HomeMy WebLinkAbout94-3562 Civil DEPARTMENT OF TRANSPORTATION : IN THE COURT OF COMMON PLEAS OF
COMMONWEALTH OF PENNSYLVANIA, : CUMBERLAND COUNTY, PENNSYLVANIA
Appellee :
v.
: CIVIL ACTION - LAW
MICHAEL j. WEISHAUPT, :
Appellant : 94-3562 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., November 18, 1994.
In the present Vehicle Code case, Appellant appealed to this
court from a license suspension imposed by the Pennsylvania
Department of Transportation pursuant to Section 1542 of the
Vehicle Code.~ A hearing was held before the writer of this
Opinion on September 2, 1994, at the conclusion of which
Appellant's Petition for Appeal of License Suspension was denied
and the revocation imposed by the Pennsylvania Department of
Transportation pursuant to the habitual offender statute, by notice
dated May 26, 1994, was affirmed.2
On October 3, 1994, Appellant filed a notice of appeal to the
Superior Court from the Order affirming the license suspension.
Pursuant to an Order dated October 11, 1994, Appellant filed a
statement of matters complained of on appeal. In pertinent part,
the statement sets forth the basis of the appeal as follows:
In order to be convicted of the Habitual
Offender statute, 75 Pa. C.S.A. S1542(d), the
Commonwealth must prove that the Defendant was
convicted of three offenses arising from
separate acts .... The Commonwealth failed to
~ Act of June 17, 1976, P.L. 162, Sl, 75 Pa. C.S.A. ~1542
(relating to revocation of habitual offender,s license)
2 Order of Court, In Re: License Suspension Appeal, September
2, 1994.
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prove, or to offer evidence, that these were
separate and distinct acts. The burden is on
the Commonwealth to show that these are
separate and distinct acts to prove a prima
facie case and it is insufficient simply to
present a certified record of the conviction.
This Opinion in support of this court's affirmance of the
Department's revocation of Appellant's license is written pursuant
to Pennsylvania Rule of Appellate Procedure 1925.
STATEMENT OF FACTS
Evidence adduced at the hearing tended to establish the
following facts: On February 9, 1990, Appellant was charged with
three violations of the Vehicle Code: (1) driving under the
influence of alcohol,~ (2) fleeing or attempting to elude a police
officer,4 and (3) exceeding maximum speed limits.5 According to the
certified record of the Department of Transportation6 and to a
certified record from the Clerk of Court of Cumberland County,?
Appellant pled guilty to each of these charges on July 17, 1990.
Subsequently, on April 16, 1994, the Appellant received a citation
for a second violation of Section 3733 of the Vehicle Code (fleeing
or attempting to elude a police officer). Upon conviction of this
~ Act of June 17, 1976, P.L. 162, 51, as amended, 75 Pa.
C.S.A. 53731 (1994 Supp.).
Act of June 17, 1976, P.L. 162, 51, 75 Pa. C.S.A. S3733.
Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S.A. 53362.
Commonwealth's Exhibit 1.
Commonwealth's Exhibit 2.
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last offense, the Pennsylvania Department of Transportation revoked
Appellant's operating privileges for five years pursuant to Section
1542 of the Vehicle Code.8
STATEMENT OF LAW
Revocation of operatinq privileqe under Vehicle Code. Section
1542 of the Vehicle Code9 provides, in pertinent part, as follows:
(a) ~eneral rule. - The department shall
revoke the operating privilege of any person
found to be a habitual offender pursuant to
the provisions of this section. A "habitual
offender" shall be any person whose driving
record, as maintained in the department, shows
that such person has accumulated the requisite
number of convictions for the separate and
distinct offenses described and enumerated in
subsection' (b) committed after the effective
date of this title and within any period of
five years thereafter.
(b) Offenses enumerated. - Three convictions
arising from separate acts of any one or more
of the following offenses committed either
singularly or in combination by any person
shall result in such person being designated
as a habitual offender:
(1) Any offense set forth in section
1532 ( relating to revocation or
suspension of operating
privilege ) ....
