the Bureau advised Licensee that his request for restoration of his operating privilegecould not be processed because he was still in prison. There was no mention in the letter as to any requirement for an interlock device. On February 28, 2002, Licensee filed an appeal from the refusal to restore his license, which his counsel characterized as imposition of a condition that he be required to install an interlock system on his vehicle. (N.T. 3.) He did not challenge the initial one-year suspension; indeed, it had already been served. At the hearing, the Bureau's counsel moved to quash the appeal as untimely. He argued that the appealable order was the one mailed April 13, 2001, and that an appeal in February 2002 was well beyond the thirty-day appeal period. In support of its motion to quash, the Bureau had admitted into evidence documents certified under seal from the Secretary of Transportation and the Director of the. Bureau, including the April 13, 2001 notice of suspension that had been sent to Licensee and had informed him of the requirement of an ignition interlock. Licensee's counsel asserted that Licensee did not receive the April 13, 2001 notice of suspension since he had moved before he was sentenced on the latest DUI offense. When Licensee's counsel argued that Licensee had changed his address fourteen months previously (N.T. 3-4), counsel for the Bureau directed the trial court's attention to the documents that showed that the Bureau processed a change of address on January 11, 2002. Although the trial judge gave Licensee an opportunity to testify that he had changed his address with the Bureau on a date prior to January 11, 2002, Licensee's counsel did not put his client on the stand. (N.T. 4). The trial court, however, denied the motion to quash, apparently because it believed that the Bureau's action violated Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth.2002). In that opinion, this Court held that under the Interlock Law, only a trial court has authority under Section 1532(b)(3) to impose the ignition interlock requirement and that the Bureau has no authority to do so. Based on that holding, the trial court concluded that the Bureau's action was void. [FN2] Thus, the question the trial court was faced with is whether one waives the right to challenge an order that the court believes is void where no timely appeal is taken from that order. [FN3] *4 On the merits, the trial court ruled in favor of Licensee on the basis Schneider was controlling precedent. The Bureau appealed to this Court. On appeal, the Bureau asserts that the trial court erred in denying the motion to quash on the basis the appeal was untimely. I begin with the notion that, under Schneider, the Bureau's action was void for want of authority since that was the basis for the denial of the motion to quash. Careful review of the Bureau's April 13 notice reveals that it did two things. First, it clearly suspended Licensee's operating privilege for one year. That action is not, in any way, challenged here. In addition, however, the notice indicates that /f Licensee fails to comply with the requirement to have any vehicle owned by him equipped with an Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · Page .5.of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) Page 4 approved ignition interlock system, his driving privilege cannot be restored and he will suffer an additional one year suspension. This language can best be viewed as conditioning restoration of the operating privilege upon future activities. In a similar situation, we held that a notice that conditioned possible vehicle registration suspension on a future failure to provide proof of financial responsibility regarding automobile insurance coverage was not a f'mal appealable order and, thus, vacated a trial court order affirming the suspension action taken by the Bureau of Motor Vehicles, as the Bureau was then titled. Department of Transportation, Bureau of Motor Vehicles v. Andrews, 143 Pa. Cmwlth. 601, 600 A.2d 622 (Pa. Cmwlth. 1991). We noted in Andrews that finality of an order is a jurisdictional matter and that we were, therefore, obligated to raise it sua sponte. Id. at 624 n. 4. Although "final order" is now defined by appellate rule [FN4] and at the time Andrews was decided it was defined by case law, I think that the result is the same. The order issued on April 13, concerning the one-year suspension, could not, in my view, operate at that time to deny, conditionally, reinstatement. Phrased differentl~,~ the Bureau could not f'mally dispose of the claim of Licensee's right to reinstatement of operating privileges based on possible future events. Therefore, because I conclude that the order, as to the refusal to reinstate, was not final, the trial court lacked jurisdiction to decide the matter before it; because appeals to it, absent a specific statute to the contrary, or leave to appeal an interlocutory order, must be from final orders. Section 933(a) of the Judicial Code, 42 Pa.C.S. § 933(a) ("each court of common pleas shall have jurisdiction of appeal from f'mal orders of governmental agencies ..."). Accordingly, I conclude, as the Court did in Andrews, that the trial court's order was void for lack of jurisdiction and its order should be vacated. But, while the Common Pleas Court's order may be void, the Bureau has not issued an order at all. Therefore, in my view, it should be directed to issue an order with regard to Licensee's request for restoration. Should it refuse to restore the license, that order could be appealed by Licensee to the trial court under Section 933 of the Judicial Code within 30 days of its mailing date in accordance with Section 1550(a) of the Vehicle Code, 42 Pa.C.S. § 1550(a). The issue in that appeal would be whether the Bureau erred in refusing to restore the license for an additional year where the licensee did not apply for an ignition interlock restricted license and