HomeMy WebLinkAbout01-6604COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS
OF
DEPARTMENT OF TRANSPORTATION
PENNSYLVANIA
BUREAU OF DRIVER LICENSING,
Appellee
DAVID A. RICHARDSON, JR.
Appellant
· CUMBERLAND COUNTY,
:NO. 01- t~C~¥ CIVm
· CIVI~ ACTION - I~AW
· LICENSE SUSPENSION APPEAL
PRAECIPE TO PROCEED IN FORMA PAUPERIS
To the Prothonotary:
Kindly allow, David A. Richardson, Jr., Appellant, to proceed informapauperis.
I, James K. Jones, Esquire, attorney for the party proceeding informapauperis, certify
that I believe the party is unable to pay the costs and that I am providing fi-ce legal services
to the party.
.g~'g~K. Jones, Esquir~
Attorney for Appellant
7 Irvine Row
Carlisle, PA 17013
(717) 240-0296
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
ApPellee
V.
DAVID A. RICHARDSON, JR.
Appellant
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01- OLEO'-/ CIVIL
CIVIL ACTION - LAW
: LICENSE SUSPENSION APPEAL
APPEAL FROM DRIVER'S LICENSE SUSPENSION
AND NOW, comes David A. Richardson, Jr., through his attorney James K. Jones,
Esquire, and brings this Appeal From Driver's License Suspension, a statement of which follows:
1. Appellant David A. Richardson, Jr. is an adult resident of Cumberland County,
Pennsylvania, who resides at 1516 Newville Road, Carlisle, Pennsylvania 17013.
2. Appellee Department of Transportation is a Pennsylvania Agency with a mailing
address of Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg,
Pennsylvania 17104-2516.
3. By letter with a mail date of October 24, 2001, Appellee notified Appellant that his
driving privilege would be suspended under §1532(B) of the Pennsylvania Vehicle Code
(75Pa. C.S. §1532(B)) as a result of a Driving Under the Influence conviction on August 21,
2001, a copy of which letter is attached hereto.
Constitutional Challenge to Equal Protection.
4. Appellee has required Appellant to equip all vehicles owned by Appellant to be
equipped with an Ignition Interlock System prior to the restoration of Appellant's driving
privileges.
5. The requirement that all vehicles owned by Mr. Richardson be equipped with an
Ignition Interlock System has no rational basis upon which to support the legislation.
6. The lack of a rational basis upon which to support the legislation causes the Ignition
Interlock System requirement to violate the Fourteenth Amendment to the United States
Constitution and Article I, Section 26 of the Pennsylvania Constitution.
WHEREFORE, Appellant requests this Court to strike the requirement that Mr.
Richardson equip all of the vehicles owned by him with an Ignition Interlock System.
Constitutional Challenge Based Upon Due Process
7. The legislation under which Appellee has imposed the requirement for an Ignition
Interlock System requires the Court of Common Pleas to certify compliance with the statute.
8. The legislation provides no mechanism for Appellant to seek such a
certification from the Court that the system has been installed on each motor
vehicle that he owns.
9. The lack of a mechanism to seek this certification prohibits Defendant from being able
to seek redress in the event he is entitled to such a certification but the Court of Common Pleas
falls to issue one.
10. This lack of a fight to seek redress violates Appellant's fights to due process under the
Fourteenth Amendment to the United States Constitution and his fights under Article I, Section
20 of the Pennsylvania Constitution.
WHEREFORE, Appellant requests this Court to strike the requirement of the installation
of Ignition Interlock Systems on all the vehicles owned by Appellant.
Respectfully submitted,
Jangle. Jones, Esq~e-~
~rt~orney for Appellant
7 Irvine Row
Carlisle, PA 17013
(717) 240-0296
COMMONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: OCTOBER 24, 2001
DAVID A RICHARDSON JR
1516 NEWVILLE RD
CARLISLE PA 17013
WID t 012906114356850 001
PROCESSING DATE 10/17/2001
DRIVER LICENSE t 25005326
DATE OF BIRTH 07/08/1979
LICENSE IN BUREAU
Dear HR. RICHARDSON=
This is an Offi¢lal Not/ce of the Suspension of your Driving
Privilege as author/zed by Section 1532B of the Pennsylvania
Vehicle Code. As a result of your 0B/21/2001 conviction of
violating Section 3751 of the Vehicle Code DRIVING UNDER
INFLUENCE on 12/11/2000:
Your driving privilege is SUSPENDED for a ;eniod of 1
YEAR(S) effective 09/25/2002 at 12:0l a.m.
WARNING= If you are convicted of driving while your
license is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a 1,000 fine AND
your driving privilege will be suspended/revoked for
a MINIMUM 1 year period
This suspension is in addition to any other suspensions al-
ready on your record.
PRISON RELEASE REQUIREMENT (ACT151)
The Court of CUMBERLAND CTY, Court Number 01112, Court Term
2001 has sentenced you to serve a prison term for this vi-
olation. Pursuant to Sect/an 1541(a.1) of the Vehicle Code,
you will not receive credit for this suspension/revocation
or any additional suspension/revocation until you complete
your prison term. The Court must certify Your completion
to PennDOT. You may wish to contact Your probation officer
and/or the Court after Your release to make sure that
PennDOT is properly notified.