Section 1532 of the Vehicle Code~° provides, in pertinent part,
as follows:
Act of June 17, 1976, P.L. 162, Sl, 75 Pa. C.S.A. S1542.
Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S.A. ~1542.
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa.
C.S.A. ~1532(b)(1), (b)(3) (1994 Supp.).
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(b) Suspension
(1) The department shall suspend the
operating privilege of any driver
for six months upon receiving a
certified record of the driver's
conviction of or an adjudication of
delinquency based on any offense
under the following provisions: ...
Section 3733 (relating to fleeing or
attempting to elude police
officer) ....
(3) The department shall suspend the
operating privilege of any driver
for 12 months upon receiving a
certified record of the driver's
conviction of section 3731 (relating
to driving under influence of
alcohol or controlled substance)
Statutory Construction. Several rules of statutory
construction are of assistance herein. "[T]he object of all
interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.-~ "When the
words of a statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters:
... (3) the mischief to be remedied; [and] (4) the object to be
obtained."~2 "In ascertaining the intention of the General Assembly
in the enactment of a statute, the following [presumption] ... may
be used:.., that the General Assembly does not intend a result that
~ Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S.A.
S1921(a) (1994 Supp.).
~2 Act of December 6, 1972, P.L. 1339, S3, 1 Pa. C.S.A.
~1921(c)(3), (4) (1994 Supp.).
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is absurd ... or unreasonable...~3 Furthermore, with regard to the
interpretation of words and phrases of statutes, "[w]ords and
phrases shall be construed according to ... their common and
approved usage...~4
Judicial precedent. Several cases are helpful to an analysis
of the issue of when three convictions are considered to be
separate and distinct offenses for purposes of Section 1542 of the
Vehicle Code (relating to revocation of habitual offender's
license).~5 In one such case, Commonwealth, Dep't of Transp. v.
Frye, 88 Pa. Commw. 380, 489 A.2d 984 (1985), aff'd, 514 Pa. 219,
523 A.2d 332 (1987), the Commonwealth Court held that under Section
1542 the license of a driver is properly revoked following his or
her conviction of three offenses enumerated in the statute
committed within five years even though such offenses were
committed within a single night. "In a single night, Frye
committed four serious violations of the Vehicle Code: (1) driving
under the influence of alcohol; (2) failing to stop at the scene of
an accident involving damage to an attended vehicle or other
property; (3) driving without lights to avoid identification or
arrest; and (4) fleeing or attempting to elude a police officer."
~3 Act of December 6, 1972, P.L. 1338, S3, 1 Pa. C.S.A.
S1922(1) (1994 Supp.).
~4 Act of December 6, 1972, P.L. 1339, ~3, 1 Pa C S.A.
~1903(a) (1994 Supp.). · -
~5 Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S.A. ~1542.
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Id. at 380 n.1, 489 A.2d at 984 n.1 (emphasis added). The court
found no merit in the driver's contention that the three offenses
required to trigger Section 1542 had to occur at three separate,
unconnected points in time. Id. at 383, 489 A.2d at 985 (1985).
The court further stated as follows:
This court has consistently held that the
five-year habitual offender revocation takes
effect whenever there are three convictions on
section 1542(b) offenses, regardless of
whether these offenses are committed within a
narrow time frame or on separate occasions.
This line of cases is firmly grounded on the
legislature's clear intent to classify as a
habitual offender a driver who commits three
enumerated violations "either singularly or in
combination,. (emphasis added). Neither the
common usage of the word "habitual" nor the
statements of individual legislators can
supplant this unambiguous expression of the
General Assembly's will.
Id. (citations omitted). "[S]ection 1542's overall purpose is to
penalize those who repeatedly transgress the motor vehicle law over
a five-year period of time .... .. Id. at 384, 489 A.2d at 986.
With regard to the requirement that the three convictions
represent separate acts for purposes of application of the habitual
offender statute, the Commonwealth Court in Ross v. Commonwealth,
Dep't of Transp., 125 Pa. Commw. 256, 258-59, 557 A.2d 62, 63
(1989), held that "although all three Code violations may be
committed in combination in the course of one general factual
episode, the driver must also have done three completely different
improper things which led to those code violations in order to be
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considered a habitual offender." The court in Ross held that the
offenses of driving without lights and fleeing or attempting to
elude a police officer arose from separate acts, as required for
revocation of one's operating privilege under the habitual offender
statute. Id.
