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Home My WebLink About2004-5873 Civil DAVID DOMITROVICH, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-5873 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL OPINION AND ORDER OF COURT Bayley, J., February 10, 2005:-- David R. Domitrovich filed an appeal from a notice of suspension of his driving privilege for one year. A hearing was conducted on February 7,2005. The Department suspended appellant's driving privilege: As a result of your 10/12/2004 conviction of violating Section 3802B of the Vehicle Code DUI BAC .10-<.16 on 04/30/2004. The notice of suspension included the following: 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. You will receive more information regarding this requirement approximately 30 days before your eligibility date. (Emphasis added.) First, appellant seeks an order reversing the ignition interlock requirement on the following averments: Under 75 PS 3805(g), the Department of Transportation may not impose 04-5873 CIVIL TERM an ignition interlock requirement on a person that has committed an offense under former section 3731, prior to October 1 S\ 2003 without the issuance of a court order. The Appellant has previously entered into ARD on a Chester County DUI charge that occurred in June of 2003 and was prosecuted under 75 PS 3731 (the repealed DUllaw). This is the Appellant's only prior conviction. There has been no court order issued requiring the Appellant to install ignition interlock on his automobiles. Therefore, the Appellant submits that the Ignition Interlock requirement of his suspension is improper. The ignition interlock provision is in the Vehicle Code at 75 Pa.C.S. Section 3805. Subparagraph (g) provides: Prohibition of authorization.- This section shall not give the department authorization to impose an ignition interlock requirement on a person that has committed an offense under former section 3731 prior to October 1, 2003, without the issuance of a court order. (Emphasis added. ) Section 3806, titled Prior offenses, provides: (a) General rule.-Except as set forth in subsection (b),1 the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following: (1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance); (2) an offense under former section 3731 . .. (Emphasis added. ) The current one year suspension with its future ignition interlock requirement is a result of appellant being convicted of driving under the influence on October 12, 2004, 1 Subsection (b) relates to repeat offenses within ten years. -2- 04-5873 CIVIL TERM -3- 04-5873 CIVIL TERM for violating Section 3802(b) of the new Vehicle Code on April 30, 2004.2 It is not based on appellant having previously received the ARD for violating the prior driving under the influence law at 75 Pa.C.S. Section 3731, on June 1,2003. Accordingly, Section 3805(g) does not apply and appellant is not entitled to relief. Second, appellant avers: The Appellant was previously arrested for 75 PS 3731 DUI occurring on June 1 S\ 2004 [sic]. The Appellant entered into ARD for this charge, but was subsequently removed from that program upon the commission of the Cumberland County DUI. The Appellant is currently fighting the Chester County DUI charges and expects to prevail at trial. The Appellant submits that the Cumberland County conviction should be counted as a first offense for license suspension purposes, and as such, he should only be subject to a one-year suspension, without interlock, and with the possibility of an OLL after 60 days. The Department gave appellant notice that his one year suspension is authorized by Section 3804(e)(2)(i). Section 3804(e) provides: Suspension of operating privileges upon conviction.- (1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual's conviction of or an adjudication of delinquency for: (i) an offense under section 3802 . . . (2) Suspension under paragraph (1) shall be in accordance with the following: 2 Section 3802(b) provides: High rate of alcohoL-An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% or less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. -4- 04-5873 CIVIL TERM (i) Except as provided for in subparagraph (iii),3 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter. . .. (Emphasis added.) Appellant was convicted of violating Section 3802 of the Vehicle Code. The one year suspension of his driving privilege is mandated by Section 3804(e). Section 3805 provides: (a) General rule.-If a person violates section 3802 (relating to driving under influence of alcohol or controlled substance) and has a prior offense as defined in section 3806(a) (relating to prior offenses) or if a person has had their operating privileges suspended pursuant to section 1547(b.1) (relating to chemical testing to determine amount of alcohol or controlled substance) or 3808(c) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and the person seeks a restoration of operating privileges, the department shall require as a condition of issuing a restricted license pursuant to this section that the following occur: (1) Each motor vehicle owned by the person or registered to the person has been equipped with an ignition interlock system and remains so for the duration of the restricted license period. (2) If there are no motor vehicles owned by the person or registered to the person that the person so certify to the department. A person so certifying shall be deemed to have satisfied the requirement that all motor vehicles owned by the person or registered to the person be equipped with an ignition interlock system as required by this subsection. . . . Appellant has presented no evidence in support of the averments in his petition whereby the Department is not required to impose an ignition interlock requirement under the current suspension based upon the certification of his prior ARD. Third, appellant avers "that the entirety of Chapter 38 of the Vehicle Code is unconstitutional." Therefore, he maintains that his license cannot be suspended under 3 Subparagraph (iii) relates to a violation of Section 3802(a). -5- 04-5873 CIVIL TERM Section 3804(e) for being convicted of violating Section 3802(b). Appellant makes no specific averments as to the constitutionality of the provisions in the Code that require that the Department suspend a driving privilege or impose an ignition interlock requirement. Any attack on the constitutionality of any other provisions of the Code should have been raised by appellant in his prosecution for violating Section 3802(b) which resulted in his conviction on October 12, 2004. Notwithstanding, this court has already held that the new Vehicle Code at 75 Pa.C.S. Sections 3801-3817, is constitutional. Commonwealth v. Neufeld, _ Cumberland L.J. _ (CP-21-CR-1393- 2004, January 19, 2005). For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of February, 2005, the within license suspension appeal, IS DISMISSED. By the Court, Edgar B. Bayley, J. George H. Kabusk, Esquire For the Department of Transportation Joseph D. Caraciolo, Esquire For Appellant :sal -6- DAVID DOMITROVICH, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-5873 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this day of February, 2005, the within license suspension appeal, IS DISMISSED. By the Court, Edgar B. Bayley, J. George H. Kabusk, Esquire For the Department of Transportation Joseph D. Caraciolo, Esquire For Appellant :sal