COURT ORDER TREATHENT PROGRAN (ACT 122)
Pursuant to Section 15q8(d) of the Vehicle Code, the Court
of CUHBERLAND CTY , Court Number 01112, Court Term 2001 has
ordered you to attend a treatment program for alcohol or
drug addict/on. As a result of the court order, this
suspension/revocation shall remain in effect until the De-
partment is not/f/ed by the above Court that you have suc-
cessfully completed treatment and you are otherwise eligible
for restoration of your driving privilege.
Z~HZTZOH ZHTE~:LOCK r
Before your driving privilege can be restored you are re-
quired by law to have all vehicle(s) owned by you to be
equipped with an Zgnition Znterlock System. This is a result
of your conviction for Driving Under the Znfluence. If you
fail to comply with this requirement, your driving privilege
wi11 remain suspended for an additional year. You will re-
ceive more information regarding this requirement approxi-
mately 30 days before your eligibility date.
PROVIDZNG PROOF OF INSURANCF }
N/thin the last 30 days of your suspension/revocation, we
will send you a letter asking that you provide proof of in-
surance at that time. This letter will list acceptable
documents and what will be needed if you do not own a vehicle
registered in Pennsylvania.
Zmportant: Please make sure that PennDOT is notified if you
move from your current address. You may notify PennDOT of
your address change by calling any of the phone numbers
listed at the end of this letter.
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, OCTOBER 24, 2001, of this letter. Z~ You flle an ap-
Peal In the County Court, the Court w111 glve you a time-
stamped certified copy of the aPPeal. Zn order for your
appeal to be valid, you must send this time-stamped certi-
f/ed copy of the appea! by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 1710q-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON.
01290611455&850
Sincerely,
Rebecca Lo Bickley, Director
Bureau of Driver Licensing
INFORHATION 7=00 a.m, to 9=00 p.m.
IN ~TATE 1-800-952-~600 TDD ZH STATE
OUT-OF-STATE 717-$91-6190 TOD OUT-OF-STATE
WEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-S91-&19!
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee
DAVID A. RICHARDSON, JR.
Appellant
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01- ~,~O~ CIVIL
: CIVIL ACTION - LAW
:
: LICENSE SUSPENSION APPEAL
AND NOW, this ~,q'/~ day of ~)p~p..~Jx.~./ , 2001, upon
consideration of Appellant's Appeal from Driver's License Suspension, a hearing on the matter is
scheduled for the/(-/~ day of /~~'~.- ,200& at ~J z~O q .m.
in Courtroom ¢ of the Cumberland County Courthouse, Carlisle, Pennsylvania.
Pending said hearing, Appellant's driving Privileges shall be restored.
By the Court,
COM. OF PENNSYLVANIA,
DEPT. OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
VS.
DAVID A. RICHARDSON, JR.,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6604 CIVIL
CIVIL ACTION- LAW
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this 8' r day of March, 2002, the appeal of David A. Richardson,
Jr., is SUSTAINED with respect to that portion of his driver's license suspension which reads as
follows:
Ignition Interlock
Before your driving privilege can be restored you
are required by law to have all vehicle(s) owned by
you to be equipped with an Ignition Interlock
System. This is a result of your conviction for
Driving Under the Influence. If you fail to comply
with this requirement, your driving privilege will
remain suspended for an additional year. You will
rece!ve more information regarding this
reqmrement approximately 30 days before your
eligibility date.
Said provision of appellant's suspension is VACATED. The appeal with regard to the
remaining provisions of the driver's license suspension is DENIED and the Department is
authorized to reinstate the motorist's suspension. See Albert Schneider v. Com. of PA., Dept. of
Transp., Bureau of Driver Licensing, 1513 C.D. 2001 (Pa. Cmmwlth. 2002).
BY THE COURT,
K~II/~. Hess, J.
~eorge Kabusk, Esquire
For PennDOT
~J/~es K. Jones, Esquire
For the Appellant
:rim
DAVID A. RICHARDSON, JR.,:
Appellee :
COMMONWEALTH OF :
PEN'NSYLVANIA, DEPARTMENT :
OF TR3%NSPORTATION, BUREAU:
OF DRIVER LICENSING, :
Appellant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 01-6604 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Thursday, February 14, 2002,
in Courtroom Number 4.
APPEARANCES:
GEORGE H. }(ABUSK, Esquire
For the Commonwealth
JAMES K. JONES, Esquire
For the Defendant
INDEX TO EXHIBITS
FOR THE COMMONWEALTH
Ex. No. 1 - certification
MARKE~ ADMITTED
3 4
sub-exhibit 1 - official notice of suspension
sub-exhibit 2 - acknowledgment of
suspension/revocation/disqualification/cancellation
sub-exhibit 3- report of Clerk of Cumberland County
sub-exhibit 4 - driving record
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MR. KABUSK: Good morning,
THE COURT: Good morning.
MR. KABUSK: This is the
Richardson, Jr., versus Commonwealth of
Your Honor.
case of David A.