Offenses under Vehicle Codn. The offenses under the Vehicle
Code which are pertinent to this case are as follows:
~3731. Driving under influence of alcohol or
controlled substance
(a) Offense defined. - A person shall not
drive, operate or be in actual physical
control of the movement of any vehicle:
(1) while under the influence of alcohol
to a degree which renders the person incapable
of safe driving;
(4) while the amount of alcohol by
weight in the blood of the person is 0.10% or
greater; or
(5) if the amount of alcohol by weight in
the blood of the person is 0.10% or greater at
the time of a chemical test of a sample of the
person's breath, blood or urine, which sample
is
(i) obtained within three
hours after the person
drove, operated or was in
actual physical control
of the vehicle; or
(ii) if the circumstances
of the incident prevent
collecting the sample
within three hours,
obtained within a
94-3562 CIVIL TERM
reasonable additional
time after the person
drove, operated or was in
actual physical control
of the vehicle.
Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A.
S3731(a) (1994 Supp.).
Fleeing or attempting to elude police officer.
(a) Offense defined. -- Any driver of a motor
vehicle who willfully fails or refuses to
bring his vehicle to a stop, or who otherwise
flees or attempts to elude a pursuing police
vehicle, when given visual or audible signal
to bring the vehicle to a stop, is guilty of a
summary offense ....
Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S.A. ~3733.
APPLICATION OF LAW TO FACTS
In the present case, several factors militate in favor of the
Commonwealth,s position that the Appellant's license was properly
revoked by the Department of Transportation pursuant to Section
1542 of the Vehicle Code. First, the language of the habitual
offender statute and judicial precedent support the proposition
that the offenses which contribute to one's habitual offender
status need not occur at separate, unconnected points in time; the
offenses may occur "either singularly or in combination... Thus,
the fact that two of Appellant's offenses - driving under the
influence and fleeing or attempting to elude a police officer - may
have occurred on the same occasion does not preclude their being
considered separate and distinct for purposes of the habitual
94-3562 CIVIL TERM
offender provision.
Second, the intent of the legislature in enacting the habitual
offender statute was to penalize drivers who commit a number of
serious violations of the Vehicle Code within a certain number of
years. Where such offenses are committed within a briefer period
of time than that specified, the need for remedial action with
respect to a driver would seem to be all the greater. To exonerate
o Appellant~ in this case on the ground that he committed more than
one serious violation during the same episode is not consistent
with the objectives of the legislation or logic.
Finally, the offenses of driving under the influence and
fleeing or attempting to elude a police officer are acts requiring
different elements of conduct and different mental states on the
part of a driver. One must, for instance, voluntarily ingest
alcohol or a controlled substance in order to commit the offense of
driving under the influence, and one must have decided to attempt
to avoid apprehension in the case of fleeing or attempting to
elude. The distinctive means of committing these offenses present
a strong argument against treatment of Appellant's actions of
driving under the influence and fleeing or attempting to elude a
police officer as a single violation for purposes of the habitual
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94-3562 CIVIL TERM
offender provision.~6
For these reasons, it is believed that the Court's Order
denying Appellant's Petition for Appeal of License Suspension, and
affirming the revocation of his operating privilege, was properly
entered.
Matthew X. Haeckler, Esq.
Assistant Counsel
Traffic Safety Section
Department of Transportation
103 Transportation and Safety Bldg.
Harrisburg, PA 17120
Attorney for Appellee
Gregory B. Abeln, Esq.
22 West Pomfret Street
Carlisle, PA 17013
Attorney for Appellant
:re
~6 Cf. Smeal License Suspension, 1 Pa. D. & C.4th 486 (Bucks
County 1988) (driver's act of striking vehicle, with resulting
violations of Sections 3742 [accidents involving death and personal
injury] and 3743 [accidents involving damage to attended vehicle or
property], said to give rise to single violation for purposes of
habitual offender provision).
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