the trial court had not ordered an ignition interlock device to be installed. *5 I also feel that the nature of these proceedings requires us to address the Schneider case and its progeny because of what I believe was a mistaken assumption that the Bureau's action was void based upon the holding in that case. Hence, I will do so. The trial court believed that Schneider stood for the proposition that the Bureau could not refuse to restore operating privileges of a multiple DUI offender in a case where the criminal court had not entered an order requiring that an interlock system be put on a licensee's vehicle; therefore, its refusal to restore License's operating privilege at the end of the first year suspension was a void act. The Bureau maintains, however, that it has an independent mandate under Section 7003(5) of the Judicial Code, 42 Pa.C.S. § 7003, to refuse to restore operating privileges for an additional year where the licensee does not apply for an interlock restricted license. That is an issue not decided in Schneider or its progeny. Section 7003 of the Judicial Code states: Additional driver's license restoration requirements In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. § 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · .Page 6. of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) Page 5 thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C .S. § 1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 or a similar out-of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). *6 (Emphasis added.) It is imperative to recognize that, while the trial court is mandated under Section 7002 to order the ignition interlock system in a case where there is a one-year suspension for two or more convictions for DUI, it is the Bureau who is mandated to refuse to restore operating privileges for an additional year where this is not done. What Schneider said is that the Bureau has no authority under Section 1532(b)(3) to demand that the ignition interlock be installed or to demand that the trial court issue an order to that effect. [FN5] As I read Schneider, the Court never said that the Bureau could not refuse to restore operating privileges for an additional year under Section 7003(5) where licensee does not apply for an ignition interlock restricted license. The Bureau's action under this Section is separate from and is not dependent upon whether the trial court has ordered the installation of the interlock device. Indeed, under Section 7003 of the Judicial Code, Licensee is not eligible for restoration of operating privileges unless he has applied for an interlock restricted license, and the Bureau has a non- discretionary duty to refuse restoration of the license for one additional year. That is simply what the Bureau seeks to do here. By prohibiting it from doing so, the majority is re-writing, by judicial fiat, an explicit statutory directive, an act the Court is not permitted to do. [FN6] Therefore, in my view, the trial court erred when it concluded that the Bureau's action was void under Schneider. FN1. This case was assigned to this author on October 4, 2002. FN2. Section 7002(b) provides: Second or subsequent offense.--In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. FN3. Our standard of review is limited to determining whether the necessary findings are supported by the evidence or whether the trial court committed an error of law or abused its discretion. Todd v. Department of Transportation, Bureau of Driver Licensing, 555 Pa. 193, 723 A.2d 655 (1999). FN4. § 7003. Additional driver's license restoration requirements In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. § 1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-State offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved Copr. © West 2003 No Claim to Orig. U.S. Govt. Works .Page 7. of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa.Cmwlth.)) P~e6 ignition interlock system. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. § 1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C .S. § 1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. § 3731 or a similar out-of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). FN1. Section 7002(b) of the Judicial Code, 42 Pa.C.S. § 7002(b), provides: In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (Emphasis added.) FN2. According to Black's Law Dictionary, 1568 (7th ed. 1999), when something is "void" it is "[o]f no legal effect; null." Case law is well settled that where there is no authority to act, an order is void. See, e.g., Commonwealth of Pennsylvania ex rel. Pennsylvania Securities Commission v. Allamanda Investment Co., 37 Pa. Cmwlth. 33, 388 A.2d 1141 (Pa. Cmwlth. 1978). FN3. As the trial court phrased it, "I can't see how a party has the duty to timely appeal from an act that you [the Bureau] are not authorized to do in the first instance." (N.T. 6.) FN4. Pa. R.A.P. 341(b)(1) defines a "f'mal order" as one that "disposes of all claims and of all parties...." FN5. We wrote, "PennDOT claims it has an independent mandate from the General Assembly to ensure that the device is installed ... Although ... the trial court was required to order installation of an ignition interlock device ... that failure does not mean that PennDOT has been given authority to override the trial court's order and require installation .... PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so." Schneider, 790 A.2d at 366 (footnote omitted). Accord Turner v. Department of Transportation, Bureau of Driver Licensing, 805 A.2d 671 (Pa. Cmwlth.2002). FN6. Giacobello v. Board of Elections, 14 Pa. Cmwlth. 