Pennsylvania,
Department of Transportation, No. 01-6604. This is an
appeal from a notice dated October 24th, 2001, wherein the
Department notified Mr. Richardson that as a result of his
8/21/2001 conviction of violating Section 3731 of the
Vehicle Code relating to Driving Under the Influence on
12/11 of 2000 his driving privilege was being suspended for
a period of one year. Additionally, that notice informed
him of the requirement of the Ignition Interlock. It is my
understanding from the petition and Mr. Jones that the
appeal is solely directed to the imposition of the
Interlock, not to the one-year suspension. Is that
correct, Mr. Jones?
MR. JONES: That's correct, Your Honor.
THE COURT: Okay.
MR. KABUSK: What has been marked as
Commonwealth's Exhibit No. 1 consists of four sub-exhibits.
Sub-Exhibit No. 1 is the official notice of suspension,
dated and mailed 10/24/01, effective 9/25/02.
Sub-Exhibit 2 is acknowledgment of
suspension/revocation/disqualification/cancellation as
required under Section 1541 of the Vehicle Code.
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Sub-Exhibit 3 is report of Clerk of
Cumberland County, convicted 8/21/2001. Seal attached to
the original. And No. 4 is driving record, which appears
in the file of the defendant David A. Richardson,
operator's number 25005326, date of birth 7/8/79, in the
Bureau of Driver Licensing, Harrisburg, Pennsylvania.
I move for the admission of what's been
marked as Commonwealth's Exhibit No. 1.
THE COURT: Ail right.
MR. JONES: No objection, Your Honor.
THE COURT: We will admit it.
MR. KABUSK: Additionally, Your Honor,
as a
matter for the record, I move that the matter be quashed
based on the Court does not have jurisdiction -- subject
matter jurisdiction relating to the imposition of the
Ignition Interlock. And I do recognize that Schneider,
which was filed January 11, 2002, at footnote seven, did
not uphold that position. But for the record I move to
quash based upon the subject matter -- the lack of subject
matter --
THE COURT: Do you have the cite for that
case?
MR. JONES: Your Honor, I
Atlantic is up to November at this point.
reported this decision.
just checked, and
They have not
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THE COURT:
MR. KABUSK:
THE COURT:
your exhibits there
MR. KABUSK:
case, Your Honor.
THE COURT:
MR. JONES:
Okay.
If the court would like a copy.
Maybe you can just put it with
and we will collect it all together.
And that is the Department's
Okay. Mr. Jones.
Your Honor, I don't believe
there is really a dispute as far as the facts in this case.
And, indeed, Mr. Richardson was convicted of a driving
under the influence charge in August.
is
THE COURT:
MR. JONES:
THE COURT:
MR. JONES:
The docket number
of 20017
2001, correct.
In August
August of
Okay.
The docket number is 2001-1112.
And in Judge Guido's sentencing order he did not require
the imposition of the Interlock. And that is confirmed in
PennDOT's Exhibit No. 3, in Box G, indicating that the
Ignition Interlock is not required in this particular case.
As indicated within the decision of
Schneider versus Bureau of Driver Licensing, PennDOT does
not have the authority to impose that. Only the Court has
the authority to impose the Interlock requirement. So
based upon the Commonwealth Court's decision and consistent
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with the decision in Cumberland County not requiring the
Interlock on the driving under the influence charges, I
would move that the Court actually does have subject matter
jurisdiction and that the appeal should be upheld based
upon the decision in Schneider.
THE COURT: Tell me again though what is the
relief, the precise relief, that you are requesting. I
thought I heard a minute ago that you are acknowledging the
propriety of the suspension for a period of one year.
MR. JONES: That's correct, Your Honor.
THE COURT: So what aspect of the notice
then are you appealing from, and what do you want my order
to look like?
MR. JONES: The appeal relates directly
to -- it would be page two of the notice of suspension
Ignition Interlock, requiring that as a condition of
receiving -- or restoring his driving privileges that he
have the Interlock system installed in his vehicle --
THE COURT: So you are asking me to enter an
order that says what the appeal is sustained insofar as...
MR. JONES: Insofar as the requirement for
Ignition Interlock would be stricken.
THE COURT: Okay. So it would not be a
matter of generally sustaining the appeal but the
suspension?
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raised --
MR. JONES: No, Your Honor. The only issue
understood that.
And, of course,
THE COURT: I just want to make sure I
I thought that's what you said. Okay.
the Department takes a contra position. I
am assuming a petition for allowance of appeal was filed in
this case?
MR. KABUSK:
THE COURT:
Yes, Your Honor.
Do you know if an interlocutory
has been granted by the Supreme Court?
MR. KABUSK: I don't know,
else?
THE COURT: Okay. Ail right.
MR. JONES: No, sir.
THE COURT: Okay. Thank you,
(End of proceedings.)
Your Honor.
Anything
gentlemen.
