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HomeMy WebLinkAbout98-0146 criminal: CUMBERLAND COUNTY, PENNSYLVANIA RANDY L. SHOEMAKER : NO. 98-0146 CRIMINAL TERM : CHARGE: (1) DRIVING UNDER THE INFLUENCE (2) DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKED (DUI-RELATED) ( SUM. ) OPINION PURSUANT TO PA. RULE OF APPELLATE PROCEDURE RULE 1925 On April 28, 1998, the Defendant entered a guilty plea to Count 1, Driving Under the Influence. (75 Pa.C.S.A. § 3731) At the time of the entry of the guilty plea he requested a non-jury trial on Count 3, Driving While Operating Privilege is Suspended or Revoked-DUI related (75 Pa. C.S.A. § 1543(b))-~ At the time scheduled for the non-jury trial the parties stipulated to certain facts and Defendant's driving record was entered into evidence. On June 8, 1998, this Court found the Defendant guilty of Driving Under Suspension DUI related. On June 16, 1998, sentence was imposed on Counts 1 and 2. Defendant filed a timely appeal. Defendant asserts that the evidence presented is insufficient to sustain his conviction for Driving Under Suspension under Section 1543(b) of the Vehicle Code. FACTS At the time of his non-jury trial, the Defendant agreed to stipulate that he was operating a motor vehicle on the highways ~Defendant waived his right to compulsory joinder required under Section 110 of the Crimes Code. (18 Pa. C.S.A. § 110). NO. 98-0146 CRIMINAL TERM of this Commonwealth on December 24, 1997. The parties also stipulated to the admission into evidence of Defendant's PennDOT driving record. A review of that driving record reveals the following, relevant facts: 1) Defendant's license had been suspended for one year, effective October 9, 1996, as a result of a conviction for driving under the influence. (75 Pa.C.S.A. § 3731). 2) His license was never restored at the expiration of that period of suspension. 3) As a result of a conviction for driving without a valid driver's license (75 Pa.C.S.A. § 1501(a)), Defendant's license was suspended for an additional six (6) months commencing December 3, 1997.2 Defendant argues that the above facts are not sufficient to establish that he was under suspension for a D.U.I. related offense on December 24, 1997. For the reasons hereinafter set forth, we must disagree. Section 1543(b)(1) of the Vehicle Code provides as follows: (1) Any person who drives a motor vehicle on any highway or trafficwa¥ of this Commonwealth at a time when 'their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b) (1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary 2The driving under the influence offense and the driving without a license offense both occurred on September 23, 1995. However, the conviction dates were different for each offense. Neither party offered any explanation as to why this was the case. NO. 98-0146 CRIMINAL TERM offense and shall be sen%enced %o pay a fine of $1000 and to undergo imprisonment for a period of not less than 90 days. (emphasis added) Defendant correctly points out that his driving record clearly shows that he was under suspension for a violation of Section 1501(a) of the Vehicle Code at the time of the instant offense. Since section 1501(a) is not an enumerated offense under Section 1543(b), he argues that his conviction thereunder was inappropriate. We recognize that the Defendant's period of suspension for his driving under the influence conviction had expired on October 9, 1997. Had the Defendant taken steps to have his privileges restored we would agree that his conviction under Section 1543(b) would have been inappropriate. However, it has long been the law of this Commonwealth that operating privileges are not automatically restored at the end of a period of suspension. The Defendant himself must take affirmative steps to have those privileges restored. Com. v. Meyer, 225 Pa. Super. 374, 310 A.2d 345 (1973). Furthermore, the 1994 amendment to Section 1543(b) is quite clear that the Section continues to apply "until the person has had the operating privilege restored.''~ 3The 1994 amendment to Section 1543(b) added subsection (2) which provides as follows: (2) This subsection shall apply to any person against whom one of these suspensions has been imposed whether the person is currently serving this suspension or whether the effective date of suspension has been deferred under any of the provisions of section 1544 (relating to additional period of revocation or suspension). This provision shall also apply until the person has had the operating privilege restored. This subsection shall also apply to any revocation imposed pursuant to section 1542 (relating to NO. 98-0146 CRIMINAL TERM In view of the existing case law, and in light of the 1994 amendment to Section 1543(b), the Defendant was still deemed to be under suspension for the driving under the influence offense. Therefore, we feel that we had no choice but to find him guilty as charged. August 24, 1998 By the Edward E. Guido, J. Jaime Keating, Esquire District Attorney's Office H. Anthony Adams, Esquire For the Defendant :sld revocation of habitual offender's license) if any of the enumerated offenses was for a violation of section 3731. (emphasis added)