376, 322 A.2d 429 (Pa. Cmwlth.1974) (for a court to rewrite a portion of a statute is "to erode the effect Copr. © West 2003 No Claim to Orig. U.S. Govt. Works · ,Page 8, of 8 2002 WL 31986405 --- A.2d --- (Cite as: 2002 WL 31986405 (Pa. Cmwlth.)) of the statutory provision by an unwarranted invasion by the judiciary into the legislative field.") I note, additionally, that one seeking a driver's license must apply to the Bureau, Section 1506 of the Vehicle Code, 75 Pa.C.S. § 1506, and further that the Bureau is prohibited from issuing or renewing a driver's license to anyone whose operating privilege is suspended or revoked. Section 1503 of the Vehicle Code, 75 Pa.C.S. § 1503. 2002 WL 31986405 (Pa. Cmwlth.) END OF DOCUMENT Page 7 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works VERI FI CATION I, the undersigned, hereby verify that I am the plaintiff in this action and that the facts stated in the above Petition are true and correct. I understand that false statements herein are made subject to the penalties of Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. March ~ ~' ,2003 WILLIAM R. COO~l WILLIAM R. COON, Appellant COMMONWEALTH OF : PENNSYLVANIA, : PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND, PENNSYLVANIA No. LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, attorney for Defendant, do hereby certify that I this day served a copy of the Appeal from Suspension of Operator's Privilege upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Date: March 18, 2003 George Kabusk, Esquire PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 35 East High Street Suites 201/202 Carlisle, PA 17013-3052 (717) 243-6090 Supreme Court ID # 87380 Attorney for Defendant WILLIAM R. COON, Appellant COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND, PENNSYLVANIA No. LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this :l.a~/__~]y of ~~L_~~__, 2003, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is Ordered that a hearing on the matter shall be held on the / ~ day of ~;~__, at ~ o'clock /41 m. in Courtroom No. ~" of the Cumberland County Courthouse. A Supersedeas is granted pursuant to the Vehicle Code until such time that this Honorable Court resolves this appeal. Pending appeal the Department of Transportation is to restore Appellanrs driving privileges and upon Appellanrs request issue Appellant a drivers license on or after M; Jo Distribution: PA Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104-2516 Law Office of Harold S. Irwin, III, 35 East High St., Suites 201/202 Carlisle, PA 17013 Nathan C. Wolf, Esquire WILLIAM R. COON, Appellant Vo COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1198 CIVIL TERM LICENSE SUSPENSION APPEAL HEARING CONTINUED GENERALLY ORDER OF COURT AND NOW, this 19th day of May, 2003, it appearing that the controlling issue in this case is currently before our appellate courts, and by agreement of the parties, hearing in this matter is continued generally. We will reschedule the hearing upon the request of either party. Pending said hearing, our supersedeas of March 21, 2003, shall remain in full force and effect. By the Court, Edward E. Guido, J. George Kabusk, Esquire For Appellee Nathan C. Wolf, Esquire For Appellant srs WILLIAM R. COON, PETITIONER COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 03 - 11 !98 LICENSE SUSPENSION APPEAL ORDER AND NOW, this O~lr~- dayof ~~ ,2003, the appeal filed in the above referenced matter is REMANDED to the Department and the Department shall CORRECT TIlE RECORD AND RESCIND TIlE REQUIREMENT TIlAT TIlE PETITIONER COMPLY WITIl TIlE REQUIREMENTS OF TIlE IGNITION INTERLOCK LAW, 42 Pa. C.S. 7001-7003, that the Department imposed without a court order as a condition to the restoration of the petitioner's driving privilege as a result of the petitioner's violation of Section 3731 of the Vehicle Code, violation date February 1, 2001. DISTRIBUTION: v(~eorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center, 1101 South Front Street, Harrisburg, PA 17104-2516 ~lqathan C. Wolf, Esquire, 64 South Pitt Street, Carlisle, Pennsylvania 17013 OFFICE OF CHIEF COUNSEL ~ Vehicle & Traffic Law Oivision Riverfront Office Center I101 South Front Street Harrisburg PA 17104-2516 October 20, 2003 The Honorable Edward Guido The Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013 Re: William R. Coon v. Cmwith. of Pennsylvania., Dept. of Trans., Court of Common Pleas of Cumberland County, 03-1198, License Suspension Appeal Dear Judge Guido: The above-referenced matter is an appeal of the imposition of the ignition interlock which the Department imposed without a court order. The petitioner challenged the authority of the Department of Transportation to require the installation of an ignition interlock system in the absence of a court order directing such installation. See 42 Pa.C.S. §7002. The matter was continued generally. Based on the provisions of the recently-enacted law addressing driving under the influence and ignition interlock requirements, the Department adopted a policy in which it revised its position with respect to the imposition of the ignition interlock system and agreed to remove the ignition interlock requirement in those cases where it had not been ordered by the court. I made representations of such policy to Attorney Wolf regarding this case which had been continued and I feel ethically bound to follow through with my representations. Since that policy was adopted the Supreme Court issued Commonwealth of Pennsylvania v. Mockaitis, _ A.2d _ (Pa. 2003), posted on October 17, 2003, which upholds several of the Department's positions regarding the issues concerning the ignition interlock. Please find enclosed a proposed Order for the above-mcmtioned matter. The proposed Order remands the appeal to the Department to update its records and remove the ignition interlock requirement which was imposed by the Department without a court order. GOVERNOR'S OFFICE OF GENERAL COUNSEL TELEPHONE: 717.787.2830 FAX: 717.705.1122 www.dot.state.pa, us I spoke to Mr. Wolf attorney for the petitioner, and he concurs with such a disposition and the proposed order. Cc~ Very truly yours, George H. Kabusk Nathan C. Wolf, Esquire, 64 South Pitt Street, Carlisle, Pennsylvania 17013 Enclosure