7
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the abovecause and that this is a correct transcript of
same.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Datte
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David A. Richardson, Jr.
go
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 673 C.D. 2002
Submitted:: August 20, 2004
BEFORE:
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE MIRARCHI
FILED: November 17, 2004
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Department) appeals from an order of the Court of
Common Pleas of Cumberland County (trial court) that sustained the statutory
appeal of David A. Richardson, Jr. from the requirement that he install ignition
interlock devices on all vehicles that he owns before lfis operating privileges may
be restored. The Department imposed the requirement under the act commonly
known as the Ignition Interlock Law (Interlock Law), former Sections 7001-7003
of the Judicial Code, 42 Pa. C.S. §§7001-7003,1 following Richardson's one-year
1 Repealed by Section 4 of the Act of September 30, 20'03, P.L. 120 (Act 24). Provisions
relating to ignition interlock are now found at Section 3805 of the Vehicle Code, 75 Pa. C.S.
~3805. Act 24 adopted a sweeping revision and reorganization of Pennsylvania statutes relating
to driving under the influence, including repeal of Chapter 70 of Title 42 Pa. C.S. (the Interlock
Law) and repeal of Section 3731 of the Vehicle Code, as amended, formerly 75 Pa. C.S. §3731,
relating to driving under the influence of alcohol or controlled substance, and the inclusion of
provisions concerning these and related subject matters in a new Chapter 38 of Title 75, relating
suspension under Section 1532(b)(3) of the Vehicle Code, as amended, 75 Pa. C.S.
§1532(b)(3). We affirm.
Richardson was charged with violating former Section 3731 of the
Vehicle Code, as amended, 75 Pa. C.S. §3731 (driving under the influence of
alcohol or controlled substance (DUI)),2 on September 7, 1999 and was placed into
an Accelerated Rehabilitative Disposition (ARD) program. On August 21, 2001,
Richardson was again convicted of committing a DUI offense on December 11,
2000. The sentencing judge did not, however, order Richardson to install an
approved ignition interlock device under former Section 7002(b) of the Interlock
Law, 42 Pa. C.S. §7002(b).3 On October 24, 2001, the Department notified
Richardson that as a result of his August 21, 2001 DUI conviction, his operating
to driving after imbibing alcohol or utilizing drags. 75 Pa. C.S. §§3801-3817. These changes
took effect February 1, 2004, pursuant to Section 22 of Act 24.
2 Repealed by Section 14 of Act 24. A similar provision is now found at 75 Pa. C.S.
§3802.
3 Sections 7002(b) of the Law provided as follows in relevant part:
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 ignition interlock 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.
A licensee's acceptance of ARD is considered a first conviction under Section 7002(b). Section
7002(c). In addition, Section 7003(5), 42 Pa. C.S. §7003(5), provided: "A person whose
operating privilege is suspended for a second or subsequent violation of 75 Pa. C.S. § 3731 ...
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 .... "
2
privilege was suspended for one year effective September 25, 2002, that he must
install approved ignition interlock devices on all vehicles he owned to restore his
operating privilege after serving the suspension period, and that upon his failure to
do so, his operating privilege would remain suspended for an additional year.
Richardson filed a timely appeal, contending that the court had the
sole authority to impose the ignition interlock requirement under Section 7002(b)
of the Law, and because the trial court did not impose such requirement in the
sentencing order, the Department had no authority to do so in the suspension
notice.
After a de novo hearing, at which the Department presented a packet
of certified documents showing Richardson's DUI convictions and driving record,
the trial court sustained Richardson's appeal from the ignition interlock installation
requirement imposed in the suspension notice, relying on Schneider v. Department
of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002),
appeal discontinued (No. 20 MAP 2004, filed March 31, 2004). In Schneider, this
Court held that the courts have the sole authority under former Section 7002(b) of
the Interlock Law to impose the ignition interlock requirement, rejecting the
Department's contention that it has independent authority to impose the
requirement, regardless of whether the sentencing court complied with former
Section 7002(b) of the Interlock Law. The Department's appeal to this Court
followed.4
4 This Court's review is limited to determining whether the trial court's findings of fact
are supported by competent evidence, or whether the trial court committed an error of law or an
abuse of discretion. Frederick v. Department of Transportation, Bureau of Driver Licensing,
802 A.2d 701 (Pa. Cmwlth. 2002).
On appeal, the Department argues that (1) the trial court erred by not
requiring that Richardson "obtain" an ignition interlock restricted operator's
license as a condition of restoration of his operating privilege; and (2) this Court
should reconsider and reverse Alexander v. Department of Transportation, Bureau
of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), appeal granted, __ Pa.
__, 849 A.2d 1129 (2004).
First, the Department does not raise any argument with respect to the
trial court's actual disposition of Richardson's statutory appeal. Rather, it argues
that the trial court, in its order, should have taken the additional step of requiring
that Richardson obtain an ignition interlock restricted operator's license as a
condition of restoration of his operating privilege.
In Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), the
Pennsylvania Supreme Court invalidated Sections 7002(b), 7003(1) and 7003(5) of
the Interlock Law, finding that those sections violated the constitutional doctrine of
separation of powers by delegating to the courts the executive responsibility of
regulating whether and when repeat DUI offenders are entitled to conditional
restoration of their operating privileges. The Court further held that the remaining
sections of the Interlock Law are severable from the invalidated sections, and that
the Interlock Law "still requires recidivist DUI offenders seeking restoration of
driving privileges to apply to the Department for an ignition interlock restricted
license" and "still authorizes the Department to impose an ignition interlock
restriction ... at the expiration of one-year mandatory suspension." Id. at 29-30,
834 A.2d at 502-3.5
5 Before the Supreme Court's decision in Mockaitis, the Legislature amended the Law,
effective September 30, 2003, deleting Section 7003(5) and adding a sentence to Section
7002(b), which provides that the courts' failure to impose the ignition interlock installation
4
Pursuant to Mockaitis, we have consistenl:ly held that the Department
is authorized to issue interlock restricted licenses under Section 7003(2) of the
Interlock Law. See, e.g., McDonald v. Department of Transportation, Bureau of
Driver Licensing, 845 A.2d 221 (Pa. Cmwlth. 2004), and Cinquina v. Department
of Transportation, Bureau of Driver Licensing, 840 A..2d 525 (Pa. Cmwlth. 2004).
Indeed, in its brief, the Department contends that the imposition of a restricted
ignition interlock license, following Mockaitis, is a purely administrative matter.
See Department's Brief, p. 7, n. 5.
Therefore, it is difficult to ascertain why the Department argues that
the trial court erred by not setting forth in its order the requirement that the
restoration of Richardson's operating privileges are dependent upon the issuance of
a restricted license, when the issuance of a restricted license falls within the
purview of the Department's administrative duties.6 Clearly, judicial intervention
is not required under the aforesaid case law to mandate that the Department issue a
restricted license under the Interlock Law. Moreover, the Department never
requested such relief from the trial court. We accordh:tgly find no error in the trial
court's order as it is written.
The Department next argues that this Court revisit and reverse
Alexander. In Alexander, we rejected the Department's argument that the Interlock
Law may be retroactively applied.
The Department's rather exhaustive argument? is again curious, in that
requirement "shall not prevent the department from requiring, .and 'the department shall require"
installation of such device.
6 Richardson does not dispute that the Department has authority to issue a restricted
license under the Interlock Law, but correctly argues that judicial intervention is not necessary
for the Department to issue such a license.
7 The Department's argument on this "non-issue" extends the length of its brief by 21
pages.
(1) Richardson never raised the defense of retroactive application of the Interlock
Law below, (2) the Department did not raise the issue of the holding in Alexander
below, (3) Alexander is currently on appeal before the Supreme Court, and (4) we
have repeatedly 'rejected the Department's attempts to revisit Alexander,
particularly when the issue was not raised below, and certainly in light of the fact
that the case is beyond our jurisdiction on appeal before the Supreme Court. See,
e.g., Conrad v. Department of Transportation, Bureau of Driver Licensing, 856
A.2d 199 (Pa. Cmwlth. 2004). The Department has advanced no argument that
establishes any basis for reviewing the issue under these circumstances.
The trial court's order is accordingly affirmed.
CHARLES P. MIRARCHI, JR., SeniOr Ju"fi'clge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David A. Richardson, Jr.
go
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 673 C.D. 2002
Submitted: August 20, 2004
BEFORE:
HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE MIRARCHI
FILED: November 17, 2004
The Commonwealth of Pennsylvania, De, partment of Transportation,
Bureau of Driver Licensing (Department) appeals from an order of the Court of
Common Pleas of Cumberland County (trial court) that sustained the statutory
appeal of David A. Richardson, Jr. from the requirement that he install ignition
interlock devices on all vehicles that he owns before his operating privileges may
be restored. The Department imposed the requirement under the act commonly
known as the Ignition Interlock Law (Interlock Law), former Sections 7001-7003
of the Judicial Code, 42 Pa. C.S. §§7001-7003,~ following Richardson's one-year
~ Repealed by Section 4 of the Act of September 30, 2003, P.L. 120 (Act 24). Provisions
relating to ignition interlock are now found at Section 3805 of the Vehicle Code, 75 Pa. C.S.
§3805. Act 24 adopted a sweeping revision and reorganization of Pennsylvania statutes relating
to driving under the influence, including repeal of Chapter 70 of Title 42 Pa. C.S. (the Interlock
Law) and repeal of Section 3731 of the Vehicle Code, as amended, formerly 75 Pa. C.S. §3731,
relating to driving under the influence of alcohol or controlled substance, and the inclusion of
provisions concerning these and related subject matters in a new Chapter 38 of Title 75, relating
suspension under Section 1532(b)(3) of the Vehicle Code, as amended, 75 Pa. C.S.
§1532(b)(3). We affirm.
Richardson was charged with violating former Section 3731 of the
Vehicle Code, as amended, 75 Pa. C.S. §3731 (driving under the influence of
alcohol or controlled substance (DUI)),2 on September 7, 1999 and was placed into
an Accelerated Rehabilitative Disposition (ARD) program. On August 21, 2001,
Richardson was again convicted of committing a DUI offense on December 11,
2000. The sentencing judge did not, however, order Richardson to install an
approved ignition interlock device under former Section 7002(b) of the Interlock
Law, 42 Pa. C.S. §7002(b).3 On October 24, 2001, the Department notified
Richardson that as a result of his August 21, 2001 DUI conviction, his operating
to driving after imbibing alcohol or utilizing drugs. 75 Pa. C.S. §§3801-3817. These changes
took effect February 1, 2004, pursuant to Section 22 of Act 24.
2 Repealed by Section 14 of Act 24. A similar provision is now found at 75 Pa. C.S.
§3802.
3 Sections 7002(b) of the Law provided as follows in relevant part:
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 ignition interlock 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.
A licensee's acceptance of ARD is considered a first conviction under Section 7002(b). Section
7002(c). In addition, Section 7003(5), 42 Pa. C.S. §7003(5), provided: "A person whose
operating privilege is suspended for a second or subsequent violation of 75 Pa. C.S. § 3731 ...
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 .... "
2
privilege was suspended for one year effective Septernber 25, 2002, that he must
install approved ignition interlock devices on all vehicles he owned to restore his
operating privilege after serving the suspension period, and that upon his failure to
do so, his operating privilege would remain suspended for an additional year.
Richardson filed a timely appeal, contending that the court had the
sole authority to impose the ignition interlock require'ment under Section 7002(b)
of the Law, and because the trial court did not impose such requirement in the
sentencing order, the Department had no authority to do so in the suspension
notice.
After a de novo hearing, at which the Department presented a packet
of certified documents showing Richardson's DUI convictions and driving record,
the trial court sustained Richardson's appeal from the ignition interlock installation
requirement imposed in the suspension notice, relying on Schneider v. Department
of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002),
appeal discontinued (No. 20 MAP 2004, filed March 31, 2004). In Schneider, this
Court held that the courts have the sole authority under former Section 7002(b) of
the Interlock Law to impose the ignition interlock requirement, rejecting the
Department's contention that it has independent authority to impose the
requirement, regardless of whether the sentencing court complied with former
Section 7002(b) of the Interlock Law. The Department's appeal to this Court
followed.4
4 This Court's review is limited to determining whether the trial court's findings of fact
are supported by competent evidence, or whether the trial court committed an error of law or an
abuse of discretion. Frederick v. Delgartment of Transl~ortation, Bureau of Driver Licensing,
802 A.2d 701 (Pa. Cmwlth. 2002).
On appeal, the Department argues that (1) the trial court erred by not
requiring that Richardson "obtain" an ignition interlock restricted operator's
license as a condition of restoration of his operating privilege; and (2) this Court
should reconsider and reverse Alexander v. Department of Transportation, Bureau
of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), appeal granted, __ Pa.
__, 849 A.2d 1129 (2004).
First, the Department does not raise any argument with respect to the
trial court's actual disposition of Richardson's statutory appeal. Rather, it argues
that the trial court, in its order, should have taken the additional step of requiring
that Richardson obtain an ignition interlock restricted operator's license as a
condition of restoration of his operating privilege.
In Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), the
Pennsylvania Supreme Court invalidated Sections 7002(b), 7003(1) and 7003(5) of
the Interlock Law, finding that those sections violated the constitutional doctrine of
separation of powers by delegating to the courts the executive responsibility of
regulating whether and when repeat DUI offenders are entitled to conditional
restoration of their operating privileges. The Court further held that the remaining
sections of the Interlock Law are severable from the invalidated sections, and that
the Interlock Law "still requires recidivist DUI offenders seeking restoration of
. driving privileges to apply to the Department for an ignition interlock restricted
license" and "still authorizes the Department to impose an ignition interlock
restriction ... at the expiration of one-year mandatory suspension." Id. at 29-30,
834 A.2d at 502-3.5
5 Before the Supreme Court's decision in Mockaitis, the Legislature amended the Law,
effective September 30, 2003, deleting Section 7003(5) and adding a sentence to Section
7002(b), which provides that the courts' failure to impose the ignition interlock installation
4
Pursuant to Mockaitis, we have consisten~ly held that the Department
is authorized to issue interlock restricted licenses under Section 7003(2) of the
Interlock Law. See, e.g., McDonald v. Department of Transportation, Bureau of
Driver Licensing, 845 A.2d 221 (Pa. Cmwlth. 2004), and Cinquina v. Department
of Transportation, Bureau of Driver Licensing, 840 A..2d 525 (Pa. Cmwlth. 2004).
Indeed, in its brief, the Department contends that the imposition of a restricted
ignition interlock license, following Mockaitis, is a purely administrative matter.
See Department's Brief, p. 7, n. 5.
Therefore, it is difficult to ascertain why the Department argues that
the trial court erred by not setting forth in its order the requirement that the
restoration of Richardson's operating privileges are dependent upon the issuance of
a restricted license, when the issuance of a restricted license falls within the
purview of the Department's administrative duties.6 Clearly, judicial intervention
is not required under the aforesaid case law to mandate that the Department issue a
restricted license under the Interlock Law. 'Moreover, the Department never
requested such relief from the trial court. We accordingly find no error in the trial
court's order as it is written.
The Department next argues that this Court revisit and reverse
Alexander. In Alexander, we rejected the Department's argument that the Interlock
Law may be retroactively applied.
The Department's rather exhaustive argument7 is again curious, in that
requirement "shall not prevent the department from requiring, and 'the department shall require"
installation of such device.
6 Richardson does not dispute that the Department has authority to issue a restricted
license under the Interlock Law, but correctly argues that judicial intervention is not necessary
for the Department to issue such a license.
7 The Department's argument on this "non-issue" extends the length of its brief by 21
pages.
5
(1) Richardson never raised the defense of retroactive application of the Interlock
Law below, (2) the Department did not raise the issue of the holding in Alexander
below, (3) Alexander is currently on appeal before the Supreme Court, and (4) we
have repeatedly rejected the Department's attempts to revisit Alexander,
particularly when the issue was not raised below, and certainly in light of the fact
that the case is beyond our jurisdiction on appeal before the Supreme Court. See,
e.g., Conrad v. Department of Transportation, Bureau of Driver Licensing, 856
A.2d 199 (Pa. Cmwlth. 2004). The Department has advanced no argument that
establishes any basis for reviewing the issue under these circumstances.
The trial court's order is accordingly affirmed.
CHARLES P. MIRARCHI, JR., Seni ge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David A. Richardson, Jr.
Vo
No. 673 C.D. 2002
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
AND NOW, this 17th day of November, 2004, the order of the Court
of Common Pleas of Cumberland County in the above-captioned matter is
affirmed.
CHARLES P. MIRARCHI, JR., Seni~ Ju'l:tge
Cert~ea trom tt~e t~ecor~
NOV 1 7 ~004
e. nrl Or~ler ~
IN THE COMMONWEALTH COURT OF PENNSYL VANIA
David A. Richardson, JI.
v.
No. 673 C.D. 2002
Submitted: August 20, 2004
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
f!61/~~D4- (!:~
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE MIRARCHI
FILED: November 17, 2004
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Department) appeals from an order of the Court of
Common Pleas of Cumberland County (trial court) that sustained the statutory
appeal of David A. Richardson, Jr. from the requirement that he install ignition
interlock devices on all vehicles that he owns before his operating privileges may
be restored. The Department imposed the requirement under the act commonly
known as the Ignition Interlock Law (Interlock Law), former Sections 7001-7003
of the Judicial Code, 42 Pa. C.S. gg7001-7003,] following Richardson's one-year
1 Repealed by Section 4 of the Act of September 30, 2003, P.L 120 (Act 24). Provisions
relating to ignition interlock are now found at Section 3805 of the Vehicle Code, 75 Pa. c.s.
~3805. Act 24 adopted a sweeping revision and reorganization of Pennsylvania statutes relating
to driving under the influence, including repeal of Chapter 70 of Title 42 Pa. C.S. (the Interlock
Law) and repeal of Section 3731 of the Vehicle Code, as amended, formerly 75 Pa. C.S. 93731,
relating to driving under the influence of alcohol or controlled substance, and the inclusion of
provisions concerning these and related subject matters in a new Chapter 38 of Title 75, relating
suspension under Section 1532(b)(3) ofthe Vehicle Code, as amended, 75 Pa. C.S.
~1532(b)(3). We affirm.
Richardson was charged with violating former Section 3731 of the
Vehicle Code, as amended, 75 Pa. C.S. g3731 (driving under the influence of
alcohol or controlled substance (DUI)),2 on September 7, 1999 and was placed into
an Accelerated Rehabilitative Disposition (ARD) program. On August 21, 2001,
Richardson was again convicted of committing a DUI offense on December ll,
2000. The sentencing judge did not, however, order Richardson to install an
approved ignition interlock device under former Section 7002(b) of the Interlock
Law, 42 Pa. C.S. g7002(b).3 On October 24, :2001, the Department notified
Richardson that as a result of his August 21, 2001 DUI conviction, his operating
to driving after imbibing alcohol or utilizing drugs. 75 Pa.. C.S. ~~3801-3817. These changes
took effect February 1,2004, pursuant to Section 22 of Act 24.
2 Repealed by Section 14 of Act 24. A similar provision is now found at 75 Pa. C.S.
~3802.
3 Sections 7002(b) of the Law provided as follows in relevant part:
In addition to any other requirements imposed by the court,
where a person has been convicted of a second or subsequent
violation of75 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 ignition interlock 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.
A licensee's acceptance of ARD is considered a first conviction under Section 7002(b). Section
7002(c). In addition, Section 7003(5), 42 Pa. c.s. 97003(5), provided: "A person whose
operating privilege is suspended for a second or subsequent violation of75 Pa. C.S. 93731 ...
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...."
2
privilege was suspended for one year effective September 25, 2002, that he must
install approved ignition interlock devices on all vehicles he owned to restore his
operating privilege after serving the suspension period, and that upon his failure to
do so, his operating privilege would remain suspended for an additional year.
Richardson filed a timely appeal, contending that the court had the
sole authority to impose the ignition interlock requirement under Section 7002(b)
of the Law, and because the trial court did not impose such requirement in the
sentencing order, the Department had no authority to do so in the suspension
notice.
After a de novo hearing, at which the Department presented a packet
of certified documents showing Richardson's DUI convictions and driving record,
the trial court sustained Richardson's appeal from the ignition interlock installation
requirement imposed in the suspension notice, relying on Schneider v. Department
of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002),
appeal discontinued (No. 20 MAP 2004, filed March 31, 2004). In Schneider, this
Court held that the courts have the sole authority under former Section 7002(b) of
the Interlock Law to impose the ignition interlock requirement, rejecting the
Department's contention that it has independent authority to impose the
requirement, regardless of whether the sentencing court complied with former
Section 7002(b) of the Interlock Law. The Department's appeal to this Court
followed.4
4 This Court's review is limited to determining whether the trial court's findings of fact
are supported by competent evidence, or whether the trial court committed an error of law or an
abuse of discretion. Frederick v. Department of Transportation, Bureau of Driver Licensing,
802 A.2d 701 (Pa. Cmwlth. 2002).
3
On appeal, the Department argues that (1) the trial court erred by not
requmng that Richardson "obtain" an ignition interlock restricted operator's
license as a condition of restoration of his operatlng privilege; and (2) this Court
should reconsider and reverse Alexander v. Department of Transportation, Bureau
of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), appeal granted, _ Pa.
_,849 A.2d 1129 (2004).
First, the Department does not raise any argument with respect to the
trial court's actual disposition of Richardson's statutory appeal. Rather, it argues
that the trial court, in its order, should have taken the additional step of requiring
that Richardson obtain an ignition interlock restricted operator's license as a
condition of restoration of his operating privilege.
In Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), the
Pennsylvania Supreme Court invalidated Sections 7002(b), 7003(1) and 7003(5) of
the Interlock Law, finding that those sections violated the constitutional doctrine of
separation of powers by delegating to the courts the executive responsibility of
regulating whether and when repeat DUI offenders are entitled to conditional
restoration of their operating privileges. The Court further held that the remaining
sections of the Interlock Law are severable from the invalidated sections, and that
the Interlock Law "still requires recidivist DUI offenders seeking restoration of
driving privileges to apply to the Department for an ignition interlock restricted
license" and "still authorizes the Department to impose an ignition interlock
restriction ... at the expiration of one-year mandatory suspension." Id. at 29-30,
834 A.2d at 502-3.5
5 Before the Supreme Court's decision in Mockaitis, the Legislatnre amended the Law,
effective September 30, 2003, deleting Section 7003(5) and adding a sentence to Section
7002(b), which provides that the courts' failure to impose the ignition interlock installation
4
Pursuant to Mockaitis, we have consistently held that the Department
is authorized to issue interlock restricted licenses under Section 7003(2) of the
Interlock Law. See, e.g., McDonald v. Department of Transportation, Bureau of
Driver Licensing, 845 A.2d 221 (Pa. Cmwlth. 2004), and Cinquina v. Department
afTransportation, Bureau of Driver Licensing, 840 A.2d 525 (Pa. Cmwlth. 2004).
Indeed, in its brief, the Department contends that the imposition of a restricted
ignition interlock license, following Mackaitis, is a purely administrative matter.
See Department's Brief, p. 7, n. 5.
Therefore, it is difficult to ascertain why the Department argues that
the trial court erred by not setting forth in its order the requirement that the
restoration of Richardson's operating privileges are dependent upon the issuance of
a restricted license, when the issuance of a restricted license falls within the
purview of the Department's administrative duties.6 Clearly, judicial intervention
is not required under the aforesaid case law to mandate that the Department issue a
restricted license under the Interlock Law. Moreover, the Department never
requested such relief from the trial court. We accordingly find no error in the trial
court's order as it is written.
The Department next argues that this Court revisit and reverse
Alexander. In Alexander, we rejected the Department's argument that the Interlock
Law may be retroactively applied.
The Department's rather exhaustive argumene is again curious, in that
requirement "shall not prevent the department from requiring, and the department shall require"
installation of such device.
6 Richardson does not dispute that the Department has authority to issue a restricted
license under the Interlock Law, but correctly argues that judicial intervention is not necessary
for the Department to issue such a license.
7 The Department's argument on this "non-issue" extends the length of its brief by 21
pages.
5
(1) Richardson never raised the defense of retroactive application of the Interlock
Law below, (2) the Department did not raise the issue of the holding in Alexander
below, (3) Alexander is currently on appeal before the Supreme Court, and (4) we
have repeatedly rejected the Department's attempts to revisit Alexander,
particularly when the issue was not raised below, and certainly in light of the fact
that the case is beyond our jurisdiction on appeal before the Supreme Court. See,
e.g., Conrad v. Department of Transportation, Bureau of Driver Licensing, 856
A.2d 199 (Pa. Cmwlth. 2004). The Department has advanced no argument that
establishes any basis for reviewing the issue under these circumstances.
The trial court's order is accordingly afJirrned.
c::Qs
CHARLES P. MIRARCHI, JR., Seni
6
IN THE COMMONWEALTH COURT OF PENNSYL VANIA
David A. Richardson, Jr.
v.
No. 673 C.D. 2002
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
AND NOW, this 17th day of November, 2004, the order of the Court
of Common Pleas of Cumberland County in the above-captioned matter is
affirmed.
~
CHARLES P. MIRARCHI, JR., Seni
r-'~'
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Cl
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